Making gender inclusivity the norm

Shah Qureshi and Natalie Taylor discuss what a consultation on reform of the Gender Recognition Act means for employers in the property and construction sectors, and how they can already support trans employees in the workplace. The government’s consultation on reforming the Gender Recognition Act 2004 (the 2004 Act) closed on 22 October 2018. We understand that 53,000 responses have been submitted, and the responses are currently being analysed by the government. The 2004 Act was a groundbreaking piece of legislation when it came into force. It finally enabled transgender people to receive legal recognition of their acquired gender. While this was an important and long-awaited step to secure trans equality, the process set out in the 2004 Act has numerous requirements, and the process to legally transition from man to woman or from woman to man is bureaucratic, strenuous, intrusive and expensive. As a result of the complicated process, only 4,910 people have legally changed their gender since the Act came into force. It is clear that the process is outdated and reform was necessary. Government consultation A range of recommendations were made to the government before the consultation deadline. Stonewall Scotland welcomed the consultation and agreed that applicants for legal gender recognition should no longer be required to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The organisation does, however, support the idea of applicants providing a statutory declaration to confirm their intention to live in their acquired gender until death. The Employment Lawyers Association outlined the areas of the 2004 Act which its working party believes require reform. For example, the Act makes it a criminal offence for a person who has acquired information about a person who made an application under the Act to disclose the information to any other person. This is a blanket offence and does not require a mens rea element. The ELA considers this consultation is therefore an important step forward to improve the current legislation and bring the 2004 Act in line with today’s society, both for trans people and also for those working with or assisting trans people on a daily basis. The government’s response to the consultation could lead to a reform of the 2004 Act, of which employers from all sectors, including the property and construction sectors, will need to be aware. What about the Equality Act? While the consultation to reform the 2004 Act has been generally welcomed, there has also been demand for a review into the deficiencies within the Equality Act 2010 (the 2010 Act) in order to protect the trans community. In particular, its narrow definition of gender reassignment, one of the nine protected characteristics, has been criticised by charities and organisations. Under the 2010 Act, it is unlawful to discriminate, either directly or indirectly, harass or victimise anyone who is undergoing gender reassignment. The protected characteristic of gender reassignment only applies to people who are “proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Technically, this only covers transsexuals, but excludes other trans people who have not sought medical assistance to transition from one sex to another. It also excludes those who are bi-gender, agender, have no gender identity and those whose gender identity is non-binary. The Equality and Human Rights Commission has recommended that the terminology in the 2010 Act be updated to ensure full equality and protection for all trans people, and not only those covered by the legal definition – something the ELA supports. According to statistics published by Stonewall, 42% of trans people not living permanently in their preferred gender role feel that they are prevented from doing so because they fear it might threaten their employment status. This is worryingly high, but not surprising. There is still too much stigma attached, and the barriers need to be broken down. It is hoped that enhanced legal protection in the 2010 Act will, over time, improve these worrying statistics. Until then, it is up to employers to take proactive steps to provide a safe and inclusive workplace for their trans employees. Supporting trans employees There are a number of steps employers can take to support trans employees: Update your policies Even though not all trans employees are legally protected under the 2010 Act and are able (or willing) to go through the lengthy and time-consuming gender reassignment process, employers can make sure that their policies are inclusive. This is particularly important in the construction and property sectors, which have historically been male-dominated and which have been criticised for being less inclusive of trans employees. Failure to act in these sectors may leave trans employees vulnerable in the workplace and organisations open to public criticism. Employers can review equal opportunity and bullying and harassment policies to ensure that all employees, irrespective of their gender identity, are protected, treated fairly and respected at work. Creating an inclusive working environment will promote productivity and collaboration within teams and benefit the company’s reputation generally. Implement those policies It is not enough to simply change workplace policies – employers must implement and enforce them if they are going to drive change. This means they should discipline any member of staff who bullies or harasses another member of staff because of their gender identity. It is important to adapt a consistent and fair approach when disciplining staff for breaching the anti-bullying and harassment policies, to avoid any unintended discrimination against other employees. Respect confidentiality Employers have a positive duty to prevent workplace harassment for employees who have a protected characteristic. Under the 2010 Act, gender reassignment and sexual orientation are two examples of the nine protected characteristics. In De Souza E Souza v Primark Stores Ltd [2017] UKET 2206063/2017 the Employment Tribunal condemned Primark for failing to safeguard the confidentiality of its employee who identified as transgender. Primark had failed to keep Alexandra de Souza E Souza’s birth name (which was a male name) off the rota sheets, which resulted in her co-workers learning that she was transgender. The employee was awarded almost £47,500 in compensation because she had been subjected to harassment related to gender reassignment and direct discrimination. To avoid this kind of scenario, employers should put in place adequate systems to safeguard confidential information and agree a plan with the trans employee to avoid accidentally “outing” them. Particular care should be taken to safeguard their confidentiality and to avoid informing their co-workers where possible. Raise awareness Many employers are now starting to make changes which go beyond minimum legal obligations, to show support for transgender employees. Examples include setting up groups and committees to organise activities around events and celebratory days throughout the year. Such occasions can include Pride, National Inclusion Week, National Coming Out Day and International Transgender Day of Visibility. This can demonstrate an employer’s support and make trans employees feel more comfortable at work. The construction industry has been criticised for not supporting LGBT and trans staff. However, industry organisations such as Go Construct are actively encouraging an inclusive and diverse workplace in the construction sector. By making the workplace more inclusive and safe, companies are more likely to recruit and retain talent and increase productivity across the firm. Another way of raising awareness in the workplace is by providing staff training – for example, training to tackle unconscious (or even conscious) biases. Don’t wait for reform There are many things employers in the property and construction industries can do to assist LGBT and trans members of staff until formal change in the law takes place. The proposed reform of the 2004 Act should be a reminder to employers that an inclusive and unbiased workplace should become the norm in 2019. Shah Qureshi is head of Irwin Mitchell’s employment and professional discipline team in London and a member of the ELA working party. Natalie Taylor is an employment solicitor at Irwin Mitchell Photo: WestEnd61/REX/Shutterstock