A trans employee is someone whose gender identity differs from the gender assigned to them when they were born. Trans employees may just have started to transition, others might have transitioned some time ago. Some may not identify as male or female, or may express their gender differently some of the time, or outside of work.
Your duties as an employer
The Equality Act 2010 protects people who are are taking or have taken any steps towards gender reassignment. This covers all aspects of employment including, recruitment and selection processes, employment-related benefits, training, career development and references. It also covers the delivery of goods, facilities and services. It protects against direct and indirect discrimination, harassment and victimisation.
The Equality Act is clear that ‘gender reassignment’ includes anyone who has taken any steps towards transition and does not require someone to have a Gender Recognition Certificate or to have had any medical intervention. It is also worth remembering that the law protects trans people not only if they have taken any steps to transition, but also if they are perceived to have done so. So in most cases, trans people are protected from discrimination.
Policies and procedures
As an employer, you should ensure that all of your policies and procedures are inclusive of trans staff and clearly communicated to employees. This includes, for example, explicit references to gender identity and gender expression within equality policy statements and to transphobic discrimination within bullying and harassment policies.
You should create a transitioning at work policy which sets out the support that your organisation can offer to staff who are transitioning. This should include guidance around time off for transition-related medical appointments and procedures, and a procedural note on updating all computer and paper records where the name and gender of employees are listed. Stonewall Cymru can help develop this guidance – email firstname.lastname@example.org to find out more.
If you have been informed of a person's trans identity in a professional capacity, you should treat this information as strictly confidential. It is against the law to ask an employee if they have a Gender Recognition Certificate, and if you are provided this information in a professional capacity, it is illegal to pass that information on except in very exceptional circumstances (for example to police, only if the information is directly relevant to the investigation of a crime, or if it is necessary to inform medical professionals in an emergency situation).
At a practical level, if a member of staff is transitioning at work, they may wish to inform their colleagues in order to be referred to by their new name and pronouns and to use gender appropriate facilities. Decisions about how and when these conversations happen should be led by the transitioning member of staff. Until this point, however, the information should be treated as confidential.
Creating a trans-inclusive workplace
Advice and guidance about creating a trans-inclusive workplace is available this guide, developed in collaboration by Stonewall Scotland and the Scottish Transgender Alliance: