Michael Wright: Transgender considerations in recruitment

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The recruitment process is a key area in which discrimination of transgender individuals is likely to occur. Below is a brief guide to the steps HR officers should be aware of to ensure an inclusive and fair recruitment processes.

Terminology

 “Transgender” is an umbrella term used to cover a wide range of individuals who experience a degree of incongruity with their assigned gender and the gender with which they identify.

An individual need not have undergone any hormonal or surgical intervention to be considered transgender. The legislation refers to “transsexual persons” as those individuals with the protected characteristic of gender reassignment.

“Cis” the opposite of trans. It is a term used for individuals who feel their assigned gender and gender identity match.

The legislation

There are two key pieces of legislation in place providing protection for the rights of transgender/transsexual individuals; The Equality Act 2010 (EqA), which provides more general protection for a number of protected characteristics, and the Gender Recognition Act 2004 (GRA) which provides specific rights and protection for trans people.

The Government has indicated that it will be opening consultations with a view to streamlining and de-medicalising the GRC process in 2018.

In addition to the legal obligations on HR officers, there is a business argument for ensuring a fair process for trans individuals. Employers will want to ensure they attract the best candidates, which will mean not excluding sections of society, or individuals who can provide the skills and qualities they require.

Who does the legislation cover?

The EqA applies to those proposing to undergo, undergoing or those who have completed the process of changing their gender. Individuals who live in the opposite gender and successfully pass as the opposite gender are also protected.

The GRA applies to those who have successfully applied for and received a Gender Recognition Certificate (GRC). To receive a GRC an applicant must have been diagnosed as gender dysphoric, have lived in their acquired gender for 2 years, intend to live in the acquired gender until death and satisfy some basic evidential requirements.

What does the legislation say?

The EqA prohibits direct discrimination, indirect discrimination and discrimination in relation to absences due to gender reassignment. The harassment and victimisation of transgender individuals are also prohibited.

For these reasons, it is important to ensure that the recruitment process is free from anything that could be considered offensive towards a person’s transgender status.

The GRA provides a number of additional rights for those with a GRC with the overarching principle that the certificate holder’s gender becomes the acquired gender for all purposes. Of significant note, the GRA prohibits the disclosure of information relating to a person’s GRC application, or gender history if they already have their GRC, to any other person.

Exception

A person’s transgender status should be irrelevant to their ability to carry out a particular role. However, the EqA provides for a defence in certain circumstances where there is a Genuine Occupational Requirement (GOR) to contravene one of the protections given in the Act. To qualify it must firstly be an occupational requirement, secondly a proportionate means of achieving a legitimate aim and finally the individual to whom the requirement is applied must not meet that requirement.

The legislation gives the example of the need for female counsellors for rape attack victims. The legitimate aim would be to prevent further distress to the victims when providing care and rehabilitation. As such an employer would be able to refuse to employ a trans woman even if they held a GRC. Caution is needed as situations of GORs will be few.

Practical consequences of the legislation?

The GRA makes it a criminal offence for anyone who acquires information about a person’s GRC application or their previous gender to disclose that information to any other person. This will mean where an HR officer receives information from an applicant regarding their trans status they will not be able to pass this information on to an interviewer. There are a few exceptions to this rule, notably where the individual has consented to their information being shared. It is best practice to obtain such consent in writing and care should be taken to only disseminate the information as far as is necessary.

Transgender individuals should be afforded the same opportunities when applying for jobs as Cis individuals. To this end, application forms should, as far as possible, be gender-neutral. It is often a good idea to provide an ‘other’ option when asking applicants for their preferred title. Also consider whether the information you are asking for is strictly necessary. Often, much of the personal information can be obtained after an offer of employment has been made.

Interview questions should focus on the position applied for and be strictly relevant. It is not appropriate to ask about an applicant’s gender history or GRC, even if they are open about their gender status.

Flexibility should be shown when it comes to requesting proof of qualifications. An individual may not be able to have their previous name changed on their certificates if the exam board or qualification in question no longer exists. The same goes for proof of identity. An individual may not be able to amend their birth certificate (particularly if they were born abroad) and so passports or other alternatives should be accepted. If possible, wait until after an offer of employment has been made to complete security checks.

Ensure inclusive HR policies are in place. Where appropriate, these should refer directly to transgender issues. Effective confidentiality and data handling policies will assist with compliance with regards to the prohibition on disclosure of gender history/trans status.

Employees, particularly those directly involved in the recruitment process should be given adequate training on transgender rights and policies, for example, in the appropriate use of pronouns and terminology. Most of the time it will be clear by a person’s appearance as to which gender they identify, if not privately asking their preference is often the best way to proceed.

Finally, where necessary, a health check should be carried out after a provisional offer has been made.  It should be made clear to the applicant that the information will remain confidential with occupational health.

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About Michael Wright

Michael Wright is a partner in the employment, education and pensions team at Hill Dickinson.

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