Tom Heys, Karen Baxter, Anna Bond: Supporting bisexual and transgender employees in their workplace

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Tom Heys, Karen Baxter, Anna Bond: Supporting bisexual and transgender employees in their workplace

While much has been done to support the “L” and “G” in “LGBT+”, both the “B” and the “T” are still too often treated as “silent” and overlooked. A recent survey by Stonewall found that bi and trans inclusivity was significantly low among employers, prompting the charity’s executive director to call for more to be done to tackle this problem in the workplace.

What are the pertinent issues and how can employers address them?
How many bi and trans people are there in the UK?

According to research by the Office for National Statistics (“ONS”), around 0.8 per cent of the UK population is bisexual (1.2 per cent say that they are either lesbian or gay). That means there are about 500,000-600,000 bisexual people in the country. There are no reliable or up-to-date statistics on the proportion of transgender people in the UK. The ONS does not currently collate this information, but is considering how best to include it in the 2021 census. The Equality and Human Rights Commission cites a study claiming the figure was around 300,000 in 2009, while more recent commentary suggests that up to 3 per cent of the country could be trans – that’s almost 2 million people. Whatever the true figure, it is evidently not uncommon.

What are the issues?
Bi and trans people are two very different groups, each facing their own discrete issues.

Bisexual
The particular challenges that bisexual people face are often poorly understood (including by others within the LGBT+ community itself). For example, there are a range of harmful and offensive myths surrounding bisexuality, a common one being that bisexual people are hypersexualised commitment-phobes. Another is that bisexual people are merely “going through a phase” and just “kidding themselves” before they get married. The issue of bi-invisibility – also known as “bi-erasure” – is one the bisexual community has faced for years. It occurs when people ignore, discredit or re-explain either someone’s own bisexuality or bisexuality in general. An example could be referring to someone as “straight now” or “gay now”, because of the gender of their current partner. Someone in a same-sex relationship might not be gay and someone in a mixed-sex relationship might not be straight. Bisexual people often experience the need to come out twice (or more) – once when they have a partner of the same sex, and again if they then go on to have a partner of a different sex.

Transgender
According to the Stonewall survey already mentioned, over half of trans employees have been so afraid of discrimination at work that they have hidden the fact that they are LGBT+, while one in eight have been physically attacked by colleagues or customers at work. Trans people have reported a range of attitudes from their managers, including hostility and bullying. In some cases, this has led them to self-harm, harbour suicidal thoughts or quit their jobs.

What does the law say?

Bisexual
Bisexuality can broadly be described as a sexual and/or romantic orientation towards more than one gender/sex. Sexual orientation is a protected characteristic under the Equality Act 2010, which protects individuals from direct and indirect sexual orientation discrimination, harassment related to sexual orientation and victimisation.
Section 12 of the Equality Act defines “sexual orientation” as a person’s sexual orientation towards persons of: the same sex; the opposite sex; either sex. The Equality Act also protects individuals from discrimination because of a perceived sexual orientation, even where that perception is inaccurate. So, for instance, treating a bisexual colleague unfairly because she is believed to be lesbian would fall within the remit of the Equality Act.

Transgender
Gender reassignment is another of the protected characteristics under the Equality Act. People are protected against unlawful discrimination, harassment or victimisation on this basis. A person is protected under the Equality Act if they are undergoing, have undergone or are proposing to undergo a process to change their gender role. A name change or a decision to dress differently is enough to qualify for protection. Importantly, the relevant provisions do not require individuals to have lived in their preferred gender for any period of time, nor do they require an individual to have undergone medical treatment in order to have the protected characteristic of gender reassignment.

What should employers do?

The impact of not being “out” in the workplace is well documented. If employees have to hide who they are or do not feel accepted, they will be less happy, not so productive and more likely to leave. Many employers know this and understand it in the context of their lesbian and gay staff, but less so in relation to bisexual and transgender workers. This can lead to a cost for employers in terms of employee engagement and talent retention.

Here are some ways in which employers can support their bisexual and transgender staff:

Make a day of it. Employers should consider doing something to recognise important dates in the bi and trans calendars. Bi-visibility Day (also known as Celebrate Bisexuality Day) is a globally recognised day on 23 September each year to acknowledge and support the bisexual community. Transgender Day of Remembrance on 20 November is a day to remember people who have been killed for being transgender. It forms part of Transgender Awareness Week, which aims to raise the visibility of transgender people and address the issues they face.

Training and education. Employers should ensure their diversity training is properly dealing with the concerns of bi and trans people that we have set out above. For example, training should draw attention to the dangers of making assumptions about someone’s sexuality based on the gender of their partner, and the dangers of outing a trans individual against their wishes.

Policies. Consider amending your diversity policy so that it contains express references to bisexuality, the specific issues faced by bisexual people and how their experiences are different from gay men and women. Address whether you need a separate and comprehensive trans equality policy, including: a statement of commitment from the organisation: information on the legal protections that trans people have: and advice on the support that an employee transitioning at work can expect to receive.

Web presence. Employers should reflect on how they could be perceived by job applicants – is your workplace openly and demonstrably bi and trans friendly to the outside world? For example, what articles or resources come up in a Google search of [company name] + bisexual or [company name] + transgender? Do you have bisexual or transgender role models who are visible on the internet and social media? Are they mentioned on your recruitment site? Visible role models help set the tone of an organisation.

The smaller things. If your staff are required to carry ID on a lanyard, consider offering both bipride and transpride lanyards (as well as the classic rainbow one). If you are recognising a bi or trans day, consider flying the flag (literally). Consider reclassifying your toilets as gender neutral, avoiding any potential obstacles for a trans person, rather than making them choose and have to justify it. Think about whether you really need a box for “Mr” or “Ms” on your forms.

Conclusion
Significant strides have been made in recent years to advance the rights of gay men and women, both in and out of the workplace. Employers should take stock of their accomplishments to date but be mindful that there remains a lot more to do. In the war for talent, the employers that win will be the ones who manage to attract and retain the most capable and sought-after staff. Making a workplace bi and trans friendly plays a crucial role.

 

Interested in diversity and inclusion in the workplace? we recommend the Diversity and Inclusion Conference 2019.

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About Karen Baxter

Karen Baxter is a Partner and head of the Professional Services Sector Group at Lewis Silkin. Karen is an employment and partnership law specialist, and has extensive experience advising law firms and accountancy practices on employment and partnership related matters, especially issues arising from law firm team moves, discrimination complaints and outsourcing.

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About Tom Heys

Tom Heys is a Legal Analyst at Lewis Silkin. Tom uses data to disprove discrimination, to debunk statistical claims in litigation and analyse pay data to look for areas of risk. Tom is an expert in age discrimination and has expertise in religion and belief issues in the workplace.

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About Anna Bond

Anna Bond is an Associate at Lewis Silkin. Anna advises on a wide range of employment matters with a focus on litigation in both the Employment Tribunal and the High Court, particularly discrimination issues.

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