Katherine Maxwell at Moore Barlow argues that protecting trans rights in the workplace is far simpler than most employers think.
Over the last 10 years, societal awareness of trans rights and the challenges the community faces has grown massively. Unfortunately, this doesn’t necessarily appear to have consistently translated to better workplace environments for trans employees. According to a YouGov Survey, 43 percent of trans people said they had left a job because they found the environment unwelcoming – a shocking increase from 36 percent in 2017.
How to protect the rights of trans employees is one of the challenges clients seek my advice on. Many of them feel overwhelmed by what is undoubtedly a complex issue. However, there are a few reassuringly simple best practice measures which all employers can implement without too much difficulty, which would put them on the right track to becoming a trans-inclusive workplace.
What to prevent
The law itself provides little explicit guidance on supporting trans rights in the workplace, making it trickier for employers to understand their legal responsibilities. Despite this lack of specific instruction, in practice employers are legally obliged to protect their trans employees against workplace discrimination. Hence, they should be considering what they need to do to develop trans-inclusive working environments.
The 2010 Equality Act includes protections against discrimination based on religion, age or sexual orientation. It makes discrimination against individuals because of their sexual orientation, or because they are undergoing gender reassignment explicitly unlawful.
The specificity in the wording demonstrates just how much society’s understanding of gender has developed in the 10 years since the act came into force. Non-binary people (those who feel neither male nor female) are not explicitly referenced, and neither are gender fluid people (those who do not have a fixed gender).
The omission of these groups does not, however, mean they are not protected by the act. An employment tribunal in 2020 concluded that it was clear the law was intended to cover a full spectrum of gender identities.
Employers should, therefore, assume the same protections which apply to their gay or bisexual colleagues also apply to their trans, gender fluid and non-binary employees.
How to prevent it
A good start for any employer looking to become more inclusive, is to establish clear rules about how employees should treat each other. However, with society’s understanding of trans issues constantly evolving, employers cannot create a concrete playbook for trans inclusivity.
The most effective way of keeping pace with our understanding of trans rights is to involve trans employees in the creation of the policies designed to protect them. Regular check-ins are a great way to get the insight needed to tailor HR policies so they work for trans colleagues. It also lets employees who often feel isolated know that their opinions are valued.
Harassment and discrimination from colleagues is sadly a more regular experience for trans, gender fluid and non-binary people than many might think. Trans people are just as likely to suffer discrimination from managers as they are from peers so effective initiatives to tackle this need to involve all levels of the workforce.
Discrimination might come from a simple lack of understanding. Employers must, therefore, commit time and resources to ensuring their workforce is properly educated on trans issues and the rules around discrimination.
If employees have not been keeping pace with the conversation around trans rights, they may not understand what is likely to be offensive or disadvantageous to trans or non-binary people. Making sure all employees understand the challenges faced by their trans, gender fluid and non-binary peers is an important first step in preventing discrimination.
With that understanding established, it is important to make sure all employees understand the law and the workplaces rules. An understanding of the comprehensive list of categories of discrimination the Equality Act protects against should help employees check their behaviour. The employer should also make clear they have zero tolerance policies around trans discrimination, which should embolden trans employees to speak up if they are discriminated against.
The way ahead
All employers have a legal responsibility to prevent trans discrimination against their employees.
The issue is perhaps less complex than some fear though. Employers should adopt simple best practice measures of regularly consulting trans employees and educating their wider workforce on trans issues. If they do that, they will be well on their way to creating trans-inclusive workplaces.
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Katherine Maxwell is Partner and Head of Employment Law team at Moore Barlow.
