Here we describe what transgender means, set out the law protecting transgender people from discrimination and suggest the workplace issues to consider when someone is changing gender.
On this page:
- What does ‘transgender’ mean?
- Gender reassignment
- Are trans workers legally protected from discrimination?
- What counts as gender reassignment?
While a person’s biological sex is defined at birth by their reproductive organs and physical differences, their 'gender identity' describes the inner sense of feeling that they are a man or woman.
Transgender, or 'trans', people strongly and consistently identify with a gender other than that they were assigned at birth. They live (or wish to live) permanently in their 'new' gender.
The 2021 Census revealed that 0.5 per cent of over-16s in England and Wales said their gender identity was different from the one they were assigned at birth.
Some trans people do not feel themselves to be either male or female and may identify as non-binary, genderfluid, or genderqueer.
A trans person may or may not be diagnosed with the officially recognised psychological condition of gender dysphoria. This is where clinically significant distress is caused when a person’s assigned birth gender is not the same as the one with which they identify.
Further explanation and information is available from Stonewall, which also contains a glossary of terms.
When a person wishes to live as a gender other than that they were assigned at birth they will go through a process of 'gender reassignment'. This is likely to involve social changes, such as using a new name or changed pronouns ('he', 'she', etc) and/or dressing differently.
Some will wish to undergo a medical and/or surgical transition process to change their bodies. This involves a combination of hormone medication and surgery, or sometimes just hormone treatment, to bring the body more closely in line with the underlying gender identity.
This is a long and arduous process and has implications at the workplace of those undergoing it.
Gender reassignment is a protected characteristic under the Equality Act 2010 meaning it is unlawful to discriminate against a transgender person. This applies whether or not they have undergone any medical treatment to change their birth sex. Protection starts as soon as the person starts to live as a member of the opposite sex.
This law covers England, Wales and Scotland, while Northern Ireland has its own regulations on discrimination on grounds of gender reassignment.
Although the Equality Act currently only recognises two genders - male and female - case law has shown that non-binary workers are also covered by this section of the law.
There are four types of employer conduct that might be considered gender reassignment discrimination under the Equality Act 2010.
The most obvious form of unlawful discrimination is when the employer treats a trans person 'less favourably' than they would someone who is not. This is direct discrimination.
An example would be if someone informed their employer that they planned to live permanently as a different gender, and the employer transfers them away from a role with client contact.
Indirect discrimination occurs when an employer has in place an organisational procedure or practice that puts transgender people at a disadvantage compared with others.
If an employer fails to protect a transgender person from harassment they may be guilty of discrimination, unless they can show they have done everything they could to prevent it.
Victimisation is where an employer treats someone badly because they have made a complaint of gender reassignment-related discrimination or has supported someone who has done so.
In limited circumstances it may be lawful for an employer to discriminate if the action is deemed 'proportionate'. An example might be where the job involves intimate searches.
However, such exceptions do not apply where the person concerned holds a Gender Recognition Certificate.
Guidance on gender reassignment discrimination is provided by the Equality and Human Rights Commission.
The Gender Recognition Act 2004 enables trans people to acquire full legal equality in their acquired gender. It sets out how individuals can apply for a Gender Recognition Certificate (GRC), which changes a person’s legal gender, entitling them to all the legal rights that attach to a person of the acquired gender, for example, in the context of pensions.
The Act also protects the privacy of an individual’s trans status or application for gender recognition. Anyone who acquires information about someone’s trans status may be liable to criminal proceedings if they pass that information onto a third party without the permission of the individual. This applies to employers, trade union representatives and union officials.
The process of changing gender is long and will include a period where the individual lives as a member of the new gender before they undergo surgery.
This will be for a minimum of a year and usually two or more years, and so clearly has implications for their working environment.
The process can be very stressful for the individual and requires support and sympathetic handling from all concerned. Confidentiality is usually especially important.
At the point when someone transitions they will need time off for treatment. They may wish to transfer to another position when they adopt their new gender.
There are many aspects that employers will need to address, such as information and training for managers and colleagues, flexibility in dress codes during transition, use of toilets and changing facilities and relevant harassment policies.
If a trans member approaches a union rep for support, any steps to be taken must be agreed with the member, and the maximum confidentiality must be observed for as long as the member wishes that to be the approach.
The TUC has guidance for union reps on supporting transgender people at work, and the CSP
Checklist for managers
- Be clear on how you stand on trans-phobic behaviour and discrimination. Be prepared to challenge trans-phobic remarks, jokes or behaviour. It is a manager’s responsibility to ensure that all staff are treated equally and are not subjected to discrimination or harassment
- Be prepared to act decisively when you encounter inappropriate behaviour. The NHS is committed to tackling all forms of discrimination and it is part of your job to carry this out at local level
- Gender identity and gender reassignment should be included in equality policies
- Ensure you are aware of your policies and procedures on harassment, bullying and discrimination
- Organise training, information sessions and discussions on the issues.
- Staff undergoing gender reassignment are entitled to sick leave from work for specialist medical appointments and surgery, and possibly paid special leave depending on local agreement
- When an individual has a new gender, all records should be changed and old records should be kept confidential or destroyed
- Remember it is illegal to disclose a trans person’s previous gender status where they hold a Gender Recognition Certificate.
- If you are not sure of your exact responsibilities or need more information and training contact the appropriate department
- Encourage transgender staff to join the CSP LGBT+ network and if possible allow study leave to attend the biannual meetings.
Checklist for stewards
- Be clear on how you stand on transphobic behaviour and discrimination. Be prepared to challenge trans-phobic remarks, jokes or behaviour as part of your steward’s role
- Educate yourself about the issues so you are in a position to give at least some initial advice
- If asked, point the member in the direction of relevant support groups and information sources
- Union records relating to the trans member should be changed where appropriate
- Remember it is illegal to disclose a trans person’s previous gender status where they hold a Gender Recognition Certificate
- Educate members – organise speakers or a short training session for one of your meetings. Informal discussions can be a vital part of education and a short conversation with a member will be more effective than a long lecture!
- Distribute information and posters which advertise union and equality messages and events
- Challenge management – make sure there are equality policies and they have a firm commitment to putting them into practice
- Check all Trust policies to ensure that they do not discriminate against trans staff and if they need revising raise at the Joint Negotiating Committee
- Ensure that trans people are specifically included in anti-harassment, bullying and discrimination policies in place and they are widely publicised
- Put pressure on management to organise training and diversity courses
- Take up cases on behalf of members. These may be difficult, but the CSP Employment Relations and Union Services (ERUS) Department Officers will support you. This may involve using specific procedures or a more general grievance procedure. Occasionally the case may go as far as an Employment Tribunal (ET), in which case the CSP’s solicitors will be involved
- If you think you may have an ET case, be aware of time limits and discuss with your SNO at the outset
- Make sure your members are aware of the CSP network for LGBT+ members and how to join.