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Gender reassignment and work

Most of us will be familiar with The Equality Act of 2010, which prohibits discrimination, harassment and victimisation relating to the protected characteristics such as age, race, maternity, gender. You may not be aware that the Act also covers the characteristic of ‘gender reassignment’.

Gender reassignment refers to a person who:

  • is proposing to undergo
  • is undergoing
  • or has undergone

a process, or part of the process, to reassign their sex by changing physiological or other attributes of sex.

For the first time recently, a ruling at employment tribunal has Four people from different ethnic backgrounds smiling. clarified that gender fluid and non-binary employees are also protected by the Act. In this case it was because the claimant had undergone a process of moving their gender identity away from their birth gender, which means it fell within the gender reassignment definition. While this case law is not binding, it is worth being mindful of individuals with gender complexities and the need for organisations to ensure they are inclusive in their approach to all.

Things to consider if you have an employee going through gender reassignment:

  • Maintaining and respecting the employee’s privacy
  • Using appropriate terminology and language
  • Trusting the individual to choose the appropriate changing / toilet facilities
  • Allowing the individual to select the uniform / dress code which matches their gender identity Business Case for Diversity | Redway HR | Article | Blog | HR Consultancy | Hertfordshire | Harpenden | St Albans
  • Providing paid time off for gender reassignment surgery
  • Accepting their reassignment without requesting a gender recognition certificate
  • Implementing and clear equality, diversity and inclusion policy to set out where your organisation stands on these issues
  • Providing training around equality, diversity and inclusion to all staff
  • Providing appropriate workplace support to individuals

Although there’s no legal requirement to have a written inclusion or diversity policy, it’s a good idea to produce and more importantly, use one.

In some discrimination claims, if employers they can show they took every reasonable step to prevent the discrimination occurring, this can be a strong defence. Having a comprehensive policy, and making sure the policy is reinforced through means such as induction, regular training (which may differ depending on roles in the organisation) and holding people to account where they behave inappropriately, will help employers to distance themselves from liability for acts such as harassment by an individual perpetrator on the team. A lady with a magnifying glass infront of her face, making her left, brown eye appear huge.

Essentially, a policy also demonstrates the organisation takes its legal and moral obligations towards being a diverse and inclusive employer seriously. But a policy alone is not sufficient – it should be lived and breathed in practice, particularly by the organisation’s leaders.

If you need support with policy work, training or creating an inclusive culture get in touch today.