Research by Acas published last week has found that employers are not generally aware of the law that applies to trans employees. 

The study revealed that although the Equality Act 2010 protects employees from certain types of discrimination relating to gender reassignment, it is often left to the victims of transphobia themselves to tell their managers what the Act says. Not surprisingly, perhaps, trans people not covered by the Act are more at risk of being treated unfairly because employers have even less understanding of their experiences. 

Currently the protected characteristic of gender reassignment covers those whose gender identity differs from the gender assigned at birth. There is no requirement to undergo specific treatment or surgery. This is because gender reassignment is a personal process. For example, a person who chooses to reassign their gender and lives permanently as the opposite sex without having any hormonal or surgical therapy is protected. 

However, those with a non-binary identity are not explicitly protected under the Equality Act 2010 although a person will be protected if they are discriminated against because of perceived gender. The Equality and Human Rights Commission gives the example of a person with a non-binary identity who is refused entry to a women only swimming pool because the attendant believes the person to be a man. 

The Acas guidance on gender reassignment discrimination makes clear that employers must not disclose an employee's gender identity without their consent unless certain circumstances apply which are set out in law. That being so, employers need to ensure they have clear protocols in place for data management to avoid any non-consensual disclosure. 

The guidance also recommends that employers should:

  • Be aware of sensitivities around terminology when managing trans staff and embed policies and practices so that trans people feel that they belong
  • Provide managers with good quality diversity and inclusion training
  • Treat all trans workers fairly irrespective of whether their gender identity is protected by the Equality Act 2010 or not
  • Consider how to raise awareness of trans issues and encourage the use of LGBT champions. 

Jo Seery of Thompsons Solicitors commented: “The ACAS guidance is welcome but it is clear that the Equality Act 2010 should be amended to make clear that all those who identify as trans are protected. Until then trade union representatives can best provide support to trans colleagues in the workplace”. 

To read the guidance in full, go to: http://www.acas.org.uk/media/pdf/f/3/Gender_reassignment_discrimination.pdf