The UK Government has published new guidance for employers regarding the recruitment and retention of transgender staff. Its stated aim is to make sure employers are equipped to create an inclusive culture for all of their staff and act as a practical guide for managers. The guidance emphasises that there is a strong business case for employers to get this right, as diverse skills are important for employers in all sectors and there is a wealth of research to show that workplaces that are more inclusive are also more productive.
The guidance makes clear that a person can change gender with or without medical intervention and the guidance applies in both scenarios. This reflects discrimination legislation under which there is no requirement for medical diagnosis or treatment in order to gain protection against discrimination on the grounds of gender reassignment.
The guidance sets out good practice in relation to recruitment procedures, application processes, equality monitoring and HR procedures – as well as advice on how organisations can make sure they present themselves as an inclusive employer on their websites and other branding. The guidance also covers advice on inducting and retaining transgender employees, including specific help for employers around supporting a member of staff who is planning to transition.
Some practical tips from this guidance are as follows:
- Consider whether policies need to be updated to reflect that your company challenges transphobia as well as homophobia and biphobia.
- Include an ‘other’ option on application forms to let applicants identify their gender as they choose (note that the guidance doesn’t go so far as suggesting companies invite the individual to define their gender in a text box rather than using tick box options, but this is something else you may wish to consider).
- Identify a specific contact within the organisation (most likely within the HR team or an LGBT affinity group) for any applicants and employees, should they wish to make contact and have a discussion regarding trans status.
- If a candidate advises a recruitment panel that it is their intention to transition: (i) thank the candidate for their openness; (ii) explain that, if appointed, the company will support the individual; and (iii) remain focused on the purpose of the interview (i.e. does the candidate have the skills and experience for the job?).
- Speak openly to new joiners about what information they would like to make public about their trans status (if any).
- Make sure information regarding previous names and trans status is stored and treated in a secure manner.
- If there is communication about a team member’s trans status, make sure it is practical and answers key questions such as how to address the trans colleague (new name, correct pronoun), how to support the colleague, how to deal with questions that may come from outside the team without breaching confidentiality, etc.
- Ensure trans persons are free to select the facilities appropriate to their gender expression.
- Identify “champions” for particular protected characteristics from amongst the senior management team who will be tasked with raising awareness amongst the wider staff group.
The guidance concludes with a summary of the relevant legal framework. As well as covering discrimination law with which HR and legal professionals will be familiar, the guidance highlights that under the Gender Recognition Act 2004 it is a criminal offence to disclose specific information about a person’s application for a gender recognition certificate or trans status (certain exceptions apply). This is an important reminder that all information provided by a trans individual to their employer in confidence must be kept confidential and securely stored.
Please do not hesitate to contact the Reed Smith London Employment Team if you would like further information or advice on this topic.