Gender Re-assignment

There are around 5,000 transsexuals in the UK, so the chance of an employer having a transsexual in their workforce at some point is not as slim as you may think.

How do I handle an employee that has gender re-assignment surgery?

Transsexuals are people who change sex by means of what is known as gender reassignment (GRA). With compensation for discrimination on the grounds of gender reassignment potentially unlimited, employers need to both understand and act on their legal obligations towards transsexuals.

Individuals who undergo gender reassignment have a condition called gender identity dysphoria (GID). Medical evidence suggests that this arises from a hormonal imbalance in the womb and manifests itself in the individual feeling that they have been born into the wrong gender role. The recognised medical treatment for the condition is GRA. As part of this process the individual often adopts the new gender role for a year and takes hormone supplements for one to two years before opting for surgery, which is often carried out in stages.

The major challenges or considerations for employers of a transsexual worker include:

How to deal with the individual’s absence during the gender reassignment process?
How to protect and support the individual in the workplace (for example, by managing the reaction of their work colleagues)/
How to avoid discrimination and harassment claims?

An individual who intends to undergo, is undergoing or has undergone GRA will be protected under the Sex Discrimination Act 1975 (as amended) so that less favourable treatment or harassment on these grounds will amount to unlawful sex discrimination. It is not only employees who are protected - job applicants and contractors are covered as well. It is also unlawful for an employer to instruct another person to commit a discriminatory act, for example, by instructing a recruitment agency not to recruit a transsexual person.

A person suffering from GID is also likely to be protected under the Disability Discrimination Act 1995, which means that an employer has a duty to make reasonable adjustments..

Employers will be vicariously liable for the discriminatory acts of their employees unless they can show they took all reasonably practicable steps to avoid the discrimination occurring. In addition, employers have a duty to protect the health and safety of all employees. Since this includes their mental health, employers should ensure that transsexual workers are protected from any intimidation or hostile treatment from colleagues.

Outside of employment, from 4 April 2005, the Gender Recognition Act 2004 has ensured that transsexual people who have successfully registered with the gender recognition panel will be recognised, can marry, and be given a new birth certificate all using their acquired gender.

How should an employer handle an employee that is undergoing or has had gender re-assignment surgery?

Whilst there is no set process for dealing with trans sexuality, it is advisable that you have a procedure in place that Managers or HR can turn to which informs them of a practical way forward when a member of staff announces that they are about to make a gender transition.
In order to ensure that the process is fair and legally compliant there are a number of legal and practical considerations that an employer should consider and I’ve covered these is more detail in the following sections.

Legal and Practicle Considerations

Summary of Keypoints

• Be aware that, although the number of employees who undergo gender reassignment is small, if the situation does arise you will have to ensure that you comply with any applicable legislation.
• Take into account that transsexual employees are protected against discrimination and victimisation by the Sex Discrimination Act 1995 and that individuals who have undergone gender reassignment may apply for a Gender recognition certificate.
• Be aware that information about gender reassignment will be 'sensitive data' for the purposes of the Data Protection Act 1998.
• Ensure that your equal opportunities policies apply to harassment, bullying and discrimination related to gender reassignment.
• Do not disclose information about an employee's gender reassignment without his or her consent.
• Appoint a contact person to manage the process of transition.
• Ensure that the contact person and the employee agree a written action plan.
• Consider whether the employee is to remain in the same role, time off, timing of the change of social gender, dress codes, use of single-sex facilities, review of benefits, record keeping and confidentiality.