As Pride month approaches, our employment law team takes a look at transgender discrimination in the workplace and in particular what employers can do to avoid such behaviour.

What is Transgender Discrimination?

Transgender people are those whose personal identity or gender does not correspond with their sex at birth.  The discrimination and harassment of transgender workers in the workplace is outlawed under the Equality Act 2010 which states:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.  A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment”

Discrimination may take many forms including less favourable pay rises, promotions or training opportunities than other non-transgender employees.

Harassment occurs where a person engages in unwanted conduct related to another person’s transgender identity which has the purpose or effect of violating the other person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.  This may take the form of unwanted or abusive comments or invasive questions about a workers gender identity.

Recruitment site TotalJobs undertook a survey (‘Totaljobs trans employee survey report 2016’) which found that of the 435 participants, many had experienced discrimination:

  • 29% at the recruitment stage
  • 14% in respect of promotions
  • 38% from their colleagues

This suggests as one participant commented that ‘transphobia, however unintentional, is still prevalent in the workplace’.

What can employers do to prevent Discrimination?

In November 2015 the Government Equalities Office issued some helpful guidance on creating a transgender-friendly workplace called “The Recruitment and Retention of Transgender Staff”.  This guidance recognises that a lack of awareness and understanding can lead to employers not adequately supporting their staff.

In order to be “trans friendly” there are some simple steps that an employer can take.  For example, modifying job application forms so instead of asking a prospective employee to identify as “male” or “female”, also including the options of “other” or “prefer not to say”.

Another issue is training and awareness.  Employers may wish to provide all staff with diversity training but at the very least should ensure that senior managers and the HR team have sufficient knowledge and awareness of transgender issues.

Employers should strive to have an open and inclusive workplace where employees feel they can approach them if for example they have an intention to transition.  This conversation should be always be prompted by the employee rather than the employer, but how the employer handles the situation will be crucial in terms of supporting the individual involved as well as managing the reaction from colleagues.

Equal Opportunities and Non-Discrimination Policies

Every employer should have a written equal opportunities policy which is communicated to all members of staff.  This will help to ensure that all employees, regardless of gender, sexual orientation, race or religion will be considered alike when promotional and training opportunities arise which in turn will be a major factor in attracting and retaining talent.

If issues are identified in the workplace, a good employer should be prepared to listen and be supportive and sensitive issues should be dealt with in confidence.   It is important to put an end to discrimination as soon as it is identified because employers can be held vicariously responsible for the actions of their staff.  Individual employees aren’t usually aware that they can also be held individually responsible for their own discriminatory actions and sued in the Employment Tribunal.

In conclusion, employers should always seek to offer all employees a supported and fully inclusive working environment.  Having a diverse workforce will attract and retain the best people to drive the business.

If you would like to find out more about what measures you can adopt in your business to support transgender of transsexual members of staff our specialist employment law team will be happy to discuss these with you.

Finally, from all of us here at Backhouse Solicitors we wish everyone taking part a happy Pride!

The Backhouse Team

Tel:      01245 893400



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