Gender identity and the Equality Act with Beverley Sunderland

What employers need to know about gender identity and policy.

Gender identity is a sensitive and oft-misunderstood area. We recently published the findings from a piece of research from June 2018 by Crossland Employment Solicitors on transphobia in the UK workplace. We spoke with Beverley Sunderland of Crossland to find out what’s happened in the months since it’s publication.

What’s happened since the research came out?

The Government has now issued its slightly wider consultation paper. They have made it quite clear that they’re not looking at changing the Equality Act, which frankly had to be their starting point because you’ve got the women and equality select committee all saying you need to change the protected characteristics of gender reassignment to gender identity. For me, that’s a bit of a no-brainer, but for some reason, the Government are steadfast in saying no, no, no. We think it’s time we think everybody is protected. But they have issued this consultation and I would like to think that the results of our survey have helped it along its way.

Gender identity and the Equality Act

Beverley Sunderland, Managing Director of Crossland Employment Solicitors transphobia

At the moment, under the equality act, the protection offered is those who propose to, are undergoing, or have undergone, a process or part of a process for the purposes of reassigning sex by changing their physiological or other attributes of sex. So if you were to read that first of all, you might think it is only people who are undergoing actual physical surgery and that is frankly what 88% of the people that we surveyed thought. But as the guidance to the equality act makes quite clear, actually you don’t need to be undergoing treatment or undergoing surgery or indeed have changed your birth certificate from your birth sex to your preferred gender, because they’re all just one part of a much bigger picture when it comes to changing your sex from one to another.

Beverley Sunderland, Managing Director of Crossland Employment Solicitors

One of the concerns is that, as written at the moment in the Equality Act, it doesn’t pick up certain areas of the transgender community. So, for instance, those who are non-binary; those who are gender fluid; are they protected? And I know also those who are inter-sex, they don’t necessarily like to be put together under the heading of transgender because of course inter-sex are people who are born with physical attributes that don’t necessarily match their gender. But they too can be included within transgender if they are indeed transgender themselves.

I think that there is this whole misunderstanding in business about exactly who is protected and indeed a big question mark over whether there are elements of the community who are actually not protected. I would say that don’t forget that the equality act does protect people if colleagues mistakenly assume that they are going through some kind of surgery or process. And in fairness to the Government, that’s what they do say. They say ah yes, but transgender people are protected if there is an assumption that they are going through this process, but it’s a bit poor really to have to fall back on somebody making an assumption. Why not just change the law around gender identity?

Misunderstanding about whose protected

Bear in mind that individuals are protected at the moment, even if they’re not going through surgery, but there is a huge misunderstanding in business that you have to be going through surgery in order to be protected. And I think that by changing it to gender identity, I think it would take away that misunderstanding. Although I have to tell you, after this came out and the press release was issued and I was doing a number of press interviews, I was doing a live radio interview, I won’t mention which station, just a very well-known one, and I kid you not, the interviewer actually said to me on live radio, well, you don’t want some random bloke turning up in a dress at work, do you? I thought I can’t believe you actually just said that. And that is the problem; it’s the changing of perceptions as if anyone would take lightly the decision to change their gender identity at work and that one day they would just turn up wearing a dress, some random bloke as she put it. I think it just went to the heart of the problem.

There was one statistic that just completely stuck in my mind. Crossland’s research found that employers’ typically thought that all transgender workers are legally protected against discrimination despite – a staggering 59% are against the law extending to protect all types of transgender people – 59% – from discrimination such as non-binary. I thought that was staggering. And the other thing was 88% disagreed with having gender-neutral toilets. Everybody has them in their home, don’t they? It is – I find it just bizarre. Of all the things to be concerned about in life, having gender-neutral toilets, I want to say has no one seen Ally McBeal? It worked absolutely fine there, obviously apart from the singing. But yes, it’s a very strange thing to get vexed about.

Should we be following other countries policy lead?

It’s very interesting in terms of the countries that have moved to a model of what’s called non-assessment based. So at the moment, one of the problems is that if people want to change their birth certificate from their birth sex to a different sex, they have to jump through all sorts of hoops, including two medical reports, documents showing you’ve lived in the acquired gender for 2 years, statutory declarations, you have to get the consent of your spouse or end the marriage, it’s pretty draconian. And the list of countries that actually have moved to this non-assessment based framework includes the Republic of Ireland, Denmark, and Argentina. There are other countries that are doing this much better than us. Certainly, there is a lot of pressure for us to move more towards a non-assessment based process.

The workplace experiences of the trans community

I think one of the problems is that the statistics, and certainly Stonewall’s statistics, are that so many trans people actually hide their chosen gender at work and I think our survey said something like 75% of people have never knowingly worked with any transgender person. So I think that is one of the problems – now there have recently been awards and top 20 companies who are best for hiring LGBT employees, but on reading it, my understanding is that it’s primarily to do with more on the side of the lesbian and gay side rather than transgender. So I haven’t personally come across companies who are standout in terms of transgender employees but I would like to hope that particularly with all of this publicity and all of the publicity about our survey findings, the Government’s consultation, that companies are going to wake up and actually realise, particularly with the skills shortage there is looming over us, that companies are going to realise that they need to recruit the best people for the job and that they need to put in place some protection for those who may be perceived by their erstwhile colleagues as being different because of their gender identity.

Transpositive employers

A good employer would be one who has a policy, a written policy, that specifically covers transgender employees, both new and existing ones; that also has a transitioning at work policy and you’ll note from the statistics that we’ve got, only 2% have got a transitioning at work policy; that makes it completely clear that actually information in relation to transgender employees is completely confidential, because the last thing you want is one manager to go mouthing off to others and suddenly people are pointing; an official support system. So this is all second nature for us in terms of dealing with gay and lesbian employees within the workplace – I qualified 30 years ago and in those days, nobody dared to suggest that they were gay or lesbian. These days, nobody bats an eyelid, it’s just like yes, great, whatever. And so there are all sorts of official support systems put in place for people who are gay, but there isn’t really anything in respect of those who are transgender and there are going to be particular issues like the use of toilets and things like that.

Also, they need to start changing their policies so that in that nice little section that talks about bullying and harassment and zero tolerance, that it makes it entirely clear that this is not only in respect of discrimination on the grounds of sex, disability, age and all the rest of it but also in relation to gender identity. And not only do they need to have it in place, they need to be enforcing it, in the same way as it has taken some 20 or 30 years to educate employers that there’s no point having a policy if they don’t enforce it because it just makes them a laughing stock. And they need to introduce gender-neutral toilets so you’re not having that sort of, well, which one does this person go into discussion. So I think that – there was some suggestion by one of our clients that one of the reasons that there is so much animosity towards gender-neutral toilets is because a lot of business is actually done in the toilets. In discussions behind closed doors, primarily by men but obviously as a woman, I wouldn’t have any evidence of that. That was simply a suggestion.

The benefits of being trans-inclusive

I think in the same way as – so for instance, you get the Times top 100 of companies that employees want to work for; you’ve just had, which is a good move, the top companies for LGBT employees. I think that perhaps you need to think about, even down to a more refined level, those companies who have all the policies and support in place for those who are transgender. I think that recognition ought to be given to companies that do that, looking at people’s talent but supporting those who may face particular difficulties because of gender identity. So more recognition I think, because the more recognition they get, the more top talent they’re going to attract.

One of my clients has a daughter, she must be about 21, 22, and she was absolutely horrified when she’d gone for a particular interview because it was not inclusive – it was a sort of pale, stale, male, type of workplace, not inclusive, not diverse. And she said I wouldn’t go and work there in a million years. So yes, it is not just those who have the characteristics of being transgender, it is those particularly the millennials where things like that absolutely matter to them and will be the deciding factor in whether they go and work there or not.

Appetite for change

There’s certainly a change at Government level. Before the equality act came in, the regulations, the sexual orientation regulations were brought in, which were the precursor to the equality act, so now we have the protected characteristic of sexual orientation and also transgender, the person who was chairing Stonewall actually came to give a talk at the offices, which was really interesting. We’d said – it was the first piece of legislation that said not only your sexual orientation but it was if you are discriminated against on grounds of sexual orientation, so it was just much wider. It could be your brother’s sexual orientation, your best friend, or something like that. I remember asking him and saying wow, how did you get that past Government? To which his answer was well the Government just basically handed the whole thing across to Stonewall and told us to get on with it because they saw it as a real vote winner. And so we were able to craft the legislation as we had hoped.

So all I can say is let’s hope that they turn this over to Stonewall again in terms of the legislation on gender identity. But at the moment it’s not looking like they’re going to. But certainly in terms of a real appetite for change, I think certainly from a groundswell upwards, from the millennials upwards, there is this appetite for change and I think that some of the old dinosaurs living in the 1960s are going to have to change if they want to have any employees basically.

We are living in very interesting times – for all sorts of reasons. Very interesting times and one thing that the British have always been good at is embracing diversity. I guess that’s hard to put on one side of the fact that we’ve voted to exit Europe and to stop Johnny foreigner from coming to our shores, but the majority of those in the UK are open, they want to embrace diversity, they want to understand about different cultures, and they understand now that actually you can’t pigeon-hole people because they happen to have been born as a man or a woman, you can’t make them, force them, to live a lie for the rest of their lives and that actually it doesn’t matter. Gender identity really doesn’t matter as long as they are good at what they do.

What should businesses be doing about gender identity?

Everybody has to start somewhere and you might start as a small organisation but most businesses I know want to grow. And if you want to grow, you have to be sure that you’re going to be able to attract the right kind of employees with the right skills. And I think that as society grows, something can come along and change things so quickly, really, just in a matter of years. So once we put aside all preconceptions and misunderstandings about transgender issues, and just focus on people’s skills, then we are going to be attracting the right sort of people with the right skills to our business.

And actually, the changes that you need to implement as a small business are relatively small. Where you have your equal opportunities policy, just make it very clear that you are including those who are transgender. The zero tolerance on bullying and harassment, make it clear that that includes people who are transgender. And try and practice what you preach really in terms of the way in which you deal with your workforce and then people are going to want to come and work for you. That’s going to help you with your growth because the one thing that’s holding most companies back at the moment is the inability to get good staff. So I think it’s short-sighted of a small business not to do this. There are small things that you can put in place and [somebody] will have a cut and paste policy on transgender issues that you can just put into your handbook. It will take you an hour at the most.

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