Gender reassignment is protected under European Antidiscrimination Law. Gender reassignment is where someone is proposing to undergo, is undergoing, or has undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex – and the result is a transsexual person.

Previously there was a requirement for the person to be under medical supervision to be protected. This means that gender reassignment is now considered to be the personal process of moving away from an individual’s birth gender to their preferred gender, rather than a medical process.

Protection is provided from the moment someone proposes to move along the pathway away from their birth gender. However, it does not require them to have reached a permanent decision to reassign their gender. This means they would be protected if they make their intention known to someone, start to dress or behave like someone who is changing their gender or living in the identity of the opposite sex or if they start attending counselling sessions relating to the start of a gender reassignment process.

Where someone starts the process of gender reassignment and has withdrawn before the process is completed, they will still have the protected characteristic as they have undergone part of the process.

It is not necessary for the transsexual person to obtain legal recognition of their acquired gender to be protected but having done so they are able to.

• Acquire a substitute birth certificate with the acquired gender
• Marry in the new gender or form a civil partnership with someone of the same gender
• Retire and receive a State Pension at the age appropriate to the acquired gender.

Managing people

You could be vulnerable to claims if you discriminate against transexual employees in any area of employment including training, progression, or promotion at any point in an individual’s career.

Ensure gender reassignment is included in your equal opportunity statement or policies, particularly if you list the protected characteristics. Failure to do so could be interpreted as a lack of concern on gender reassignment issues.

As you consider the practical implications of equality in the day-to-day management of your workers, aim for ‘zero tolerance’ of discrimination, including harassment, and make sure you communicate this repeatedly.

Try to develop approaches to deal with discrimination and general education of your workforce, that provide support to employees, rather than simply providing a list of things that they should not do. Sometimes we are not even aware of our own prejudices and need help to understand them. We have all been exposed to situations in our lives, which have formed unconscious bias that affects the way we see the world and react to different situations without knowing it.

Once a policy has been agreed, it is important to train workers on your expectations and procedures. A key element of this training should be to explore the day-to-day prejudices and assumptions about diverse groups i.e., challenging myths and stereotypes.

In large organizations, it may take some time for all managers to be fully trained and made aware of their new responsibilities, as well as the risks from mistakes. Communication is the key to effective culture change. You should as a matter of course roll out a ‘zero tolerance’ program on discrimination and discriminatory banter.

Employees should also be made aware of the steps they can take if they feel they have been discriminated against, harassed, or victimized. They should feel confident that their complaint would be treated seriously, that managers will deal with the cause of the problem and that the process will be undertaken in confidence.

Sexual matters are private and confidential for everyone, and staff may find it hard discussing their personal life or their concerns/complaints with a manager. As a result, they may not make a complaint until a situation becomes unbearable. Employers should ensure that confidentiality is considered in every part of the complaints process, including access to electronic records and reassure employees that policies are in place to protect confidentiality.

Communication

It is important that communication, including the language used with transgender people does not cause any offence or exclude transsexual people. It is particularly important to consider how you will refer to a transsexual employee, both in terms of their name and the pronouns used to describe them. There is not a ‘one size fits all’ approach to this and the only acceptable way to manage the situation is to agree it with the individual concerned.

Names

Some transsexual people will be known by a different name to the name they were given at birth. They may also have different names at work and at home, reflecting how comfortable they feel around different people. At times, the name they use may appear to conflict with their appearance e.g., if they have started a process of transition to an acquired gender but have not yet changed their name on any documentation. In some situations, a transsexual person may also try a few different names before deciding on one. If this is the case, you should be as flexible as possible to accommodate the changes. However, you should always call a transsexual person by their preferred name.

Although you may be curious, you should not ask questions about the employee’s birth name or about any details of their life before the transition to their new gender or name.

Employers also have a duty to make sure that colleagues, contractors, and customers use people’s chosen names and pronouns.

Example

John comes into the office on his first day at work dressed in a skirt and asks to be called Jane. He has only just started to work for the company and his personnel file and security checks are documented under the name John.

Comment Jane may have only just started the process of transition and as a result went through recruitment as a man. However, she has trusted you enough to tell you about an important change she is going through, and you should now refer to her as Jane. If you continue using the name John, which she does not identify herself with now, it would be dislocating and hurtful and could be seen as harassment. Many people experience rejection through other people’s refusal to acknowledge them in anything other than their birth name or gender.

Pronouns

Pronouns are words that describe someone’s gender in the third person e.g., he or she, his or her. Some transsexual people will be happy to be referred to as he or she, but others may feel uncomfortable about this and prefer gender-neutral pronouns e.g., they.

Misuse of pronouns is a common form of verbal harassment that many transsexual people face, as it suggests that they are not the people they know themselves to be. It is important to get a person’s pronouns right so that you can treat them with respect.

Sometimes, a person’s gender identity can differ from their appearance or the pitch of their voice. Only use gendered pronouns such as ‘he’ or ‘she’ if you are certain that a person identifies themselves in that way. If you are not sure which pronoun to use, it is better to ask than make assumptions, but only do this if they have told you that they are transsexual.

There are some situations where you cannot ask people in advance how they would like to be referred to e.g., a large training event or conference. In this situation, use gender-neutral descriptions e.g., the person in the white shirt in the back row.

When an employee decides to start the transition process whilst at work, their colleagues and customers will usually be informed. However, this should not be done without the transsexual employee’s consent.

It is good practice for employers to take responsibility for informing whoever needs to know, unless the individual going through the process would prefer to do this. If the employee wishes to do this personally, the employer will still need to know what they will say and when, so they can offer support to the transsexual employee throughout the process.

In no circumstance should the employer inform colleagues or customers that an employee is intending to undergo, or is undergoing, gender reassignment, without the individual’s explicit consent.

It is never appropriate to inform colleagues, clients and the public that an employee has undergone gender reassignment in the past.

For discussion with colleagues during Sexual reassignment

Colleagues who are embarking on Sexual reassignment will need some support and flexibility at this time. You should meet with them to agree how their reassignment will take place. Some of the issues you may need to discuss are:

• The timescale for any medical or cosmetic treatment.
• When and how to inform colleagues and clients.
• When they may wish to change their name, personal details, and social identity.
• The need for flexibility in the dress code, where applicable.
• Amending personnel records.
• Using single-sex facilities.
• Ensuring hostile or negative reactions among the workforce are addressed effectively.
• Whether they wish to stay in their current post or request redeployment

For further information on sexuality and transgender issues see the European Union Agency for Fundamental Rights website. It includes guidance on all aspects of rights and support for sexual orientation and transgender/gender reassignment.

We also have information on illegal discrimination and protected groups from the European Commission – this includes discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.