Trans campaigners are hoping for a simpler path to legal recognition of gender change following the government’s announcement that it is reviewing the process. Elsewhere, the High Court has set an important precedent on the right to respect for non-gendered identity, marking a milestone in civil rights litigation on gender identity and LGBTI+ rights.
Public awareness of gender identification has increased significantly since former Olympian and reality star Caitlyn Jenner took the issue mainstream in unveiling her transition in 2015. Recently, producers of the Supergirl TV show announced a transgender superhero would feature in the cast. For employers, there is a need to keep up to speed with this fast-changing landscape to ensure policies do not inadvertently discriminate on grounds of gender identity, whether through personnel protocols, toilet provision or dress codes.
The Equality Act 2010 protects trans people from discrimination, and guidance for employers recommends an inclusive workplace, with a supportive environment that means staff feel able to declare any change in gender identification. The Government has estimated there are between 200,000 and 500,000 trans people in the UK, but research suggests that some 2 in 3 of all trans people have been afraid to be open about their gender and last year LGBT charity Stonewall reported that 41% of trans people had experienced a hate crime because of their gender identity in the previous 12 months.
One of the first challenges for any HR team may be in understanding how to deal with a change in an individual’s self-identified gender. The answer is that employers need to handle the news carefully, find out how the individual wants to be addressed by colleagues, and when they would like to announce the transition. Then, post-transition, make sure all records relating to that employee have been updated to the new name and gender.
Sue Ball is Head of Employment Law at Verisona Law and explains: “There is no need for official paperwork to be in place before an employer recognises a gender shift. Trans people can change their name and gender for almost all services without changing their legal gender, simply by asking for the change to be made, including passports, driving licences and their employment records.
“It is only if they wish to get married or request appropriate pension provision that they must have a new birth certificate, which requires a Gender Recognition Certificate to be issued under the Gender Recognition Act 2004. It is this process that the Government is looking to reform, to make it less intrusive and bureaucratic when trans people apply for legal recognition of their acquired gender.”
Experts advise that it’s worth checking that processes don’t take a binary approach to gender, as increasing numbers are asking for a gender-neutral option in form-filling. Recently the process of applying for a passport was challenged on these grounds by long-standing campaigner Christie Elan-Cane.
Although the case was dismissed, the judgement marked a significant development in the law in this area as the Court recognised that the European Convention on Human Rights (Article 8) guarantees a right to respect for non-gendered identity. This means the Government must consider the rights of non-gendered, intersex, trans and non-binary people, who do not identify as exclusively male or female, when forming policy in future.
Sue added: “Gender neutral approaches can be useful, including for toilet provision in both the workplace and customer facilities. Single-occupancy toilets that are simply marked with a generic WC sign can be used by anyone, whether they are comfortable using a toilet in gender-specific usage or not, although no one can be forced to use a single-occupancy toilet where gender specific facilities are also available. It must be their choice, as under the Equality Act 2010 anyone who identifies themselves as a specific gender can choose to use the appropriate single-sex facilities.”
The Act allows service providers to refuse a trans person access to single-sex services if it may be detrimental to others and the review of the Gender Recognition Act will not affect women-only spaces and services such as safeguarding processes, as currently used in refuges and healthcare services. Neither will it change any protected characteristics in the Equality Act relating to gender, religion and disability.
Protected characteristics are likely to be relevant also in the context of dress codes for trans workers. Earlier this year, the Government Equalities Office (GEO) issued long awaited guidance on workplace dress codes. Despite a high-profile petition by temporary worker Nicola Thorp, who was sent home in 2016 for refusing to wear high heeled shoes, the new code stops short of harsh punishments, saying: “dress policies for men and women do not have to be identical. However, the standards imposed should be equivalent. This means there must be similar or equivalent rules laid down for both male and female employees”. The guidelines also say that “it is best to avoid gender-specific requirements”, going on to remind employers that “transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity”.
Here are the types of cases we handle:
- Contracts of Employment
- Employer Staff Handbooks
- Redundancy Process
- Breach of Contract
- Breach of Restrictive Covenants
- Tribunal Claims
- Settlement Agreements
- Consultancy Agreements
Sports and Football Law
- Contracts of Employment
- Service Agreements
- Contractual Issues
- Executive Departures
"Over the years, I have developed a great trust in my working relationship with Mike Dyer, Head of Commercial Law at Verisona. One of the things I value most is that he is always at the end of a phone. On the rare occasions he is unavailable, his secretary is always well informed and very helpful. Through Mike, I have met many other members of Verisona and, just like in the recruitment industry, they understand the importance of being treated like an individual. They make me feel valued and important to both them and their business. At Verisona, you always deal with real people who you know and are in a position to help. Most importantly, Verisona delivers. We recently had an urgent situation regarding the restrictive covenants of new members of staff. Employment specialist Susan Ball came in on a day off to listen to us, dissect and analyse the situation, and translate what we wanted to achieve into the best possible legal language and solution. This is just one example of the calm, efficient professionalism I have come to value from Verisona over the years. Verisona has a refreshing approach to the law. They are there when we need them, always easy to talk to, go out of their way to make sure that we understand what they are doing for us and why, and always get the best results".
Legally enforcing the tribunal award
To enforce the Tribunal award we applied to the Defendant’s local County Court for it to be registered and for permission to enforce the award.
The Court granted the application and on the Register of Judgments, Orders and Fines. As a result the Tribunal award would appear as a County Court Judgment which would likely affect the Defendant’s credit rating.
Time limits for enforcing Tribunal awards
It is worth noting that there is no time restriction for registering or enforcing a Tribunal award. You can enforce one even if it is several years old. In addition, it is usually possible to claim interest on the amount until you receive payment.
A commercial business
"Thanks for all your help on this - you've been so helpful to me in guiding and explaining everything, so just to say thank you for obviously helping represent my case but also allowing me to understand the process and giving me greater awareness of what I need to be mindful of when signing future contracts".
Former employee of professional football club
Sue was easy to deal with and offered all options available. Jane was in contact beforehand to tell me what information was needed and Sue was prepared for our meeting. I cannot praise Sue and Jane enough and would have absolutely no hesitation in reommending Sue and her team.