In 2020, NHS England and NHS Improvement commissioned an independent review of gender identity services for children and young people. Last week, retired consultant paediatrician, Dr Hilary Cass, submitted her final report and recommendations to the NHS in her role as Chair of the Independent Review.
Whilst The Cass Report focused on support sought by young people, the report has served to raise further awareness of gender identity in general which has perhaps contributed to the increased number of queries we have received regarding an employer’s approach to gender identity in the workplace.
Protections in place
The Equality Act 2010 prohibits gender reassignment discrimination, harassment and victimisation in all stages of the employment relationship including recruitment, training, promotions and dismissals.
A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex, even if they start the process and then stop.
The Case: Taylor v Jaguar Land Rover Ltd
The 2020 case of Taylor v Jaguar Land Rover Ltd considered gender reassignment to be ‘a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A but not necessarily ending at point Z, where A and Z are biological sex.’
Although this point remains relatively untested in law, it shows that focusing on discrimination based on a person’s gender identity rather than gender reassignment may be important.
Employers should also be aware that:
- they may need to review their existing policies dealing with absences for gender reassignment and any triggers that may exist for absence management procedures, redundancy selection etc.
- related conditions such as gender dysphoria (a sense of unease felt due to a mismatch between a person’s biological sex and their gender identity), may also be protected under the disability discrimination provisions.
- the Gender Recognition Act 2004 allows a person who meets certain criteria to apply for a gender recognition certificate and be legally recognised in their affirmed gender.
- any information relating to a person’s gender history constitutes ‘special category data’ under the Data Protection Act 2018 and the retained UK GDPR meaning you must also identify a special category ground for processing such information; and
- details about a person’s gender identity is caught by the right to privacy under the European Convention on Human Rights.
What employers can do
Many organisations find that they are addressing matters and developing policies in reaction to a workplace issue that has arisen rather than considering the topic pro-actively allowing it time to improve knowledge and understanding where necessary to make informed decisions about how they intend to address this matter in its workplace.
Having a gender identity policy in place alongside other complimentary policies such as a diversity, equity and inclusion policy and an anti-harassment and bulling policy can promote awareness and inclusion.
Policies, and/or separate guidance for line managers and HR, can address sensitive matters such as use of facilities, uniform or dress code, terminology and how to support a staff member who is transitioning whilst at work.
When enforced consistently and effectively alongside training, it can lead to a more inclusive and comfortable environment and facilitate open discussions around the topic, improve knowledge and awareness by all staff and hopefully avoid issues arising that the employers contacting us are finding themselves having to address reactively.
If you have any questions or would like further information on the content of this article, please do not hesitate to contact our Employment team, by email [email protected] or by calling 01737 854500.