Employers ‘Less Likely’ to Hire Trans Workers, Report Reveals

A new report indicates that 77% of employers are uncertain of the laws protecting the rights of trans people in the workplace.

In a survey of 1,000 employers, a third said they would be less likely to hire a transgender applicant, while 47% said they would be unsure about hiring a trans employee. 1 in 3 of those questioned believed that all trans people are legally protected against discrimination, with only 9% backing legal reform to extend trans workers’ protections.

As the law currently stands however, only trans workers who intend to “undergo, are undergoing, or have undergone gender reassignment” are explicitly covered by anti-discrimination protections.

This does not include those who are non-binary or do not intend to medically alter their bodies.

The survey’s authors said that the findings “reinforce what bodies such as Acas and the Women and Equalities Select Committee have been highlighting to the Government for years; trans-identity is more complex than the law currently recognises.”

Currently, legislation including the Equality Act 2010 protects the rights of some of the 290,000 trans people working in the UK, rendering employers legally responsible for discriminatory practices in both the recruitment process and working environment.

Duties towards trans employees outlined in legislation

Employers are legally obliged to prevent any workplace discrimination against trans workers and service users, holding responsibility not only for managerial decisions, but also for the actions of their employees.

Companies can be found liable for the discriminatory behaviour of individual workers regardless of whether they are aware of the offending conduct.

However, this can be avoided if an employer can show that they took all reasonable steps to prevent such discrimination – for example, by providing trans equality awareness training for employees.

Discrimination in the context of gender identity is complex and can take many forms, from denying adequate medical leave to enforcing a gendered dress code that does not fit the workers’ identity.

In the case of gendered bathrooms, trans workers must not be forced to use separate, unisex or disabled bathrooms at work, as case law shows that this could amount to discrimination.

Employers must adopt a zero-tolerance policy towards the illegal harassment of trans employees or service users – for example by including gender identity in their official anti-harassment policy.

In terms of recruitment, the Equality Act allows for employers to insist on recruiting candidates from a particular gender, provided this can be justified as an “occupational requirement” – for example, in a women’s shelter or in a role where private body searches are done.

However, this requirement must be thoroughly justified, and the claim of unsuited gender identity does not apply to a trans person who has gained legal recognition of their gender with a gender recognition certificate.

During recruitment, employers are under a strict obligation not to force a candidate to reveal their gender identity through questioning. Should an applicant openly discuss their gender, it is illegal to base a hiring decision on gender in most cases, and similarly unlawful to dismiss an employee upon learning of their gender.

In addition, the Gender Recognition Act 2004 extends special privacy rights to trans people, making it a criminal offence to pass on information about anyone’s trans status without their permission.

As such, employers must ensure they have the full consent of their employee before initiating any discussions of their gender with others.

Who does the law apply to?

Whilst employers therefore hold fairly far-reaching anti-discrimination responsibilities towards their trans workers under the Equalities Act, some highlight that these legal rights may only apply to a specific section of trans people.

By only covering those who are “intending to undergo, are undergoing, or have undergone gender reassignment”, campaigners say the legislation leaves “non-binary workers or trans people who don’t intend to have a medical transformation” unprotected.

Trade union UNITE however points to the Employment Statutory Code of Practice guide attached to the Act, which defines gender reassignment not as a medical process, but a “personal process” of “moving away from one’s birth sex to the preferred gender.”

This definition, the union argues, means the law “does not require someone to undergo medical treatment in order to be protected.”

Ultimately, workplace discrimination against a trans employee or service user regardless of their reassignment status is unlikely to be supported by the courts, and experts advise that employers take as broad an approach as possible to implementing anti-discrimination measures.

Contact our sex discrimination solicitors today

If you feel that you may be a victim of sex or gender discrimination or harassment including unfair treatment, equal pay claims, harassment or victimisation, you could be entitled to compensation. Contact IBB’s employment solicitors today for expert advice. Call us today on 03456 381381 or email employment@ibblaw.co.uk.