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Working with transgender employees

20 November 2015
This practice note is designed to help everyone in your firm to work respectfully with transgender people. It is unlikely that you will need to change any of your usual day-to-day activities or behaviour, but if you are working with transgender people, the information you read here may improve your interaction with them.

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken so ensure they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society's Practice Advice Service.

Professional conduct

There are 10 mandatory principles which apply to all those the Solicitors Regulation Authority (SRA) regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practicing from an office within the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

You should always bear in mind what the 10 principles are and use them as your starting point when implementing the outcomes. The guidance in this practice note will help you to meet the requirements of principle 9, which is specifically focused on equality and diversity:

Principle 9 - you must run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance). These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
SRA - Solicitors Regulation Authority
IB - indicative behaviour
 

The Law Society also provides a full glossary of other terms used throughout this practice note

 

1 Introduction

1.1 Who should read this practice note?

This practice note will be helpful to all solicitors, their employees and consultants.

1.2 What is the issue?

Gender reassignment is a protected characteristic under the Equality Act 2010.

Solicitors need to show a positive approach to transgender employees to ensure that they are able to attract, promote and retain the best talent to work in their practice.

2 Definitions

Trans/TransgenderTranssexual
Trans or transgender are inclusive terms for people whose identity differs from what is typically associated with the sex they were assigned at birth.Transsexual is a term used in the Equality Act 2010 to define those who fall within the protected characteristic of gender reassignment. A transsexual person is someone who has proposed to undergo, is undergoing or has undergone gender reassignment.

This practice note uses the terms as defined above. Where the practice note refers specifically to the legally protected characteristic under the Equality Act 2010, the term transsexual is used; as many trans people do not identify as transsexual and prefer the words trans or transgender, these words are used elsewhere in this practice note.

This practice note is primarily written in relation to those effecting or having completed a permanent change of gender, however all transgender people are entitled to the same dignity and respect afforded to others in the workplace.

It should be noted that for the purpose of this practice note, the term 'employee' also makes reference to owners and partners of law practices.

3 What is gender reassignment?

Gender reassignment is the process of transitioning from one gender to another. This is a personal process, not a medical process. This means that someone does not need to have undergone surgery or be under any kind of medical supervision to be classed and protected as transgender. When an individual decides to live openly in their acquired gender they have made a social transition.

4 Statistics

There is no robust data on how many people in the UK identify as transgender, or use any other gender-identity descriptor, and estimates vary considerably.

When the government announced its Transgender Action Plan, it stated that 88 per cent of transgender employees experience discrimination or harassment in their workplace.

5 What is the legislation relating to gender reassignment?

Transgender and transsexual people are protected by two key pieces of legislation:

  • The Equality Act 2010 (as amended) outlaws discrimination in employment on the grounds of gender reassignment, and
  • The Gender Recognition Act 2004 allows transsexuals to obtain a Gender Recognition Certificate to legally change their gender.

These two acts are summarised below. However, the principles of both the Human Rights Act 1998 and the Data Protection Act 1998 are also relevant to transgender people.

5.1 The Equality Act 2010

The Equality Act 2010 outlaws discrimination in employment and vocational training on the grounds of gender reassignment. Gender reassignment is one of the nine protected characteristics protected by the act.

People have the protected characteristic if they are proposing to undergo, or are undergoing, or have undergone a process or part of a process to reassign their sex by changing their physiological or other attributes of sex.

This definition differs from that previously contained in the now repealed Sex Discrimination Act, as it has removed the 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.

The legislation protects:

  • actual and prospective employees
  • ex-employees
  • apprentices
  • some self-employed workers
  • contract workers
  • actual and prospective partners in a partnership or limited liability partnership
  • people seeking or undertaking vocational training

There is no requirement for a transgender and transsexual person to tell their employer about their gender reassignment status and questions about a possible transgender status should not be asked unless one of the exceptions (see below) applies. However, it would be unusual for someone to reach the point of a social transition while in employment without advising their employer.

It is unlawful to refuse to work with someone with the protected characteristic of gender reassignment, even if the refusal is on the grounds of religious belief.

These are the types of unlawful discrimination:

  • Direct - unnecessarily requiring someone not to be transsexual.
  • Indirect - where transsexual people are particularly disadvantaged by a provision or some criteria which applies to everyone.
  • By perception - where you think someone is transsexual, and you discriminate against them because of it, but they are not transsexual.
  • By association - if you discriminate because of someone mixing with, or has an association with, transsexual people.
  • Harassment - where you act in a way that violates the dignity of another person or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person because they are transsexual. There is protection from less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment.
  • Victimisation - it is unlawful to discriminate against someone because they have used the provisions of the legislation or have helped someone else to do so.

The Equality Act 2010 makes exceptions for certain actions, which would otherwise be discrimination on the grounds of gender reassignment - here are some examples but this is not a comprehensive list:

  • The job really requires someone not to be transsexual - an occupational requirement.
  • When positive action is taken to help the employment of a transsexual person to achieve a more diverse workforce.
  • An organisation may indirectly discriminate if the discrimination is a proportionate means of achieving a legitimate aim (objectively justified).

5.2 The Gender Recognition Act 2004

The act allows transsexual people to obtain a gender recognition certificate to change their gender legally.

It is not necessary for the transsexual person to obtain legal recognition of their expressed gender to be protected by The Equality Act 2010, but the Gender Recognition Act 2004 allows transsexual people to gain legal recognition of their acquired gender by registering for a gender recognition certificate. Once a gender recognition certificate has been issued, a transsexual person is considered legally to be his or her acquired gender. As a result, they may be 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 under the Civil Partnership Act 200, and/or
  • retire and receive a state pension at the age appropriate to the acquired gender

You should only identify a person's transsexual status if you have permission to do so. 'Outing' a person as transsexual is classed as direct discrimination under the Equality Act 2010 and could result in criminal charges under the Gender Recognition Act 2004.

Disclosure of the fact that an employee has obtained a gender recognition certificate is a criminal act subject to a fine.

6 How does gender reassignment happen?

6.1 Transition

A person's gender is usually assigned at birth based on the sex of the individual. However, a person may feel conflict between the gender they have been assigned and how they feel. As a result, a person may takes steps to live as the gender which they identify with. This can happen at any point in their lives.

Transition is the process of moving from one gender to another, and involves social, psychological, and emotional changes. The time this takes is different for every individual. It can involve:

  • changing name and pronouns socially
  • changing gender legally and changing details on official documents, eg driving license, ID, birth certificate
  • changing the way a person dresses
  • adopting mannerisms consistent with expressed gender
  • hormone treatment
  • attendance at a gender identity clinic
  • voice therapy
  • hair removal
  • counselling
  • surgery, including plastic surgery
  • coming out with family and friends
  • coming out at work

6.2 Gender recognition certificate

If a person has a gender recognition certificate they can obtain a new birth certificate showing their acquired gender. An employer should be able to use the birth certificate for most administrative requirements relating to employment, in the same way that they would for other employees. It is unlawful to request the gender recognition certificate. Indeed, if someone has reassigned their gender before joining you, you will have no need to know that they have a gender recognition certificate and have changed their gender.

People with gender recognition certificates may marry or have civil partnerships in their acquired gender, and may have a state pension appropriate to their gender identity.

6.3 Changing name

Many transgender people will not obtain a gender recognition certificate to permanently change their gender but will want to live with a different name to the one they were given at birth. A name can be changed using a statutory declaration or deed poll.

7 Solicitor's registration

Solicitors who change their name will need to update their registration with the SRA. They should send a copy of their gender recognition certificate if they have one, new birth certificate, deed poll or statutory declaration to support their name change.

8 Confidentiality and data protection

A person's gender status and transition history is confidential and must not be disclosed without the person's permission, which should preferably be obtained in writing.

When someone obtains a gender recognition certificate, their employment records must be changed to reflect their expressed gender unless they relate to pension and insurance, and old details need to be stored confidentially.

When employment records are updated with the person's new details, it will normally follow that changes are made to details, such as name badges, signs and email addresses. Proper standards of confidentiality should be maintained as with all HR documents.

9 Working with transgender employees

9.1 Awareness

Your organisation can show a positive approach to transgender employees by making sure that everyone is respectful and inclusive. Transgender employees need to know that they will be treated with respect. You should refer to gender reassignment in equality and diversity policies.

9.2 Memorandum of understanding

In some instances a confidential memorandum of understanding may be sought. This is an agreement between the employer and an employee, which summarises discussions about how communications on the change will take place, who will take action and when it will take place, and other matters, such as:

  • time off from work (where appropriate)
  • communication - where appropriate by stakeholder group, including peers, team, department, organisation, customers, etc
  • equipment, eg door signs, name badges, email addresses, other forms of ID, electronic profiles, photographs
  • personal changes - eg name change, dress change
  • use of facilities

The memorandum can cover any agreed issues and documents related to the specific circumstances of the individual. The memorandum can be signed and may need to be updated.

9.4 Harassment

Harassment in any form whether it is by colleagues or third parties is unacceptable.

9.4 Social events

Consider the needs of all participants when you are arranging social occasions.

10 Employing transgender people

When an employee wishes to transition, there are some considerations for the business. The process can be very individual and this chart is not intended to be prescriptive.

The main steps are :

1. Employee advises manager that they wish to transition

2. Employee and manager agree communications, possibly with a memorandum of understanding

3. Manage any absence

4. Decide when the employee will transition at work and how, for example, starting to wear clothes of their expressed gender or changing their name.

5. Ensure that everything is in place for the transition day - eg email address and agreed communications so that colleagues are aware. Update personnel records.

6. If the employee leaves, make sure that the reference complies with legislation.

10.1. Changing jobs

Some transgender employees in public-facing roles may want to change jobs, permanently or temporarily while they are in the process of reassigning their gender. Where an employee proposes a change to their role, managers should be as helpful as possible in facilitating this.

10.2 Absence from work

Employees who are undergoing gender reassignment are protected from less favourable treatment in relation to absence from work for this reason. Treatment of the person's absence may not be less favourable than that they would receive for an absence due to illness or injury. This legislation does not specify a minimum or maximum amount of time for this absence.

Good practice would be to ensure that any employee who has sickness absence is able to discuss any requirements or adjustments they may need, and this is no different for employees taking sickness absence for gender-reassignment purposes.

10.3 Disability

If an employee identifies that they have gender dysphoria and the condition has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities, they may be protected under the provisions in the Equality Act 2010, relating to the protected characteristic of disability.

10.4 Selection

It is unlawful for you to instruct someone to discriminate against transsexual people on your behalf, for example, asking an employment agency to reject a transsexual person.

10.5 Dress codes

Ensure that transgender staff are able to wear clothes appropriate to their expressed gender identity when they are ready to do so. The employee may have a definite view on when and how they want to transition into new clothing and managers should accommodate this wherever possible.

10.6 Toilets and changing rooms

Managers must ensure that the employee can use facilities appropriate to their expressed gender identity. It may be appropriate to set a date when this will happen - the social transition date - and ensure that it is communicated so that relevant colleagues are not surprised.

A transgender employee must be able to use the toilet or changing room of their expressed gender identity without fear of harassment. People should not be made to use unisex disabled toilets, unless they choose to do so, particularly as a temporary measure during the transition period.

10.7. Measuring and monitoring

Transgender people generally prefer to identify as male or female rather than transgender. When monitoring, it is important not to ask questions that categorise gender identity as type of sexual orientation or gender.

11. Further Information

Equality and Human Rights Commission

Gender Identity Research and Education Society (GIRES)

Gendered Intelligence

The Gender Trust

Government Equalities Office

Stonewall

12 Appendix A: model policy

Download a model transgender policy (PDF 282kb)

13 Appendix B: glossary

Gender identity:
A person has an internal, deeply held sense of their own gender. For transgender people, their own sense of who they are does not match the sex that society assigns to them when they are born.

Gender expression:
This refers to the ways in which people manifest their gender, for example, through what they wear, how they speak and how they act.

Acquired gender:
Refers to the gender in which a person lives and presents to the world. This is not the gender that they were registered with at birth, but it is the gender in which they should be treated.

Trans:
An umbrella term for people whose identity differs from what is typically associated with the sex they were assigned at birth. People under the trans umbrella may describe themselves using one or more of a wide variety of terms, including transgender. Some of those terms are defined here.

Transgender male:
People who were assigned female at birth but identify and live as a man may use this term to describe themselves. They may shorten it to trans man. Some may also use FTM, an abbreviation for female-to-male. Some may prefer to simply be called men, without any modifier. It is best to ask which term an individual prefers.

Transgender female:
People who were assigned male at birth but identify and live as a woman may use this term to describe themselves. They may shorten to trans woman. Some may also use MTF, an abbreviation for male-to-female. Some may prefer to simply be called women, without any modifier. It is best to ask which term an individual prefers.

Transsexual:
Used in the Equality Act 2010 to define those who fall within the definition of people with the protected characteristic of gender reassignment, transsexual is an older term still preferred by some people who have transitioned to live as a different gender than the one society assigns them at birth. Many trans people do not identify as transsexual and prefer the word transgender. It is best to ask which term an individual prefers. If preferred, use as an adjective: transsexual woman or transsexual man.

Gender dysphoria:
Gender dysphoria is where a person experiences discomfort or distress because there is a mismatch between their biological sex and their gender identity. For example, some people may have the anatomy associated with men, but identify themselves as a woman, while others may not feel they are definitively either male or female. This mismatch between sex and gender identity can lead to distressing and uncomfortable feelings that are called gender dysphoria.

Transition:
Where someone takes steps to live as the gender which they identify as. What this involves varies from person to person. For some people this might involve medical surgeries. Not everybody wants to have these procedures or is able to have them. A transition also might involve things like telling friends and family, dressing differently and changing official documents.

Gender recognition certificate:
In the UK people can obtain a gender recognition certificate (GRC), which enables them to get a new accurate birth certificate. The process for applying for a GRC can be quite burdensome and not every transgender person will choose to do so. People do not need a GRC to transition at work or for most official purposes. In order to receive a GRC you must:

  • be 18 or over
  • be diagnosed with gender dysphoria (unhappiness with your birth gender)
  • have lived as your acquired gender for at least two years
  • intend to live in your acquired gender for the rest of your life
  • apply to the Gender Recognition Panel.
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