Bi, trans and non-binary intersectionality: a…
To mark Trans Day of Visibility 2021, the Law Society, Global Butterflies and the London Bisexual Network hosted a panel on the intersectionality between being trans, non-binary and bisexual.
Our transition and change to gender expression template is intended for use by law firms and organisations.
It gives an overview of the key areas for employers to consider when a staff member wishes to transition or change their gender expression at work.
The template is not intended to be prescriptive, nor provide an exhaustive list of the areas to consider.
Action points should always be agreed with the staff member concerned. The steps may need to be adjusted to recognise the size of the firm or different ways of working.
The Equality Act 2010 and the Gender Recognition Act 2004 set out minimum requirements in relation to protection and recognition for trans people.
Firms must meet their duties under the Equality Act to avoid discrimination in employment and service provision.
We encourage firms to exceed the minimum threshold of legal protections that trans and non-binary people are guaranteed by this legislation, in order to attract, retain and progress diverse talent in the profession.
Firms must also comply with SRA Principle 6 and paragraph 1.1 of the SRA Code of Conduct for Firms, which require law firms to act in a way that encourages equality, diversity and inclusion (EDI), and the expected outcomes set out in its guidance on its approach to EDI.
The SRA’s guidance for law firms on creating a trans inclusive workplace also sets out good practice and provides information about ways in which firms can comply with Principle 6 and paragraph 1.1 in relation to trans equality.
The template guide and plan have been drafted by members of the Law Society’s LGBT+ committee.
Using this template is optional. It will not cover all scenarios and each firm should consider its own unique circumstances.
The template reflects Advisory, Conciliation and Arbitration Service (ACAS) and Equality and Human Rights Commission (EHRC) guidance – for more information, see below.
We hope these materials will help firms comply with the legal requirements and help them embed EDI principles into their organisational practices and culture.
There are two key pieces of legislation concerning the rights of trans and non-binary people in the UK:
The Equality Act 2010 provides protection from discrimination and harassment in employment and service provision because of:
These are classified as protected characteristics under the Act.
In the Act, a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
The EHRC’s Code of Practice for Employment (EHRC Code), which provides statutory guidance on interpreting the Act, says the process referred to in this definition is a personal process rather than a medical process.
An Employment Tribunal decision in 2020 (Ms R Taylor v Jaguar Land Rover Ltd: 1304471/2018) found that gender fluid and non-binary identities are also included within the definition of gender reassignment under the Act and are therefore protected from discrimination.
The EHRC Code says that if a worker is undergoing gender reassignment, it’s good practice for the employer to consult with them sensitively about:
It recommends that the employer should arrange to discuss sympathetically with the worker which toilet facilities they should use, their uniform, and communications with other members of staff.
We’ve adopted this recommendation in our transition and change to gender identity template.
ACAS guidance says that an employer should assume the employee knows how to choose the facilities that match their gender identity and that they should make clear to all staff that it agrees that an employee, once living and working in their gender identity, can use the facilities they feel best match their identity.
The guidance recognises that some organisations may have some gender-neutral facilities, and a trans employee may feel more comfortable using these but generally should not be told they have to do so.
The Gender Recognition Act 2004 enables a trans adult (over 18) to apply for legal recognition in their “acquired gender” if they have a medical diagnosis of gender dysphoria, have lived in their acquired gender for two years or more, and intend to do so for the rest of their life.
Under section 22, it’s an offence for an employer or prospective employer or an employee to disclose to any other person “protected information” if they have applied for or obtained a Gender Recognition Certificate, apart from for a very narrow range of purposes.