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Managing the HR aspects of gender reassignment | 2015-07-17

Guidelines and policy checklist to support a smooth transition

Last month’s front cover of Vanity Fair magazine featured Caitlyn Jenner (previously Bruce of the Jenner/Kardashian dynasty) and her recent gender transition. This and the news of boxing promoter Kellie (previously Frank) Maloney’s transition last year has brought gender transition to the forefront of discussion both in and out of the workplace.

Employers managing employees who are transitioning from one sex to another should ensure they foster an open, inclusive and supportive environment, free from discrimination, and are ready to deal with any issues arising with dignity and respect for all. Having guidelines and the right policies in place will mean that such situations are approached consistently and appropriately with care, sensitivity and confidentiality. This not only provides support for all employees involved, but also ensures employers adhere to the provisions of the Equality Act 2010 which protect transitioning and transgender men and women from unfair treatment in the workplace.

Guidelines

From the outset it is important for employers to sit down with the employee concerned in order to:

  • Gain an understanding of any concerns the employee may have regarding the transition process and any perceived impact on the workplace and their colleagues
  • Discuss the anticipated timeframes involved (this has to be led by the employee)
  • Outline the support available (including any arrangements for time off for medical appointments and access to occupational health)
  • Discuss whether the employee wishes to stay in his or her current post, is looking for redeployment, or changes to their working practices, and whether this can be accommodated
  • Assure the employee on their right to privacy, or agree how the employer and/or the employee will inform their colleagues about the transition, and when this will be done.

Facilities

Once employers are aware of an employee’s intention to undergo gender reassignment, they need to agree certain issues, such as:

  • When the employee envisages changing his or her name
  • When the employee would like to be addressed as his or her new gender or feels comfortable being referred to as the opposite sex
  • When the employee would start using single sex facilities of their new sex.

The employee and employer need to bear in mind other employees when deciding on these arrangements. A permanent move to using the facilities of their new sex will usually occur when employees begin to present themselves permanently in the new sex. It is not acceptable to require a transitioned employee to use a separate toilet (a disabled toilet, for example) but this may be acceptable to both parties during the transition process.

Personnel records also need to be updated, and it is better to create new records rather than amend old ones to ensure confidentiality for the employee.

Return to work

Employers should carefully oversee the return to work of an employee who has changed gender identity. Organisations should not inform colleagues, clients, customers, suppliers or others that an employee is undergoing or has undergone gender reassignment without the employee’s express consent. Additionally, an employer should not disclose an employee’s transsexual history under any circumstances.

Policies and procedures

Having policies and procedures in place, which cover transitioning employees will help not only the employee concerned, but also those managing the process on behalf of the employer. Such policies could include:

  • Gender identity or “gender expression” being recognised as protected categories in any anti-harassment or non-discrimination policies
  • Transgender being recognised within an employer’s equal opportunities policy and any equality-awareness training
  • Grievance procedures being easily accessible to allow for any complaints to be raised on a confidential basis.

Employers need to be vigilant and ensure that all policies are adhered to, and that employees know that any inappropriate behaviour in the workplace will not be tolerated and will be dealt in accordance with disciplinary procedures accordingly.

Helen Burgess: Partner and Michael Briggs a senior associate in the employment team at Shoosmiths

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