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.
From the outset it is important for employers to sit down with the employee concerned in order to:
Once employers are aware of an employee’s intention to undergo gender reassignment, they need to agree certain issues, such as:
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:
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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