This factsheet gives information about the rights of transgender people at work and suggests good practice for employers and UNISON branches.  It includes information on the law, support for members undergoing gender reassignment and checklists for negotiating and for branches.  In UNISON, transgender members organise together with lesbian, gay and bisexual members.  There are many areas of common concern, but important areas of difference.  There is a separate fact sheet on Bargaining for lesbian, gay and bisexual workers rights.

INTRODUCTION

A transgender person is someone who has a deep conviction that their gender - whether they are a man or a women - does not conform to the sex they were assigned at birth.  Many transgender people wish to change their name and personal details and live as a member of the gender with which they identify.  This may involve hormone therapy and surgery.  The process is referred to as ‘gender reassignment’ or ‘transitioning’.

Since April 2005, people have been able to apply for legal recognition for their acquired gender.  The Gender Recognition Act also includes important measures to protect people’s privacy (see section below on Records and Confidentiality).  However, not all transgender people wish to or can go through this legal process.

Before 2005, all people remained legally the sex recorded at birth, despite living in the opposite gender, and were unable to get their birth certificate corrected.  Although it was possible to have some official documents changed, including passport and driving license, the lack of legal recognition meant people had to disclose their gender history when applying for certain jobs or seeking insurance or pensions.

Many transgender workers face discrimination during and after the process of gender reassignment.  Over half those responding to a survey by Press for Change, the trans lobby group, had changed employers, either because they were forced to by their employer or because they felt compelled to by intolerable working conditions.  Many reported they were now doing lower paid work.  38% had experienced harassment at the time of transition and 25% for a period after transition.  Nearly a quarter reported verbal abuse and 6% reported physical abuse.   49% felt frequently discriminated against in recruitment.  (Employment Discrimination and Transsexual People, Whittle, 2000). 

This is despite the fact that it is unlawful for any employer to discriminate on grounds of gender reassignment.  The Gender Duty, which came into force in April 2007, places a new duty on public employers to take positive steps to combat unlawful discrimination and harassment of transsexual workers or potential workers.  Current legal protection is limited to discrimination on grounds of intending to undergo, undergoing or having undergone gender reassignment.  While welcoming this protection, UNISON calls for wider protection against discrimination on grounds of gender identity or gender expression.

UNISON believes that transgender people have the right to equal treatment, protection from discrimination and the full support of the union.  UNISON believes all transgender people should be treated as of the gender in which they live permanently, whether or not they have gained legal recognition for that gender.

Transgender members have the right not to be discriminated against by UNISON policies, practices, members or officers.  Allegations of discrimination will be taken very seriously.  One of UNISON’s Rulebook aims is “to seek to ensure equality of treatment and fair representation for all members and to work for the elimination of discrimination on grounds of race, gender, sexuality, gender identity, disability, age or creed” (Rule B1.2).  UNISON is developing an inclusive Equalities Scheme to promotes equality across all grounds in everything we do.

Many UNISON representatives will not have previous experience of advising transgender members or bargaining for equality for transgender members.  It is important that branches are aware of issues and have negotiated policies before a member or potential member of the branch experiences any difficulties.

UNISON is affiliated to Press for Change - the political lobbying and educational organisation campaigning for civil rights and liberties for all trans people (see last page for contact details).

Transgender person: a person whose own gender identity does not conform to the sex they were assigned at birth.

Transsexual person: legal/medical term for someone who lives (or wishes to live) permanently in their ‘new’ gender.

Trans: inclusive term, including people who identify as transsexual, transgender, transvestite or simply trans

Gender identity: the gender a person identifies with.  This is not necessarily the same as the sex they were assigned at birth.

Gender dysphoria: medical diagnosis of a consistent and overwhelming desire to live in the opposite gender to that assigned at birth.

Gender reassignment:  the process of transitioning from the gender assigned at birth to the gender the person identifies with.  This may involve medical and surgical procedures.

Legal sex:  In the past in the UK, the legal sex of someone was defined by their birth certificate and could not be changed.  The Gender Recognition Act 2004 means people can now apply to gain recognition of their change of gender for all legal purposes. 

Gender Recognition Certificate:  issued by the Gender Recognition Panel – signifies full legal rights in acquired gender and allows the issuing of a replacement birth certificate.

Gender Recognition Act 2004

The Gender Recognition Act enables people aged over eighteen to gain full legal recognition for the gender in which they live.  Applications are considered by the Gender Recognition Panel.  Once a person receives a Gender Recognition Certificate, they are legally of that gender for every purpose and have all the rights and responsibilities associated with that gender.

Information about legal gender recognition, including a step by step guide to the process and application packs, can be found at http://www.grp.gov.uk.  To make an application, a person needs to show they have been living in that gender for at least two years.

Sex Discrimination Act 1975, as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999

The Sex Discrimination (Gender Reassignment) Regulations 1999 amend the Sex Discrimination Act 1975 to make it unlawful to discriminate on grounds of gender reassignment in employment and vocational training.  Any claim is brought under the Sex Discrimination Act.  

There is a government guide to the Regulations for employers, which includes a section on workplace good practice. The guide has no legal status but it can be referred to in employment tribunals when taking a case.

Regulations Summary:

It is unlawful to discriminate against a person for the purpose of employment (recruitment, promotion, access to benefits, selection for redundancy, vocational training etc) on the ground that the person intends to undergo gender reassignment, is undergoing gender reassignment or has undergone gender reassignment.

The employer is automatically liable for discriminatory actions by anyone acting on their behalf, whether or not it was done with their knowledge, unless the employer can show that they had taken all reasonable steps to prevent such actions. 

Discrimination means treating a transgender person less favourably than another worker who is not contemplating, undergoing or has undergone gender reassignment.

For example, to establish whether there has been less favourable treatment of someone undergoing gender reassignment in terms of time off, the absence allowed to them should be compared with absence due to sickness or injury of other people which in their case is not related to gender reassignment.

Branches should make sure that transgender workers are treated as being of the gender in which they live.  This should be so whether or not they have been through medical reassignment or through the legal process of acquiring a Gender Recognition Certificate.  Recognition of a change of gender for employment purposes should usually be from the point at which the person begins living in their new gender.

It is not acceptable to treat a person undergoing gender reassignment as belonging to neither one sex nor the other, either for a period of time or for life.

Harassment

In 2005, the Sex Discrimination Act was amended to expressly outlaw harassment on grounds of sex and on grounds of gender reassignment.  As with harassment on other grounds, it does not matter whether or not a harasser intended their behaviour to be offensive - the effect is just as important.  Harassment does not have to be targeted at a particular victim who is known to be transgender.  It is enough that transphobic language, ‘jokes’ or actions create a hostile environment.  Importantly, the perception of the person experiencing harassment must be taken into particular account, alongside other factors, when deciding if harassment has taken place.

Current employment law does not expressly extend to harassment of workers by someone who is not under the direct control of the employer, such as a member of the public, on any ground  (sex, race, disability etc).  But if a worker is subjected to serious harassment which the employer could prevent but does not, the worker could claim there has been a breach of contract so serious that it entitles them to resign and claim they has been unfairly dismissed – constructive dismissal. 

It is useful to remind employers of this when negotiating harassment policies!  Employers must take positive steps to support and protect all workers from harassment by co-workers, service users and members of the public.  This should include well publicised policies, monitored to check their effectiveness, and training of managers and all staff.  Branches should ensure the harassment policy includes specific reference to gender identity and gender reassignment. 

Indirect Discrimination   

Because transgender people were unable to change their legal sex until 2005, heterosexual transgender people were unable to marry, as their partner was of the same legal sex.  This resulted in indirect discrimination in a range of areas, for example paternity and childcare leave, passing on pension rights and insurance policies to partners or children, employment related benefits such as membership of clubs and admissions to events.

It is now possible to gain legal gender recognition and also to form a civil partnership with a person of the same sex, giving the same right to workplace benefits as for married partners.  However, many people are not in a position to take these legal steps, for a range of different reasons.

Branches should ensure that transgender workers are treated as the gender in which they live, irrespective of legal sex.  Transgender workers should have equal rights and equal access to benefits, including equal recognition of their partner and family.

But further, UNISON believes that no one should be discriminated against on grounds of gender or marital/civil partnership status.  All should have equal rights and access to benefits, whether married or unmarried, whether a registered civil partner or not, and whether their partner is of the opposite or same sex.

All contracts and agreements should be checked for possible discrimination.

Victimisation

The Regulations make it unlawful to victimise someone because they have made a complaint of discrimination or given evidence or information in someone else’s complaint.

Genuine Occupational Qualification

In the vast majority of cases, the gender of a worker is of no relevance to their ability to do a particular job.  However, the Sex Discrimination Act does allow for an exemption where to be of a particular sex is a ‘genuine occupational qualification’ for that post.  The Gender Reassignment Regulations have a corresponding exemption relating to gender reassignment.  It might apply where the work involves conducting intimate searches, or work in a private home where reasonable objection can be shown by the employer because, for example, intimate contact is involved. 

It is important to note that the exemptions (including the ‘single sex’ exemption) only apply to people who have not gained legal recognition for their acquired gender.

The Sex Discrimination Act makes it clear that the employer must act reasonably in claiming a genuine occupational qualification (GOQ).  For example, conducting intimate searches is unlikely to be a main part of any particular post.  The employer must consider whether these tasks could not be carried out by someone else.  Also, the GOQ must be identified at the beginning of the recruitment process and stated in the application pack.

If a member intending to undergo gender reassignment works in a single sex position or environment before changing gender, it is likely to be beneficial for the member, the employer and any service users if redeployment can be negotiated.  Branches should make sure that options are discussed early on, so the best outcome can be reached.

Equal Opportunities Policies

Equal opportunities policies that refer to discrimination on grounds of sex can be considered automatically to include discrimination against transgender people, because of the Gender Reassignment Regulations to the Sex Discrimination Act.  However, unless this is spelt out in the policies, the rights of transgender people remain invisible.

Branches should make sure that where equal opportunities policies refer to discrimination on grounds of sex they specifically include discrimination on grounds of gender identity and gender reassignment.

Recruitment and interviews

Branches should negotiate recruitment polices and procedures that give transgender workers a fair deal and which make it clear to candidates that discrimination is not tolerated.  This starts from the very beginning - job adverts should state that applications from transgender people are welcome.

There is absolutely no obligation for a transgender person to disclose their gender history as a condition of employment.  For most people, this is a very private matter. Many transgender people have experienced prejudice and harassment as a result of disclosure. However, if they do choose to talk about it, it would be unlawful to use this as a reason for not offering them the job.  Similarly, it is unlawful to dismiss someone for not disclosing their gender history, or for disclosing this a later date.

Records and Confidentiality

Confidentiality is crucial.  Some transgender members may be out at work about their gender history.  This is their decision alone.  Being out to one person or small group of people does not necessarily mean a person wants to be out to everybody.  Branches should insist that the employer’s personnel records for transgender people do not refer to a previous name and that records made before a change of name are updated.

There may still be some records which identify a person’s gender history, such as records of absence for medical treatment.  For people without a Gender Recognition Certificate, some records, for example those relating to pensions and insurance, may include a reference to their legal sex.  Access to any records showing the change of name and any other details associated with the person’s transgender status, should be restricted to staff who ‘need to know’ for specific reasons. ‘Need to know’ refers to those directly involved in the administration of a process, for example the personnel officer, or the person who authorises payments into a pension scheme.

Breaches of confidentiality should be treated in a serious manner and may amount to unlawful harassment.

The law recognises the seriousness of confidentiality issues.  The Gender Recognition Act gives anyone applying for or holding a Gender Recognition Certificate particular privacy rights. It is a criminal offence to pass on information acquired ‘in the course of official duties’ about someone’s gender recognition, without the consent of the individual affected.  ‘Official duties’ include employment, trade union representation or supply of business or professional services.

A significant number of UNISON members have to undergo criminal records checks because of the nature of their work.  There is a procedure for transgender workers which  protects their confidentiality with employers while enabling the necessary checks against previous names.  For further information for England and Wales, contact the Sensitive Casework Manager at the Criminal Records Bureau - www.crb.gov.uk – search under transsexual applicants.  For Scotland, go to www.disclosurescotland.co.uk.  An equivalent  bureau called Access Northern Ireland is being established.

The need for scrupulous confidentiality applies to our union work as well.  Union records must be kept up to date and old records which refer to a previous name/gender must be destroyed (or if they must be kept and cannot be updated, their security ensured).

Redeployment and retirement

A worker undergoing gender reassignment may want to be redeployed or retired. Any course of action should be decided according to the wishes of that member.

In large organisations, redeployment may be relatively easily.  In smaller organisations it may be less easy.  If it is not an option, it is important that the member feels able to stay in their current post and feels in control of decisions being made.  If harassment or lack of support from colleagues mean the member does not feel able to stay in their current post, then these problems must be addressed.  It must not be left to the member to deal with any prejudice.  See the section below on communicating with other workers.

Branches should make sure that difficulties accommodating the member’s choice are not turned into grounds for dismissal or retirement. If redeployment does take place, it may be best for it to coincide with the change of gender, so the member starts their new post in their new gender role.

Negotiated retirement packages should be equivalent to those offered to other workers taking early retirement.

Single Sex Facilities

A transgender worker should have access to ‘men only’ or ‘women only’ areas according to the gender in which they live permanently.  The employer and worker should agree the point at which the use of facilities such as changing rooms and toilets should change from one sex to the other. The time to change will usually be the point at which the person begins to live permanently in the gender with which they identify. It is not acceptable to insist for the long term on transgender workers using separate facilities, for example a unisex wheelchair accessible toilet.  Transgender workers are entitled to support from their employers, including any discussions and explanations with other members of the workforce or service users. It is the employer’s responsibility to manage their attitudes.

If these practicalities are mismanaged it can cause bad feeling and hostility between co-workers.

Dress Codes

Branches should negotiate flexibility in dress codes to accommodate the process of transition from one sex to the other.

Pensions and insurance

Everyone born since April 1955 now receives their state pension at 65.  But women born before 1950 can still claim state pension at 60.  Transgender people without a Gender Recognition Certificate are treated as the sex recorded at birth for the payment of state pensions.  If a person retires earlier or later than others of their gender because of their legal sex, branches should ensure the employer keeps the reason for this confidential.

Male to female transgender people who gain a Gender Recognition Certificate after turning 60 can have their state pension backdated to their 60^th birthday.

Employers registering workers for corporate insurance and benefits policies need to check with their underwriters if they are required to provide information about any transgender worker’s status.  Some insurers automatically invalidate a policy if the transgender status of a person without a Gender Recognition Certificate is not disclosed.

Branches should make sure the employer gets written consent from such a worker before disclosing information, and that the information is provided in confidence.  If the employer is unaware of the worker’s transgender status, the obligation to disclose this passes to the worker.

An important factor for a member in transition from one gender to the other is how this will be handled at work - particularly that any process is agreed with them. Issues to consider include:

• Whether the member wants to stay in their current post or be redeployed
• The expected time scale of any medical and surgical procedures
• The expected point or phase of change of name, personal details and gender
• What time off will be required for treatment and/or possible side effects from any medication
• Whether the member wishes to inform line managers, co-workers and service users themselves, or would prefer this to be done for them
• What amendments will be required to records and systems
• Whether a transgender person is adequately covered by existing policy on issues such as confidentiality, harassment and insurance and if not, how these will be amended
• Whether training or briefing of co-workers or service users will be necessary and at what point and by whom this will be carried out

Communicating news to other workers or service users

There is no general need to inform co-workers, service users and the public that a worker is undergoing gender reassignment. It is necessary only where the working relationship is continuing from before to after transition. It is usually good practice for employers to take responsibility for informing those who need to know, but the wishes of the individual should be given priority.

Education should take place on two levels: general information about transgender people and specific information for people to understand the situation of this particular person.  At the point of change of gender, it is common for people to take a short time off work and return in their new name and gender role. This is often used as an opportunity to brief people. The right of transgender people to work free from discrimination and the unacceptability of harassment must be made clear.

Branches should work with management on this process.  It will be important to:

• Include sufficient information to convey the facts and satisfy people’s curiosity
• Not go into too much detail
• Respect the wishes of the transgender person and their right to medical confidentiality in terms of discussing detailed personal aspects
• Pitch the information at a level and style appropriate to the audience involved
• Include details of how colleagues might seek further information
• Include the name the person wishes to be known by in their new gender.

Medical Treatment During Employment

Time Required

Transgender people who decide to undergo medical and surgical procedures relating to gender reassignment may need some time off work. Assessment by a qualified professional may take several months or even years. Appointments may involve travelling long distances, so are likely to take a whole day. Following this, there is typically a period of one or more years before the person is accepted for surgery. Some people may require more than one operation. The time off following this will vary greatly, from one week to around 12 weeks, depending on the nature of the surgery and the physical demands of the person's job.

Branches should ensure adequate time off is given distinct from other sick leave. Workers undergoing gender reassignment would be entitled to the same sickness absence and pay as other staff but may require additional leave which may have to be specifically negotiated.

The process of gender reassignment

Diagnosis of transgender people is carried out by a specialist and may take a matter of months or a period of years.  Preliminary diagnosis is usually followed by hormone therapy and typically after around 6 months the person’s physical appearance will begin to change. The person may start to live full time as a member of their 'new' gender before they begin hormone therapy or they may wait until after hormone therapy has started to change their physical appearance.  Some people remain in their usual gender role at work for longer. People can continue to work throughout this period.

When the person starts to live full time as a member of their ‘new’ gender, their name and other records will be formally changed.  From this point they should be treated as belonging to their ‘new’ gender for employment purposes. They may go on and have surgery after one or two years of hormone therapy.

Capability procedures

Employers may need to be made aware of possible side effects of medication, which may adversely affect work performance.  Also, people sometimes need reduced hours or duties for a temporary period when they return to work following surgery. Together with the member, branches should meet the employer to discuss options around a temporary reduction of hours or duties or (if this is what the member wants) relocation. Some employers may try to dismiss workers for lack of capability.  Branches must make it clear to the employer that lack of capability as a ground for dismissal is not appropriate in these circumstances.

Branches should negotiate with employers to ensure:

• gender identity and gender reassignment are included in equal opportunities policy and practice and there is well publicised compliance with the Gender Reassignment Regulations
• all workers are trained and informed about transgender people’s rights - that harassment and discriminatory behaviour will not be tolerated
• there are clear procedures for members undergoing transition
• workers undergoing gender reassignment have paid leave from work for specialist medical appointments and for surgery
• all records are kept up to date, old records destroyed and confidentiality is practised scrupulously
• all workers are treated as the gender in which they live and work, irrespective of their legal sex
• transgender people who have not acquired Gender Recognition Certificates are advised of the legal implications of their status for pensions and other benefits.

We urge employers to adopt positive equality policies, not simply ban discrimination.  There is a model statement on sexual orientation and gender identity on our website at http://www.unison.org.uk/file/B2307.pdf

Branch checklist

Branches should ensure

• all members are clearly informed that discrimination on grounds of gender identity and gender reassignment will not be tolerated by the union at any level
• training and information is provided to those who have a role in advising and representing members
• union records are kept up to date, old records destroyed and the highest levels of confidentiality ensured
• transgender members are given information about support groups, including our own self-organised groups.

In UNISON, transgender members and lesbian, gay and bisexual members work together in coalition.  Branches should encourage transgender members to participate in UNISON’s lesbian, gay, bisexual and transgender members self-organised group and support local LGBT organisation. 

If UNISON has a picture of agreements on transgender workers rights across the country we can spread best practice in different sectors and regions.  If you negotiate an agreement please send a copy to the Bargaining Support Group, 1 Mabledon Place London WC1H 9AJ or e-mail [email protected].

Information, practical advice and examples of good agreements are available on the UNISON Bargaining Zone – www.unison.org.uk/bargaining/zone.

Visit the Lesbian, Gay, Bisexual and Transgender (LGBT) section of the UNISON website for up to date advice, information and events – www.unison.org.uk/out  LGBT members can sign up for a monthly email news bulletin and for national LGBT mailings, including our newsletter Out in UNISON.

Each region has a Regional LGBT Group which organise regular open meetings for LGBT members.  They can advise on setting up a branch LGBT group.

For help when you need it call UNISONdirect, UNISON’s information and advice phone line service for members on 0845 355 0845 (voice) or 0800 0 967 968 (minicom) between 6 am and midnight, Monday to Friday and 9 am to 4 pm on Saturday.

UNISON welcomes comments on this Factsheet.  Please either write to or email us at:

UNISON Membership Participation Unit

1 Mabledon Place London WC1H 9AJ

[email protected]

www.unison.org.uk/out

Press for Change - www.pfc.org.uk- political lobbying and educational organisation which campaigns to achieve equal rights and liberties for all trans people in the UK through legislation and social change. UNISON is affiliated.

BM Network, London WC1N 3XX

[email protected]

Information on the Gender Recognition Act and Gender Recognition Panels

including ‘Frequently asked questions’ and application forms for gender recognition

www.grp.gov.uk

Gender Trust – www.gendertrust.org.uk - support for transgender women and men

PO Box 3192, Brighton BN1 3WR

Phone: 07000 790347

[email protected]

FTM Network - www.ftm.org.uk- Support for transgender men.

BM Network, London WC1N 3XX

[email protected]