This month the government launched the Gender Recognition Act consultation on how to make it less intrusive and bureaucratic for transgender people to change their legal gender on birth certificates.

The Gender Recognition Act 2004 applies across the UK and sets out a process for obtaining a gender recognition certificate that enables transsexual people to gain full legal recognition for their “acquired” gender.

The consultation is set against a backdrop of increasing awareness and discussion regarding the rights of individuals who identify as something other than simply male or female.  Gender identity is an increasingly live issue in modern society.  In late 2017 John Lewis became the first UK retailer to remove gender labels from children’s clothing.  Many organisations including a number of major banks now allow customers to have gender neutral titles including the neutral option Mx and Ind (Individual).


Understanding gender identity

Most employers are familiar with the concept of transgender status and how to appropriately handle a workplace situation involving an employee in transition.

Less clear are the legal protections and the practical steps an employer should take where an employee discloses their gender as non-binary.  There are many terms people use to define their gender identity, which refers to an individual’s feelings about their own gender irrespective of biology or how other people may perceive them.

Sex, unlike gender identity, refers to biology and the male/female physical development.  For some people the sex they were assigned at birth does not match how they feel or identify.

Gender identity is also distinct from sexual orientation and it is misguided to make any assumptions about the sexual orientation of non-binary people.


What does the law say?

In Northern Ireland individuals are protected from unlawful discrimination if they intend to undergo, are in the process of, or have at some time in the past undergone, gender reassignment.  However, these protections do not extend to non-binary individuals as they may not transition at all.

The risk of legal action is more likely to arise from the common misconception that non-binary individuals are not heterosexual as under the Employment Equality (Sexual Orientation) Regulations (NI) 2013 individuals are protected from unlawful discrimination on grounds of their actual or perceived sexual orientation (emphasis added.)  This includes situations where a person’s sexual orientation is wrongly perceived or misunderstood.

In the rest of the UK the Equality Act 2010 provides more extensive protection as the protected characteristic of gender reassignment no longer requires medical treatment.  The 2010 Act also prohibits discrimination because a person associates with a trans-person or is perceived (including wrongly perceived) to be a trans-person.

Even if the workplace behaviour does not amount to unlawful discrimination, behaviour that amounts to a fundamental breach of the employment contract may give rise to complaints of unfair constructive dismissal against the employer.


What should employers do?

In 2017 the ACAS paper “Supporting trans-employees in the workplace” reported “the biggest barrier identified (to inclusion) was a lack of knowledge amongst employers, especially the experiences of non-binary or otherwise nonconforming people.” Workplace policies in this area are generally a reactive measure increasing the risk of misunderstandings, errors of judgement, and legal liability.

Against this background employers should consider taking action in areas that include:

Applications for employment – a person’s gender is generally irrelevant to their ability to carry out the role or a particular task.

  • Do your job adverts contain phrasing biased against one gender?
  • Do you request pronouns on application forms, for example Mr, Mrs, Ms, Miss? Can you offer alternatives or is there a requirement to ask the question at all?

Gender specific dress codes – may require transgender and gender non-binary people to dress in a manner inconsistent with their identity.

  • Can you revise your dress code to allow people to dress consistently with their identity whilst maintaining appropriate standards of professionalism?

Facilities – is there the option to provide unisex facilities?

Handling concerns and complaints – Above all it is important to take complaints seriously. A lot of negative treatment arises from a lack of understanding or misconceptions about gender identity. It can include:

  • Banter, comments, and personal opinions about, for example, someone’s personal appearance or how they choose to dress;
  • Discrimination or harassment may arise from questions or comments such as “are you a boy or a girl?” and statements such as “you’re confused” and other forms of teasing and insults.

As gender identity moves increasingly into the mainstream, the number of non-binary individuals in the workplace is almost certain to increase. It is an area in which we recommend employers increase their awareness and understanding and take steps to help ensure a proactive approach and an inclusive workforce.