Employment

Your rights when transitioning at work

In this article we explore your rights while transitioning at work, and what to do if you feel your employer isn’t taking the necessary steps to protect you from discrimination.

03 February 2022

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Stonewall estimates that 1% of the UK population identifies as transgender. Those who are transitioning or who have already undergone gender reassignment face high levels of abuse and inequality at work and in their personal lives.

A survey by YouGov for recruitment website Totaljobs, revealed only half of people that socially transitioned at work said that they were satisfied with the level of support they received. Sadly, 19% of those who took part in the survey and socially transitioned at work said they received no support at all from their HR departments.

Discrimination while transitioning at work

Unfortunately, transgender harassment is not uncommon in the workplace. There are signs of improvement, though. According to Totaljobs, in 2016, 38% of trans workers said they’d experienced discrimination from their colleagues. In 2021, this number decreased to 25%.

Being transgender, you’re protected by the Equality Act 2010. This means you cannot be discriminated against because you are transitioning.

But what exactly qualifies as discrimination in a professional context?

Discrimination in relation to transitioning at work can take the following forms:

  • Direct: For example, your employer not allowing you to use the toilet of your choice
  • Indirect: For example, your employer forcing you to adhere to a gendered uniform policy that places you in the wrong gender
  • Harassment: For example, your employer or colleagues verbally abusing you because you are transitioning
  • Victimisation: For example, your employer firing you after you complain about harassment or discrimination

In this article, we take you through your rights while transitioning at work and what you can do if you feel your employer is not taking the necessary steps to protect you from discrimination.

Am I protected by equality laws?

According to the Equality Act 2010, you cannot be discriminated for the following (what are referred to as protected characteristics):

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

You are classified as having the “gender reassignment” protected characteristic if you are intending to or are undergoing the reassignment of your birth sex to your preferred sex. The law therefore protects people who have or are perceived to have taken any steps towards transitioning.

You should be aware that you’re not required to have a Gender Recognition Certificate or to have had any medical intervention to fall under this category.

Inclusive policies

It’s important to note that while you don’t have come out as transitioning at work, it may be in your best interest to do so. This is because you may be offered more support during this pivotal time in your life.

To help those undergoing gender reassignment at work, some employers have put in place more inclusive policies. In 2021, for example, an NHS trust released a new policy allowing staff to use whichever toilet, shower or changing room they wanted.

Another inclusive policy put in place by many organisations includes the normalisation of pronoun sharing. Your employer has a duty to refer to you as your chosen pronouns while you are transitioning. Any colleague or employer who insists on using historical pronouns could be accused of harassment and is therefore breaking the law. Workplaces are attempting to protect employees from the incorrect use of pronouns by encouraging its staff to actively share their pronouns. It’s hoped that this will help improve inclusivity to those who are in the process of or who have already transitioned.

Privacy

You have a right to privacy while transitioning at work. That means you can control the amount of information you wish to disclose about your old and new identities. Your employer has a duty to make sure any information you do share with the HR department is kept safe and confidential.

Time off when transitioning

You have the right to take time off work for appointments related to your transition the same way you would if you were ill or had suffered an injury. This means you are entitled to sick pay (if you are eligible) and you should not be penalised or treated unfairly for taking it. It’s against the law for an employer to treat you less favourably than they would if your absence was the result of sickness or injury.

What to do if you’re worried about your work environment

Statistics from the YouGov survey for Totaljobs revealed a shocking 43% of trans employees said they’ve left a job because the work environment was unwelcoming. This makes it even more important for employers to take action to ensure the workplace is a safe and inclusive place for those who are transitioning.

If you are worried about your work environment, the worst thing you could do is to suffer in silence. Coming out as trans at work to trusted colleagues might help you feel emotionally supported and give you the confidence to approach your employer with your concerns.

You could also reach out to charities that offer support to individuals who are transitioning in the workplace. For example, Gires advises and points individuals undergoing gender reassignment to other organisations for more tailored support. Stonewall offers information on inclusivity in the workplace and has a jobs board for LGBT inclusive employers.

While transgender discrimination is still rife, you’re entitled to protection from it by the law. If you feel your employer is not taking the necessary steps to protect you from discrimination, you can hold them to account by making a discrimination claim against them.

Our award-winning employment lawyers fight for justice for those who have been treated unfairly and discriminated against in the workplace. We’ve changed legislation to protect our clients and ensure that future generations don’t suffer from discrimination. To speak to an expert about the potential to raise a claim, contact us today.

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