How do employers protect their trans and gender-fluid employees?

When Liz Truss was Minister for Women and Equalities, a year before she campaigned to become Prime Minister, one of her key initiatives was to ‘motivate employers to make improvements to workplace practices and culture’.

Her ambition was to push employers to do more to prevent sexual harassment at work, although she never actually brought forward any new legislation on this while in post.

Employers are already required by law to take reasonable steps to prevent harassment related to “protected characteristics” including sex, sexual orientation and gender reassignment. But as society continues to evolve, and understanding and acceptance of gender fluidity grows, so employment law and employers must adapt to keep pace.

I first dealt with a case of then called “gender reassignment” in 2002 when the law required employees claiming discrimination to show they were undergoing a medical process. In 2010, the Equality Act extended protection to a person planning to undergo, undergoing or who had undergone a process to physiologically reassign their sex.

Now, there is much better recognition that non-binary and gender-fluid people, as opposed to individuals transitioning from one sex to another, need protection as well.

Progress is positive but, as society’s definition of inclusivity broadens, employers are left with more to think about when it comes to protecting their employees and ensuring policies are as inclusive as they need to be.

What should employers do to ensure they are protecting all of their employees and complying with the law?

  1. Ensure diversity, anti-discrimination and equal opportunities policies are up-to-date.
  2. Familiarise employees with the different types of discrimination such as ‘harassment’, ‘direct’ and ‘indirect discrimination’ and ‘victimisation’.
  3. Consult trans and gender-fluid employees when creating inclusivity policies.
  4. Consider sensible toilet and washing facility arrangements.
  5. Take effective action if problems arise.

Adding even more complexity are the often-competing rights of freedom of religion and belief and the risks of discriminating against those who invoke their right to refuse to serve/or provide services to someone based on their beliefs.

This is an ever-evolving landscape that businesses must stay on top of, ensuring inclusivity policies keep up with the speed of societal change.

How Moore Barlow can help

David Ludlow is a partner in the employment law team for businesses and individuals. He advises and represents a wide range of businesses, charities, schools and private individuals on the full range of employment law and related legal issues.

Contact David Ludlow for help and advice on protecting the rights of trans and gender-fluid employees.