22.10.2018

Gender Recognition Act – what does it mean for employers and employees?

Gender Recognition Act – what does it mean for employers and employees?

As an employer, it’s your job to make sure that your employees feel suitably supported in their place of work. Not only does work-based support through personal issues greatly improve company loyalty, the boost in motivation can have a significant impact on their productivity overall.

As you can see, supporting your workers can greatly benefit both you and your staff. This can make the world of difference, particularly for transgender employees wishing to live as their expressed gender both in their personal lives and their careers.

Supporting transgender employees

Understanding and respect are key here. Transgender people are those whose gender identity does not match the sex they were assigned at birth.

There have been a great deal of scientific studies and substantial neurological research that confirms there is a biological explanation behind this, which disproves the myth that transgenderism is a mental health problem or “a choice” made by the individual.

Gender Recognition Certificates

While the Gender Recognition Act came fully into effect back in 2005, less than five thousand workers in the UK have actually been issued a Gender Recognition Certificate. These certificates allow your employee to legally change the official status of their gender identity.

In many cases, transgender people in the UK tend to change their names by deed poll and apply to have their gender changed on their driving licence and passport. This does not, however, alter their legal gender. A person’s legal gender is tied to their UK birth certificate.

The Gender Recognition Act created a process in which transgender people can apply to have both their UK birth certificate and legal gender changed.

Their application then goes before the government’s Gender Recognition Panel which, if successful, will issue them a certificate. The law then recognises the individual of having all the rights and responsibilities as a person of their true gender identity; including all marital, retirement, and pension related legal rights.

Legal requirements

However, in order to be accepted for a Gender Recognition Certificate, your employee will need to provide proof showing that:

  • They are over the age of 18,
  • They have received a medical diagnosis of gender dysphoria (a condition of extreme discomfort or distress due to the mismatch between gender identity and biological sex) and show a report from a medical professional detailing any medical treatment they have received,
  • They have lived for at least the past two years as their expressed gender and intend to live as that gender for the rest of their lives, and that
  • They have provided a statutory declaration that they intend to live as their expressed gender until death.

In most cases, they will also need to pay a fee of £140 for their application to be processed, however they may be able to prove low income for the reduction or removal of this fee.

On top of this, if the individual is married, they must gain consent from their spouse in order to apply for a Gender Recognition Certificate.

The application is then submitted to the panel, whom the applicant will not meet in person, to be reviewed. If the panel decide the individual meets their requirements, they will be issued a Gender Recognition Certificate.

If unsuccessful, the individual’s biological sex shall remain their legal gender without the right to appeal, unless upon a point of law.

What this means for employment

In order to avoid unlawful discrimination, it is essential that you respect a transgender employee’s expressed gender identity with or without a Gender Recognition Act. This is because all of your workers are covered by the Equality Act 2010, in which gender identity is a protected characteristic.

Unlawful discrimination can take many forms, which include:

  • Direct – This includes unnecessarily requiring someone to not be transgender to fulfil the role.
  • Indirect – If transgender workers are put at a disadvantage by a provision or criteria that applies to all staff in your company, this is still considered discrimination.
  • Harassment – If you act, or allow others to act, in a way which violates the dignity of a transgender worker or creates an environment that is hostile, degrading, or offensive, this is a breach of the Equality Act.
  • Victimisation – It is also against the law to discriminate against a person with protected characteristics because they have used the provisions of the legislation.
  • By perception – If you believe someone in your company to be transgender and discriminate against them because of this belief, this counts as unlawful discrimination even if they are not transgender.
  • By association – You are not able to discriminate against workers for having an association with transgender people, such as friends or spouses.

In some cases, a tribunal may allow an organisation to indirectly discriminate if the discrimination can be objectively justified as a means of achieving a legitimate aim.

Many transgender Brits choose to forgo the long and arduous process of applying for a Gender Recognition Certificate – and potential rejection – by simply changing their name by statutory declaration or deed poll. While this does not give them access to the legal rights of their expressed gender, you as an employer are required to make reasonable adjustments to respect and honour this decision in your workplace.

Speak to Additional Resources today

If you have any number of employees, you are legally required to uphold their rights as laid out in the Equality Act. For further support or to start your search for highly skilled candidates, talk to the team today on 01277 822668 or email us at info@additionalresources.net

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