Transgender Workers Rights – May 2013 INTRODUCTION This

Transgender Workers Rights – May 2013 INTRODUCTION This

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Transgender workers rights – May 2013
INTRODUCTION
============
This factsheet gives information about the rights of transgender
people at work and 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 factsheet on
Lesbian, gay and bisexual workers rights.
BACKGROUND
==========
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. The process is referred to as ‘gender
reassignment’ or ‘transitioning’.
Many transgender workers face discrimination, despite the fact it is
unlawful. Trans people have high levels of unemployment and
self-employment. For those who are employed, incomes are well below
the average. 41% of trans respondents to our most recent UNISON
members survey feared for their job security if people knew they were
trans. 60% of them had experienced transphobic comments from
colleagues and managers.
The Equality Act 2010 protects people who are proposing to undergo,
undergoing or have undergone a process (or part of a process) of
gender reassignment. It places a duty on public employers to take
positive steps to eliminate discrimination, promote equality of
opportunity and foster good relations for transgender people. For
more, see Public sector equality duty, below.
The Gender Recognition Act 2004 gives people the opportunity to apply
for full legal recognition for their acquired gender and important
measures to protect people’s privacy (see section below on Records and
confidentiality). However, whether a person has a Gender Recognition
Certificate has little or no bearing on their employment. All
transgender workers should be treated as the gender in which they
live, whether or not they have applied for such legal recognition.
UNISON Policy
=============
All transgender people have the right to equal treatment, protection
from discrimination and the full support of the union. This is written
into UNISON’s rules, for example Rule B1.2. UNISON has developed an
inclusive Equality Scheme to promote equality in everything we do.
Gender identity is one of the equality strands for the scheme.
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.
Branches need to be aware of trans equality issues and negotiate
policies before one of their members or potential members experiences
difficulties. The Scottish Transgender Alliance and UNISON have
produced an introductory guide for reps, UNISON stock no 2726 – see
page 12.
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).
Definitions
===========
Gender identity: a person’s internal sense of where they exist in
relation to being male or female.
Transgender or trans person: a person whose own gender identity does
not conform to the sex they were assigned at birth. These are
inclusive, umbrella terms, including people who describe themselves as
transsexual, transvestite or cross dressing people, and people who
have a more complex sense of their own gender than either 100% female
or 100% male.
Transsexual person: legal/medical term for someone who lives (or
wishes to live) permanently in the opposite gender to that 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: The sex recorded on your birth certificate.
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.
SUMMARY OF THE LAW
==================
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 (GRC), they are legally of that
gender for every purpose and have all the rights and responsibilities
associated with that gender. There is information about the
application process at http://www.grp.gov.uk.
Many trans people do not apply for a GRC. They may not be able to
undergo permanent gender reassignment for health, personal, family,
financial or other reasons. If a person was married before undergoing
gender reassignment, they can’t currently apply for a full GRC without
dissolving their marriage, which many people are not prepared to do.
However it is possible to get an interim certificate, dissolve the
marriage and enter a civil partnership with the same person. Once same
sex marriage is introduced, married people will be able to gain full
gender recognition without ending their marriage.
Employment rights do not depend on whether a person has a Gender
Recognition Certificate. Employers should not ask for a person’s GRC
and it should never be a pre-condition for transitioning at work. To
make an application for a GRC, a person needs to show they have been
living – and working - in that gender for at least two years. So being
asked to show a GRC as a condition of changing employment details is
like being asked to show a full driving licence before you can apply
for a provisional one.
Equality Act 2010
The Equality Act 2010 protects against discrimination because of
gender reassignment in employment and service delivery. It covers all
sizes and types of employer and all types of worker, including agency,
contract and temporary workers. It bans direct and indirect
discrimination and victimisation.
The Act makes clear that it is not necessary for people to have any
medical diagnosis or treatment to gain this protection; it is a
personal process of moving away from one’s birth gender to the
preferred gender. A person remains protected, even if they decide not
to proceed with transitioning.
People discriminated against because they are wrongly perceived to be
trans, or who are discriminated against because of their association
with trans people or issues, are also protected.
Summary of gender reassignment employment protection:
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 grounds 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.
Branches should make sure that transgender workers are recognised and
respected as the gender in which they live. This is the case whether
or not they have had medical treatment or acquired a Gender
Recognition Certificate. Recognition of change of gender for
employment purposes is usually 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, even for a short period
of time.
Public sector equality duty
Public bodies in England, Scotland and Wales have a statutory duty to
have due regard to the need to eliminate discrimination, advance
equality of opportunity and foster good relations for transgender
people. A similar duty has been in force in Northern Ireland since
2000. While the Northern Ireland duty does not name gender
reassignment as a protected characteristic, the principles apply.
Having due regard means consciously thinking about the three equality
duty aims as part of the decision-making process, such as employment,
service delivery and financial decisions. This includes decisions on
cuts and redundancies.
Complying with the duty may involve treating some people better than
others to combat historic disadvantage.
Specific duties underpin the general duty, showing how public bodies
can meet its requirements. These are different in England, Scotland
and Wales, with those for England being less detailed or prescriptive
than those for Scotland and Wales. Whatever the specific duties, the
general duty remains the same and public bodies can only demonstrate
that they are complying with the general duty by taking steps such as
assessing the impact on equality of their policies and practices.
UNISON’s advice on the public sector equality duty, stock number 3062,
is available to download from unison.org.uk/equality.
Harassment
The Equality Act specifically outlaws harassment. 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 person who is known or thought to be trans.
It is enough that transphobic language, imagery, ‘jokes’ or actions
violate a person’s dignity or create a hostile environment.
Significantly, the viewpoint of the person experiencing harassment
must be taken into particular account, alongside other factors, when
deciding if harassment has taken place.
The Act also forbids sexual harassment – unwelcome sexual advances,
touching, sexual assault, sexual ‘jokes’ or materials of a sexual
nature that violate a person’s dignity and create an intimidating or
offensive environment.
An employer is liable if an employee is harassed by a third party
(such as client or member of the public) on at least two occasions,
not necessarily by the same person, if the employer knows the
harassment has taken place but failed to take reasonably practicable
steps to stop it happening again. The Tory-led Government proposes to
repeal this provision, but for now it stands.
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 could not change their legal sex until
2005, heterosexual transgender people were unable to marry, as their
partner was the same legal sex. This led to indirect discrimination in
gender-related benefits, such as passing on pension rights and
insurance policies to partners or children.
It is now possible to gain legal gender recognition. It is also
possible to form a civil partnership with a person of the same sex,
giving the same workplace benefits as marriage. However, not all trans
people can apply for legal gender recognition.
Branches should make sure 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.
All contracts and agreements should be checked for possible
discrimination.
Occupational requirements
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
Equality Act 2010 does allow for an exception where being of a
particular sex is an ‘occupational requirement’ of that post. It might
apply where the work necessarily involves conducting intimate
searches, or where services are provided to one gender only, such as a
women’s refuge.
The Equality Act makes it clear that the employer must act reasonably
in applying an occupational requirement. For example, conducting
intimate searches is unlikely to be a main part of any particular
post. The employer must consider whether these tasks could be carried
out by someone else. Also, the occupational requirement must be
identified at the beginning of the recruitment process and stated in
the application pack.
If a member who is intending to transition permanently works in a
single sex position or organisation, it is probably best for the
member, the employer and any service users if redeployment can be
negotiated. Branches should make sure that options are discussed early
on, to reach the best outcome.
Don’t forget that a person with a Gender Recognition Certificate is
legally of that sex for all purposes.
There are an even smaller number of cases where an employer may be
able to claim an occupational requirement that the postholder not be
transsexual. Where this is claimed by a religious organisation, they
will need to show that applying the requirement is a proportionate
means of achieving a legitimate aim – it must be crucial to the post
and not a sham or pretext.
Equality policies
It is unlawful to discriminate against trans workers, whether or not
this is stated in an employer’s equal opportunities policy. However,
unless it is spelt out, the rights of transgender people remain
invisible, trans applicants or workers remain unsure about how they
will be received and other staff and service users may not understand
their responsibilities to treat trans people with respect. Branches
should make sure that policies refer specifically to 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 and be placed in LGBT media.
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
pensions and insurance, may show their legal sex. Access to any
records showing the change of name and any other details associated
with a person’s transition, should be restricted to staff who ‘need to
know’ for specific reasons. ‘Need to know’ are 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 can be
unlawful harassment.
The law recognises the seriousness of confidentiality. 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.
Some 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 England and Wales,
contact the Sensitive Casework Manager at the Disclosure and Barring
Service (formerly CRB) [email protected] or phone the
dedicated line for transgender applicants 0151 676 1452. For Scotland,
phone the Disclosure Scotland helpline on 0870 609 6006 and ask to
speak to the Operations Manager in confidence. In Northern Ireland,
phone the Access Northern Ireland helpline on 02890 259100/email
[email protected] in confidence or see the Access NI
transgender policy at www.dojni.gov.uk .
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). There is an
agreed process for purging previous name information from the union’s
membership database.
Monitoring
It is increasingly common for employers to carry out workforce
monitoring. UNISON is strongly in favour of policies, practices and
staff attitudes to be monitored, to measure the implementation of
trans equality. However we urge extreme caution in seeking to monitor
the number of trans staff in any organisation. There is separate
UNISON guidance on workforce monitoring for sexual orientation and
gender identity on our website.
Pensions and insurance
Women born before 1950 can still claim state pension at 60.
Transgender people without a Gender Recognition Certificate are paid
their state pension according to the sex recorded at birth. If someone
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 60th birthday.
Employers registering workers for corporate insurance and benefits
policies need to check with their underwriters if they need 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 the
worker before disclosing information, and that the information is
provided in confidence. If the employer doesn’t know about the
worker’s transgender status, the obligation to disclose this passes to
the worker.
TRANSITIONING AT WORK – AGREEING A PROCESS
==========================================
Gender transitioning is often a very stressful time for a trans
person. How it is handled at work can make all the difference. It is
very important that the employer agrees how the process will be
handled with the person concerned, right from the start. Issues to
consider include:
*
Whether the member wants to stay in their current post or be
redeployed
*
The expected point or phase of change of name, personal details
and gender
*
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 existing policy on issues such as confidentiality,
harassment and insurance address transgender equality and if not,
how these will be amended
*
What training of managers and co-workers will be needed and when
and by whom this will be carried out
*
The expected time scale of any medical and surgical procedures
*
What time off will be required for treatment and/or possible side
effects.
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 though
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 needs to cover general information about transgender people
and specific information on the situation of this particular person.
The right of all people to work in dignity and 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:
*
Give the name the person wishes to be known by in their new gender
and emphasise the importance of using the correct name and gender
pro-noun (he or she) in future
*
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
*
Include details of how colleagues might seek further information.
Negotiating paid time off for medical treatment
People who decide to undergo medical or surgical procedures for gender
reassignment will need some time off work. It is unlawful to treat
trans people less favourably for being absent from work for gender
reassignment than they would be treated if they were ill or injured.
In terms of best practice, branches should seek to negotiate adequate
paid time off, distinct from other sick leave. Gender reassignment
treatment should not be regarded as elective or cosmetic. Time off
should ideally be recorded separately from sickness absence and not
used for absence management or monitoring purposes by the employer.
The process of gender reassignment
Diagnosis is carried out by a specialist and may take months or years.
Waiting lists for NHS funding for treatment vary around the UK, but
they can be substantial. Appointments may involve travelling long
distances, so are likely to take a whole day. Preliminary diagnosis is
usually followed by hormone therapy. Typically, the person’s physical
appearance begins to change after about six months. Some people start
to live full time in their new gender role before they begin hormone
therapy; others remain in their usual gender role at work for longer.
People usually continue to work throughout this period, but it can be
an extremely stressful time.
When a person starts to live full time in their new gender, their name
and other records will be 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.
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.
Capability procedures
Employers should be made aware of possible side effects of medication
and the general stress of transitioning, which can affect work
performance. 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 the member
wants this) relocation. Some employers may try to dismiss workers for
lack of capability. Branches must make it clear to the employer that
this is unacceptable and may well be unlawful.
Redeployment and retirement
Usually people want to stay in the same job through gender transition.
But sometimes a worker may want to be redeployed or retired. In large
organisations, redeployment should be relatively easily. If it is not
an option, it is important that active steps are taken to prevent
harassment or lack of support from colleagues or managers. 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 meeting the member’s
preferences on redeployment are not turned into grounds for dismissal
or retirement. If redeployment does take place, it should probably
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
Transgender workers should have access to single sex areas according
to the gender in which they attend work. 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. This 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 discussions
and explanations with co-workers 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.
checklist of negotiating points
===============================
Branches should negotiate with employers to ensure:
*
gender identity and gender reassignment are included in equality
policy and practice and there is well publicised compliance with
the law
*
transgender equality is clearly included in any equality
objectives and equality scheme, including specific actions in
equality plans and checks in equality impact assessments
*
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, recorded
separately from sickness absence and not used for absence
management purposes
*
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 all 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 www.unison.org.uk/out
Branch organisation
===================
Branch checklist
Branches should make sure:
*
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.
FURTHER INFORMATiON
===================
UNISON/Scottish Transgender Alliance introductory guide for reps
supporting trans members (stock no 2726) is at www.unison.org.uk/out
or available from UNISON LGBT officer, UNISON Centre 130 Euston Road
London NW1 2AY.
Visit UNISON’s LGBT webpages for up to date advice, information and
events –unison.org.uk/out Sign up for the monthly e-bulletin and hard
copy mailings on LGBT issues. Find the contact for your regional LGBT
group, who can put you in touch with your branch LGBT group or advise
you on how to set up a group.
If you don’t have internet access, or for help when you need it, call
UNISONdirect 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 and examples of good
agreements you negotiate. Please write to or email us:
Carola Towle, national officer, LGBT equality
UNISON Membership Participation Unit
130 Euston Road London NW1 2AY
[email protected]
unison.org.uk/out
Useful organisations
====================
Information on the Gender Recognition Act and Gender Recognition
Panels including frequently asked questions and application forms for
gender recognition www.grp.gov.uk
Press for Change - www.pfc.org.uk - political lobbying, education and
campaigning for equal rights and liberties for all trans people.
UNISON is affiliated. BM Network, London WC1N 3XX [email protected]
Scottish Transgender Alliance – www.scottishtrans.org – training and
good practice guidance on trans equality issues. Equality Network 30
Bernard Street Edinburgh EH6 6PR 07020 933 952 [email protected]
GIRES – www. gires.org.uk - Gender Identity Research and Education
Society – information for trans people, their families and the
professionals who support them [email protected]
Gender Trust – www.gendertrust.org.uk - support for all affected by
gender identity issues. 76 The Ridgeway, Astwood Bank, B96 6LX 01527
894 838 [email protected]
Gendered Intelligence - www.genderedintelligence.co.uk - workshops and
creative programmes to improve the quality of young trans people’s
lives and generate debate around gender.
Working for LGBT equality in UNISON: [email protected] 13