THE Scottish Government has stated its intention to make the legal process of changing gender easier and less intrusive. This follows a 2016 House of Commons Committee investigation which reported high levels of transphobia in the UK, with an alarming rate of attempted suicide within the trans-gender community.
Under the current Gender Recognition Act (2004), an individual must be 18 before they can apply to be legally recognised for any change to their gender status. The gender recognition certificate (GRC), required to complete this process, is usually granted only if the applicant is diagnosed with gender dysphoria, a condition where their identity conflicts with their sex assigned at birth. They must also demonstrate they have been in transition for at least two years and, if married, secure their spouse’s consent before they can be issued with a GRC. The new Scottish Government proposals would abolish many of the existing requirements and enable trans individuals to apply for a GRC at 16. There are also new plans to legally recognise non-binary individuals.
Employers in Scotland need to focus on building awareness of this issue. While training staff is essential, research shows that every trans experience is different, so employers will also need to look at each person as an individual and provide tailored support.
From there, employers need to think about how they would support an employee or applicant who wishes to change their gender and how they are classified at work. For instance, a non-binary employee might request to change their ID card or possibly be issued with two, one identifying them as male and other as female.
The arbitration and conciliation service ACAS recommends that companies and organisations should implement a gender reassignment policy to help them avoid any potential legal pitfalls. This includes an explanation of the Equality Act 2010, appropriate terminology to use in the workplace, procedures for changing relevant records and a clear policy on uniform requirements, with potential to provide non-binary or gender neutral options. Toilet facilities are an important issue. The ACAS research suggests companies and organisations should consider installing individual cubicles catering for all staff regardless of gender identity or expression.
Once an individual has been granted a GRC, they are protected through law against disclosure of information relating to their gender history. Failure to do so is an offence under the 2004 Act and carries the risk of a fine. Trans-gender employees, including those still in the process of reassigning their gender, are also protected from discrimination, harassment, and victimisation under the Equality Act 2010. Although gender reassignment protection available under the Equality Act applies to a very specific group of trans employees (and doesn’t, for example, apply to non-binary or non-gendered employees), employers should ensure all staff are treated with dignity and discretion in the workplace in relation to their gender identity with zero tolerance of bullying from colleagues.
Employers can show themselves to be progressive by removing male/female declarations in application forms. This same principle has been promoted by equality campaigners who argue omitting a name from an application can reduce racial bias in the recruitment process. Adding non-binary and other options under gender within equality monitoring forms that employees are required to complete is also seen as best practice.
Politicians in Scotland are pushing forward with a progressive approach to gender recognition. With anecdotal evidence suggesting schools, colleges and universities are far more advanced in their understanding and support of students in the transgender community, private and public sector employers will need to ensure they get their processes updated to reflect the forthcoming changes.
Val Dougan, Professional Support Lawyer at law firm CMS