Gender Reassignment – Guidance for Line Managers
1, 2, 3, 4, 5, 6, 7,
Introduction Supporting a Colleague through Gender Reassignment Communicating to colleagues Managing employee data and information Returning to work – the real life test The next step References
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Gender Reassignment – Guidance for Line Managers This document provides guidance for Line Managers when supporting an individual through Gender Reassignment. The guidance forms part of our duties with regards to the Gender Equality Duty and the LSC Single Equality Scheme. The guidance outlines the stages of the gender reassignment process and highlights areas of importance for Line Managers when supporting an employee through gender transition for example, employee confidentiality, disclosure, effective communication methods and current legislation.
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Gender Reassignment – A Guidance document for Line Managers 1, Introduction Transgender people are those people who identify their gender to be different from their birth gender. Transgenderism, also known as gender dysphoria, is a medical condition. This condition means that the individual feels a sense of discomfort with their physical body and have a strong wish to go through gender reassignment or transition. It is estimated that Gender Dysphoria affects 1 in 10,000 people within the UK, but with many people opting for private treatment and changes in legislation, attitudes and employment conditions, this figure could be severely underestimated. Gender reassignment or transition is the process which is undertaken by an individual in order to be able to live permanently in the gender opposite to that of their birth gender. The process of gender reassignment including diagnosis and treatment will vary from person to person, depending on waiting times and whether the treatment is being funded privately or carried out by the NHS. The process can be long and arduous, involving a regime of specialist psychiatric evaluation, hormone treatment, real life experiences and sometimes reconstructive surgery, although many individuals live full time in their new gender without undertaking irreversible surgery. To complete the process and obtain a Gender Recognition Certificate individuals must in addition to meeting strict criteria complete a real life test requiring them to live in their acquired gender (including within the workplace) for a minimum period of two years. Transgender employees often experience bullying and harassment. The lack of understanding of the condition means that many people associate gender dysphoria with sexual orientation. We should not confuse these two areas. Transsexual people identify with the same range of sexual orientations as everyone else. Successful gender reassignment depend not only on the medical success of treatments, but more crucially on the psychological adjustment of the individual. Successful acceptance within their acquired gender particularly in the workplace plays a vital role in the overall success of gender reassignment therefore; we each, as managers and colleagues have a key role to play in the success of gender reassignment particularly during transition.
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2, Supporting a colleague through Gender Reassignment Upon diagnosis of gender dysphoria a transgender person is immediately protected under the Sex Discrimination (Gender Reassignment) Regulations 1999, with regards to employment and vocational training. Any information regarding gender history or gender transition is protected and it is a criminal offence and breach of employer/ employee confidentiality to disclose any information regarding a transsexual person’s birth gender or any element of their gender reassignment without their explicit consent. Once we are informed by an employee that they intend to undergo gender reassignment, it is important that the issue is discussed and support received from HR, and that the individual is involved in these conversations. The transition process needs to be discussed and agreed with the individual to determine support needed and any anticipated problems or issues which could arise throughout the gender reassignment process. Organisations such as the Gender Trust Organisation can play a vital part in raising awareness among colleagues and helping all parties prepare for the transition period. Appropriate communication methods to be used throughout the process must also be discussed and agreed. Key factors for consideration could be: The anticipated point in time of change of name, personal details and social gender Whether the employee wishes to stay in their current post or be redeployed. Redeployment should only be pursued if it is in line with the wishes of the employee or a genuine occupational qualification as referred to in the Sex Discrimination (Gender Reassignment) Regulations 1999 exists. This must be discussed with HR, and redeployment is not to be considered an automatic part of the transition process. The expected timescale for medical appointments, treatments and surgical procedures and how provision of time for such is made Amendments to records and systems to take account of the change of personal details When and how colleagues should be informed – the employee should decide who performs this task – we should discuss with the individual and colleagues around them whether any training in gender identity issues is needed. The Gender Trust can give details of people qualified to provide such training. Given the nature of the subject, we should favour this over ‘in house’ training delivered by an equality specialist. Who needs to be informed, it maybe wise to include a wider range of people than immediate colleagues to limit idle gossip and prevent incorrect information being communicated. Again, there are complex issues around disclosure and a specific requirement for the individual consent. The individual absolutely must be centrally involved in these conversations and decisions. How to handle any harassment or hostile reaction or media interest
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Agreement as to when the transsexual employee should begin using sanitary facilities such as toilets or changing facilities. It is unreasonable for a person living in an acquired gender to continue to use f acilities for their birth gender. It is also unreasonable to insist on a transsexual person using segregated facilities (e.g. an accessible toilet designed for disabled users) for any real length of time. This option is however reasonable if used for a short time in the early stages of transition. An appropriate time could be in line with the start of the real life test. Consideration needs to be given (if applicable) to dress code. Dress code can form part of an employment contract, if so, the moment the transsexual person changes their legal name and begins the real life test, they should be allowed to fully conform to the dress code of the acquired gender. Not to do so would inhibit their transition and be discriminatory.
Gender reassignment is still rare and cases often generate a lot of attention including media attention, it is essential that press departments or any employee aware of an individual’s identity does not under any circumstances reveal any information about the individual. Where the press are aware of a transsexual person’s identity, any correspondence or publication of information should be in line with the wishes of the individual concerned. 3, Communicating to colleagues Deciding how best to inform colleagues of the employee’s intention to undergo gender reassignment or start the real life test needs to be discussed and agreed with the employee prior to any information being communicated. There must be joint agreement regarding who needs to be made aware and how the information is communicated. Planned and effective communication can reduce ill informed gossip and additional stress to the individual. A proven successful format is an initial carefully worded written communication, perhaps email, from either the individual or Line Manager with the individual’s input and approval, to colleagues outlining the basic information, including date from which the person’s identity will officially change, change of name and to also provide further general information to help other people to understand gender dysphoria and the gender reassignment process. It is important we stress to colleagues the need to be sensitive and discreet allowing the transitioning employee to have control over what information is communicated and how details are communicated to other people for example customers, external contacts and stakeholders. 4, Managing employee data and information Whilst it is imperative that information regarding the birth gender is held in the strictest of confidence, we may wish to advise the transitioning employee to make contact with their pension provider to ensure that records are updated to reflect name and gender change, as until a Gender Recognition Certificate is issued all pension documentation and calculations will be on the basis of birth sex rather
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than acquired sex. Arrangements can be made to ensure that all correspondence and communications are addressed to the person in their acquired gender. At the time of transition to their acquired gender it is common for the transgender person to take leave from work to complete necessary personal changes e.g. legal change of name, change of bank details etc. During this leave period, we should ensure that all workplace records and IT systems are appropriately amended. Failure to accurately update records can cause distress to the individual, as they are often then required to repeatedly explain themselves and their history. Good practice would be to go through in detail with the employee prior to transition all areas where updating will be required, e.g. system login details, HR records. Normal standard sickness absence arrangements apply for the purpose of hospital and doctors appointments and time for post operative recovery. 5, Returning to work –The Real Life Test Consideration should be given to the employee’s first day back in the workplace. It is important that management adequately prepare for the employee’s return. Line Managers may wish to arrange an informal lunch meeting with colleagues away from the workplace prior to the return to work as this may make for a more comfortable return to work for the individual and other team members. Following the initial return to work, it is good practice to monitor the environment within which the employee is working, enabling early detection of any hostility or harassment. Informal discussions with the employee can be useful in monitoring the working environment. A successful return to work can be achieved through adequate planning and open communication with the team, ensuring that all employees have an understanding of the gender dysphoria and the gender reassignment process and how the transsexual employee wishes to be addressed and treated. We should remind the individual of services available through the Employee Assistance Programme, and that they may find this helpful on their return to work. 6, The next step Upon completion of the real life test, the transsexual person can then apply for a Gender Recognition Certificate, giving them the same rights as a non transsexual person in terms of pension rights and benefits. Individuals may also choose to undergo reconstructive surgery. The Sex Discrimination (Gender Reassignment) Regulations 1999 do not specify a minimum or maximum time which should be allowed for a person undergoing medical and/or surgical treatment related to the process of gender reassignment. However an employer must not treat any less favourably a person absent while undergoing gender reassignment than he or she treats, or would treat, a person absent due to illness or to some other cause. Leave for the employee to undergo surgery should be accounted for as any other sickness absence, including sufficient time for post operative recovery and the option for a phased return to work. Where absence is prolonged due to complications and illness long term sickness procedures should be followed.
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The return to work following surgery could follow a similar format to that at the start of the real life test, with an informal lunch meeting to enable the transsexual employee and close colleagues to feel comfortable with the change of appearance and to continue to have a good working relationship. In addition to this, standard return to work procedures should be followed for example, a return to work interview. We should continue to monitor the work environment to ensure that the individual has settled back into the team.
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7, References Equal Opportunities Commission Checklist http://www.eoc.org.uk/PDF/gender_reassignment_checklist.pdf The Gender Trust The LSC are a member of the Gender Trust who will be able to provide free advice and guidance to employees http://www.gendertrust.org.uk/
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Appendix 1 Legislation Overview There is growing legislation in the area of Gender Reassignment, which is designed to protect the transsexual person from discrimination and harassment. The legislation can however provide much guidance and support for managers who are supporting employees through the gender reassignment process. Summaries of the legislation and links to further information are detailed below. Sex Discrimination Act (Gender Reassignment) Regulations 1999 and GOQs The act has been extended to cover those through all stages of gender reassignment. All elements of employment are included within these regulations for example; sickness absence for medical appointments in relation to the gender reassignment process. Although in many cases the sex of an employee is not a requirement there are certain position where the sex of a worker is a Genuine Occupational Qualification in situations of privacy and decency, for example a female counsellor in a rape crisis centre. If the transition of the employee is going to mean they are unable to fulfil their role, redeployment into another suitable role should be investigated and fully discussed with the employee. Gender Recognition Act 2004 The Gender Recognition Act provides legal recognition for people who have had or have gender dysphoria. To achieve legal recognition the person must have lived in their acquired gender for a minimum of two years and satisfy other requirements as laid down by the Act, including an appropriate history of medical treatment, an affidavit from the individual swearing that this change is permanent, their not being married or civilly partnered, and having their application scrutinised by a Gender Recognitions Panel. The legal recognition follows the issue of a Gender Recognition Certificate and recognises the person legally in their acquired gender as if it was their birth gender, for example for the purposes of pension arrangements and in the issue of a new birth certificate in their acquired gender. A key element of the Gender Recognition Act is that it protects the privacy of transsexual people. Section 22 states that it is a criminal offence punishable by a fine not exceeding Level 5 on the standard scale (presently £5,000) to disclose information acquired about a persons’ gender history as this information is protected information under the Gender Recognition Act. Managers must be aware that disclosure of any information is an offence and ensure that employees who are aware of an individual’s transition understand that it is a criminal offence to disclose any gender information regardless of reason. Penalties for such disclosure can be as much as £5000.
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Equality Act 2006 and Gender Equality Duty The Equality Act and Gender Equality Duty states that, it is unlawful to discriminate on the ground of sex and includes discrimination on the grounds of gender reassignment in employment and vocational training. With effect from December 2007 it will also become unlawful to discriminate against transsexual people in the provision of goods, facilities and services.
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