19 July 2016
Treating transgender people with dignity
Recommendations from Jersey’s Employment and Discrimination Tribunal 2016
On 20 May, Jersey’s Employment and Discrimination Tribunal ruled that, when using an organisation's toilet facilities, the needs of transgender people must be met appropriately.
The ruling follows a case brought against a Jersey-based company by a transgender woman who believed that she had been directly discriminated against because of her gender reassignment. She also believed she had directly or indirectly been discriminated against because the company had applied a provision, criterion or practice, which was also discriminatory.
Although the company stated that there had been a “non-intentional and non-malicious act of discrimination” in their advice as to the use of its toilet facilities, the tribunal found that the complaints of discrimination were well founded.
The ruling serves as a reminder for organisations in Jersey, Guernsey and the UK that the needs and expectations of individuals – whether they be customers, suppliers or employees – are met, regardless of their sex, marital status, sexual orientation or gender reassignment. Not doing so can, and does, result in severe damage to an organisation’s reputation, not to mention a significant dent in finances when going through tribunal.
The recommendations from the ruling, including the use of appropriate signage for facilities, also serve as good practice in how to treat transgender people with respect – more about recommendations overleaf.
But the first step to meeting the rights of individuals is understanding your obligations within the law.
Staying on the right side of the law
In September 2015, a second protected characteristic of sex discrimination was added to Discrimination (Jersey) Law 2013, and now covers all forms sexual discrimination – sex, marriage & civil partnership, sexual orientation, pregnancy & maternity and gender reassignment.
Within the workplace, the general rule is that you should treat transgender people in the same way as you would treat anyone else. In most cases this means that you should treat transgender people in the way they wish to be treated. In other words, if they want you to treat them as the opposite gender to their birth gender then that is what you should do.
To ensure this is put into practice, the law requires anti-discriminatory policies, practices and procedures be put in place to ensure that employees, suppliers and customers are treated fairly, equally, with respect and, importantly, that employees understand those policies and their personal responsibilities and liabilities.
This particular case is the first transgender discrimination case to be brought in Jersey and, along with the need for organisations to be fully conversant with the law, highlights the need for employees to fully understand what the term transgender means.
Treating transgender people with dignity
Gender reassignment – commonly known as transgender – is distinctly different from the term ‘sexual orientation’. The word ‘transgender’ focusses on gender identity and or expression, rather than sexual orientation.
Generally, transgender people identify with a gender other than the one they were assigned at birth. Using the proper pronoun – he or she – is therefore hugely important (it’s important to note that, if colleagues repeatedly fail to use the proper pronoun, this could be considered harassment). The correct pronoun will be the person’s preferred gender, if different from their birth certificate. Among employees, the best approach is to ask what they prefer – if, of course, they have made it known that they are transgender. It’s also important to use the employees preferred name and prefix e.g. Mr, Ms or Miss, which should then be used across all company documentation, including directories, websites and internal records.
Clarifying terminology, and using the correct forms of address, are crucial to ensuring transgender people are treated with sensitivity and respect, so it’s vital that this is included in an organisation’s workplace equality and diversity policy.
Jersey’s Employment and Discrimination Tribunal made the following recommendations as a result of this particular case, all of which are good practice for any organisation to follow when creating a legally compliant, inclusive and fair, organisational culture:
- Treat Transgender people the way they want to be treated
It is important you ask them how they wish to be treated and abide by their wishes. Check with them first, don’t make assumptions. They may wish to set an official date from which they will always be known in their preferred gender. It depends on the individual.
- Update Equality and Diversity Policies to include all forms of sex discrimination – including gender reassignment
HR Now also suggests that terminology is clearly defined as part of that policy, as mentioned in the previous section. Should an employee be going through gender transition, we advise developing a plan, including: a timeline for the transitioning employee’s personal milestones; written agreements regarding appearance, dress code and use of gender-specific facilities; and a main contact for the employee and colleagues to ask questions or raise any concerns. Being prepared is crucial, being open-minded is key.
- Put practices and procedures in place to ensure that staff understand how to treat everyone, from employees to customers and suppliers, with sensitivity, confidentiality and fairness and to address transgender people appropriately. Listen to and accommodate all staff’s concerns and fears.
- Provide suitable toilet facilities and signage within offices and publically available spaces so that everyone can use them without fear, humiliation or embarrassment.
HR Now’s view – we believe that allowing people to choose the gender-specific facility they feel is most appropriate is a good step towards respecting their individual right of choice. Using symbols rather than words to delineate male, female and disabled toilets may also help to reduce any perceived stigma. Whereas, creating a unisex bathroom may hinder a transgender person’s reintegration into the workplace as a new gender.
- Stop others harassing transgender people
It is management’s legal responsibility to make sure, to the best of their ability, that no-one, including transgender people, are harassed when working for their organisation. If other members of staff refuse to work with, be supervised by, or share toilets with transgender people, or if they harass them, call them names, or refuse to use their preferred name or gender, this would be transgender harassment and against the law. This means you need to set a standard of what is and what isn’t acceptable and professional work behaviour and educate all staff.
Of course, preventing discriminatory practices is far better than cure. So, as well as the recommendations above, it’s important for organisations to:
- implement a culture of equality, with leadership taking the lead
- train staff on what behaviours are appropriate, and which are not
- adopt a zero tolerance policy
- deal effectively with complaints
It is important to note that, under Jersey’s Discrimination Law, organisations are legally required to ensure staff understand their employers, and their personal, responsibilities under the law as well as how to apply best practice.
For a full list of immediate actions to take across Discrimination (Jersey) Law 2013 – including race, sex and age discrimination – see here.
Creating a legally compliant equality and diversity policy and ensuring employees put it into practice is the only way to ensure you protect your staff and your customers from discrimination – intended or otherwise – as well as keep your business out of court.
For more information on how to create or embed an equality and diversity policy, or about our discrimination e-learning package email Rachel Lucas or call us on 747559.
To download a printable copy of this advice guide, see below.