Transgender Inclusion in the Workplace

by Julie Galbraith, Partner, Head of Employment & Labour Law at Eversheds Sutherland LLP

Transgender Awareness Week is observed from 13 to 19 November every year, leading up to the Transgender Day of Remembrance on 20 November. A lack of awareness and understanding about gender identity and the specific issues trans people face in the workplace can lead to employers failing to effectively support trans employees.

In this article, we consider how Irish equality law treats discrimination claims by transgender employees and what employers can do to create a more inclusive and supportive working environment for their transgender employees.

Are trans employees protected in the workplace?

Trans employees are protected in the workplace under the Employment Equality Acts 1998 – 2015 (the “EEA”) and the Gender Recognition Act 2015. Additional protections for rights of transgender persons arise from the Work life Balance and Miscellaneous Provisions Act 2023 which extends maternity protections to transgender men.

Under the EEA, discrimination is prohibited on the basis of one of the nine grounds of discrimination. The question of whether the gender ground encompassed transgender was considered in the 2011 Equality Tribunal case of Hannon v First Direct Logistics Ltd [DEC S2011-066]. In Hannon the claimant argued that she was discriminated against and dismissed when she revealed her true gender identity. The Tribunal found in favour of the claimant and therefore helpfully clarified that the gender ground encompasses transgender under the EEA.

What’s happening in the UK?

In the case of Rose Taylor v Jaguar Land Rover Ltd (Case No 1304471/2018), the tribunal found that a gender fluid/non-binary employee was discriminated on the grounds of gender reassignment. Ms Taylor, who usually dressed in women’s clothing, was subjected to insults and abusive jokes at work and did not receive managerial support. Her claims for gender reassignment discrimination, harassment and victimisation were successful, and she was awarded £180,000 in compensation.

In the recent case of AB v Royal Borough of Kingston upon Thames (Case No:2303616/2021), the tribunal held that an employer which failed repeatedly to update its records to refer to the employee’s post-transition name (“deadnaming”) had subjected her to direct gender reassignment discrimination. Indeed, the tribunal found that despite the employer being given a number of months’ notice of her intended transition, the employee had suffered a “long and painful struggle” to change her name on the employer’s records and systems, a process which took over two years from her transition.

An employer’s trans-inclusion checklist:

• Training: Provide refresher training on gender diversity to educate the workforce and encourage employee engagement and awareness on the full scope of gender diversity and trans issues.
• Information and support services: Maintain open lines of communication with trans employees and ensure provision of support services for transitioning employees. Consider what reasonable accommodations can be made for employees who are transitioning.
• Language and terminology: Review language and terminology used in job advertisements, application forms, recruitment policies and internal company policies to ensure inclusivity and gender neutrality.
• The practicalities of your office and ways of working: Consider whether you need to consider dress codes, toilet facilities, door signs and email addresses.
• Gender neutral pronouns: Respect transgender employees by using their preferred pronouns, and encourage all staff to do the same.
• Workplace policies: Consider whether your current policies meet the requirements of your transgender employees and whether you need to develop specific policies e.g gender transition and gender identity and expression policies.
• Confidentiality: Remember that the trans status of an employee is sensitive personal information under GDPR and it is important to maintain an appropriate level of privacy.

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