“When I came out to my employers as transgender they couldn’t cope. There was a complete lack of understanding. I lost my senior management position, agreeing constructive dismissal. I knew then, as I was pondering transition, that it would be difficult to find employment, so suddenly I was faced with the question of what to do to keep a roof over my family’s heads.”
This personal account, told to HR magazine by secretary of the Parliamentary Forum on Gender Identity and founder of Trans Media Watch Helen Belcher, isn’t unique. And such instances barely go recorded let alone reprimanded. In fact, discrimination, bias and gross misunderstandings are part and parcel of the issues transgender and non-binary employees face.
To categorise transgender and non-binary together can be part of the problem. The whole point of transitioning from one gender to another is, after all, to still be classified in a binary way.
But experts point to these individuals facing a similar set of challenges in workplaces not attuned to gender as more complex than what someone was ‘born with’. And there are a similar set of solutions HR can deploy to tackle these challenges.
Recruitment is, for many, the first hurdle, with a staggering one third of employers less likely to hire someone who is transgender (and a baffling 43% ‘unsure’), according to a report by Crossland Employment Solicitors. Meanwhile, one in eight transgender employees were physically attacked by customers or colleagues in the past year, a Stonewall survey noted in January.
So shocking is the discrimination many face that in 2017 a British transgender woman was granted residency in New Zealand on the grounds that it would be “unduly harsh” for her to return to the UK.
This all makes for shocking reading. But some progress is being made. While asserting that the T in LGBT+ is still often neglected in organisations’ D&I strategies, programmes officer for Stonewall Scotland Phillippa Scrafton does see some change on the horizon. “I don’t remember there ever being such a narrative as there is now,” she says.
In part this narrative is building following the government’s Summer launch of its consultation on reforming the Gender Recognition Act, which many hope will see the process of gaining legal recognition of their acquired gender easier. It’s something Scrafton cites as a “good opportunity for organisations to understand more” and ensure their work environments are inclusive to transgender employees.
But employers must acknowledge that HR is itself part of the problem. As Scrafton points out, traditional HR policies and processes often fuel a lack of trans inclusivity in the workplace. “I remember 10 years ago, you’d have to tick which box you were on a form out of heterosexual, lesbian, gay or transgender. Three of those are sexuality and one is gender identity so they aren’t the same thing,” she explains. “There has been a move forwards but there is a long way to go for HR systems to deal with the changing gender marker.”
Employee records and documentation of names during onboarding can pose another hurdle. But it needn’t be a bureaucratic nightmare, says Belcher. “There’s confusion around what’s legal and what isn’t in terms of things like names and gender,” she explains. “There’s no such thing in English law as a legal name. You can call yourself anything you want as long as there’s no intention to defraud. So while employers get hung up on paperwork it’s actually for their convenience rather than being a legal requirement.”
However, dispensing with paperwork isn’t so straightforward for non-binary employees. For example, HMRC doesn’t recognise non-binary people, which by default can trigger a lack of recognition from HR within the payroll process.
For Beverley Sunderland, managing director of Crossland Employment Solicitors, the most pertinent HR issue is that many functions still run off the back of outdated equal opportunities policies put in place long before the Equality Act was introduced, which then included gender reassignment as a protected characteristic.
Take the case involving Primark this year. A tribunal ruled that a transgender employee had been subjected to gender reassignment discrimination. Primark received recommendations that it adopt a written policy around dealing with transgender staff or those wishing to undergo gender reassignment, and to make references to transgender discrimination in its employee equality training materials.
“What I think happened here is that, because the Equality Act only came in in 2010, lots of employers have equal opportunity policies still in existence that don’t reflect all the protected characteristics. They include things people remember like race, but they don’t reference transgender employees and they absolutely should,” says Sunderland.
Clearly policies play a big part in creating a trans-inclusive work environment. And these can come in many forms, from ‘transitioning at work’ policies to support staff intending to undergo gender transition, to zero-tolerance policies on transphobic harassment.
These are some of the things already on the agenda at law firm Pinsent Masons (which features on Stonewall’s Top Trans-Inclusive Employers 2018 list). It has adopted a transgender equality policy, has added the prefix Mx alongside titles such as Ms and Mr on employee forms (removing titles altogether on many documents), and has taken a fine-tooth comb to the language used in its existing workplace policies. As the firm’s head of responsible business Kate Fergusson explains, it’s about “looking at all the processes and policies we have in place and making sure they’re all inclusive from a gender identity and expression perspective”.
Other practical steps some businesses are rolling out include non-gendered uniform policies. “If your firm has a uniform policy – firstly, why? Policies should be about making sure people are presentable, not making people fit preconceived norms,” says Belcher. “There’s an assumption in a lot of company processes that gender is immovable. Then if an employee wants to change gender it suddenly breaks a whole load of stuff like dress codes.”
It’s a similar issue – and a recurring theme that cropped up in all conversations for this piece – with gender-specific toilets and changing facilities. “You get a bunch of people saying they’re afraid of letting a transgender person into the women’s or men’s toilets, and these fears are groundless. But it means there’s been a tendency for businesses to tell transgender employees to use the disabled toilets, which singles the person out and adds stress,” says Belcher. To root out discrimination of this kind she points to the rollout of gender-neutral toilets, which “we have in planes and trains and homes so why not workplaces?”
Pinsent Masons provides both gender-neutral and gender-specific toilets for its employees. “From a cultural perspective there may be a need to still have some gender-specific toilets,” says Fergusson. “We have to take a considered view of all employees and become more inclusive to transgender employees, but also make sure we have facilities that cater to all.”
These practical steps to better support transgender and non-binary employees are just one part of the picture though. To create a truly inclusive workplace, Scrafton reports that it should be “50/50” between the provision of practical support for transgender employees and educating the rest of the workforce.
It’s a sentiment shared by Tina Drury, managing director of Your Homes Newcastle, a housing management association also ranked on Stonewall’s list.
“It’s a combination of the two as the culture of the organisation needs to ensure behaviour that discriminates or prejudices others isn’t tolerated,” she says.
The firm has made online training mandatory for all staff and new starters. “It isn’t a comfortable module as it exposes unconscious bias, but it raises awareness as soon as people come on board,” explains Alizon Carr, operational HR, lead specialist for Newcastle City Council, who worked with Drury on this.
“We take this training as seriously as we do mandatory health and safety training or safeguarding training.”
For law firm Bryan Cave Leighton Paisner (BCLP), also on Stonewall’s list, training and education must begin within the HR team itself. The firm groups HR’s role in this agenda into the three buckets of policy, training and education, and broader awareness. BCLP’s head of diversity and inclusion Justine Thompson explains how the second bucket has involved running masterclasses specifically for the HR team.
“HR is the hub of the organisation and the team that line managers and individuals come to for advice around people-related issues, so an individual wanting to transition will either come to HR or to their line manager, who then speaks to HR,” she says. “So we need the training and confidence to take the lead on this.”
To avoid any risk of simply paying lip service, Thompson advises HR to engage with its organisation’s LGBT+ forum or taskforce to ensure any proposals or changes are led by this community. Joanne Lockwood, founder and CEO of D&I practice SEE Change Happen, agrees: “It shouldn’t be about pinkwashing or tick-boxing.”
What it should be about, believes Carr, is accepting that mistakes may be made along the way.
“People are nervous about making mistakes or using the wrong language, but the important thing is acknowledging when you make a mistake and learning from it. It’s OK to be nervous about having these conversations – we roleplay with managers sometimes to help them learn the right language for conversations. But what is not OK is just not addressing a situation or catering to the potential needs of an employee,” she says.
Education around language is nonetheless critical, asserts Lockwood, as repeated use of the wrong name or pronoun can cause anxiety for the transgender or non-binary employee. But the most important thing is to not “treat the first trans person in your business as the educator”, she says. “Organisations need to get ahead of the curve – don’t wait for an employee to come to you to say ‘Hi, I’m trans’ or ‘I want to transition’ to put in place processes, policies and training.”
This has been very much Pinsent Masons’ approach. The fact the firm has no openly transgender employees hasn’t stopped the team being proactive. With an estimated 1% of the population transgender, it’s unlikely there aren’t any trans people at the firm. So it’s about being ready for the day when an employee does want to ‘come out’.
“At some stage we will have someone who comes to us who wants to transition in the workplace, or we will recruit someone who has a different gender identity to the one they were assigned at birth. And we will be in a much better place to make sure they are supported and included and that they feel safe talking about their gender identity,” says Fergusson. “We’re all still at the very early stage of this and it’s not perfect. But we need to do everything we can to create a truly diverse and inclusive workplace.”
There will always be more work to do. But the organisations leading the way won’t just benefit from reputation-enhancing recognition and awards for being an inclusive employer. As Belcher puts it: “If you think about all the challenges a transgender individual has faced to get to that point – having to navigate the world, face hostile questions, and become very self-aware – that person is likely to be a strong employee for many roles and organisations.”