New HR obligations for transsexual people

Social attitudes have changed considerably since the European Court imposed the first employment protection for transsexual people. This protection came into effect in UK law in 1999 with the Sex Discrimination (Gender Reassignment) Regulations, but many 'trans' people, as the government now calls us, continue to experience problems in their places of work, writes Stephen Whittle.

The Gender Recognition Act (GRA), which came into force on 4 April, should help to change attitudes.

The Gender Recognition Act 2004 enables trans people to apply for 'gender recognition' and those born in the UK can obtain a new birth certificate. To qualify, a trans person has to show that:

• They have been diagnosed as having gender dysphoria, or
• They have had gender reassignment surgery, and
• They have lived in their acquired gender role for two years, and
• They intend to do so permanently for the remainder of their life.

Gender recognition will mean that trans people must be treated as of their new sex for all legal purposes, including in the workplace.

Criminal offence

The Women and Equality Unit of the Department of Trade and Industry has produced new guidelines for employers¹ which address many of the legal questions, but HR officers on the ground will have to deal with the day-to-day practical issues. As yet, very few employers have worked out the implications of the Act for their companies. Of great importance is section 22 of the GRA.

This makes it a crime, with a fine of up to £5,000 on conviction, for any individual who has obtained the information in an official capacity to disclose that a person has a gender recognition certificate. This includes

• Employers or prospective employers, or
• A person employed by such an employer or prospective employer

It is a strict liability offence so there is no room for pleading 'reasonableness' as a defence.

Birth certificates

HR departments may well not know whether they have trans employees. Even before the GRA, many trans people who look good in their new gender would keep their status private. Apart from our birth certificates, we have been able to change other documentation for many years.

The most likely point of discovery was at the time of entry to compulsory superannuation schemes, but many trans people would simply claim to have lost their birth certificate and often their passports were accepted as proof of identity.

The new obligations on employers to see birth certificates, which came into force last year, means this is no longer possible but there are trans people who have been in jobs, for some time, where no one knows their history.

Equally though, there are many known trans people in the workforce. Some disclosed their status on entry; others changed gender 'on the job'. Research and case law has shown that the workplace has often been an unhappy environment for many trans people who have faced discrimination and harassment.

The GRA, unfortunately, will not stop prejudice but its very existence and the awareness it will generate should bring change. We have already seen a very large drop in the number of employment complaints being brought to Press for Change, the transsexual campaign group.

Privacy obligations

I have a suspicion that many HR officers have not quite understood the GRA, but their misunderstanding is really benefiting trans people.

Even though, as yet, no gender recognition certificates have yet been awarded, there is an acceptance that trans people must be supported effectively by personnel staff and rightly so, as the legal obligations which will come into force will put quite rigorous demands on HR departments.

To simply understand your obligations, it is probably easiest to think of two types of trans employees: those whose history is known and who join the workplace showing a birth certificate with their old gender on it; and those who come into the workplace with a birth certificate showing their new gender.

The second group is comparatively easy. You probably will not know their trans status, except so far as some people will be visibly trans (not everyone gets to 'pass' no matter what treatment they have had). These people must be recorded and treated in their new sex for all purposes, including pensions, and any suspicions you might have should be kept entirely to yourself.

There might be occasions when a new employee with a gender recognition certificate has to tell you their history, for example, if they were born overseas and cannot obtain a new birth certificate. Even if they tell you their past, it is not for recording.

In transition

You may well have other employees who have not yet met the legal requirements to obtain gender recognition. Remember, they do need to have lived in their acquired gender for at least two years and have met various other criteria. These may already be in their new gender when they start or they could be those who have changed gender in the workplace.

For both there will probably be records of their former sex and, in some cases, name. It would be good practice to minimise the extent to which this information is known and to maximise its privacy. Tell the trans person of your intention to keep this information as private as possible and I would also recommend that they are given a named contact person so that when they do obtain a gender recognition certificate you are able to provide a confidential and swift process of changing records.

This will be particularly important for your current trans employees who are going to be using the GRA to obtain gender recognition certificates over the next year or so and who will be contacting you and asking for their records to be changed. Some of these (such as myself) will have been in their job for many years. Our history is known but has often, effectively, been forgotten.

Records requirements

As soon as the request for the records to change occurs, the legal requirements of the GRA come into force including the restrictions on disclosure. If you are not a sole personnel officer, but work for a large employer this could put you in a difficult situation.

There may well be 'distant' records which need to be found and changed. The first person who is given this information cannot disclose, even to a line manager, in a way which identifies the trans person involved without getting their express consent to do so.

You can discuss the case hypothetically, but it would be a very good idea for HR departments to have a standard consent form for the trans person to read which explains why more than one person might need to know their identity, and which acknowledges that any staff member who is informed will also be told of the legal consequences of further disclosure.

You should then list who will need to know and ask the trans person to sign their consent to this. If they refuse consent, and there is no obligation for them to do so, you may be in a difficult situation and need to spend some time explaining the employer's complex working. Either that or do a lot of leg work yourself to find and change the records.

The legal obligations are quite clear, and any disclosure without consent can result in conviction.

HR staff will need to put time aside, firstly to dig up what may be very old records and then to update them and to dispose of any details which might disclose that the employee had a former name or gender.

The only possible circumstances in which the records might need to be retained will be for those few pension providers who will want to record contributions in both sexes. But don't assume that that will be the case and do contact the pension trustees. Many providers have made informal decisions to use their discretion to treat trans people as of their new sex for their pension lifetime.

If you do have to keep the records, then you will have to make sure they are well and truly secured.

Personal experience

I have applied for my gender recognition certificate, but before the legal restrictions come into place I asked my employer to find what records they have on me. Even though my recent employment started in the early 1990s, I was employed with the same company, in another capacity, during the period of my transition in the mid 1970s - so they probably have records of my old name and gender. My personnel officer looked rather green at the prospect of finding them though she is certain they still exist, somewhere!

Personnel records could turn out to be a minefield in the future for employers with trans employees. Any loose ends left in the files could be the basis of an offence every time a new person is employed in a HR department. The Freedom of Information and Data Protection Acts have put the onus on HR departments to audit the records. The Gender Recognition Act is now a new reason to do so.

Terms explained

According to Press for Change, transsexual people are those who seek medical treatment to help them to match the gender they feel they have. Transgender people is an umbrella term used to encompass a range of people in the community including people who occasionally cross dress.

Press for Change says, each year, 300 new patients have gender reassignment surgery in the UK. Currently up to 6,000 people are living permanently in their new role.

Within the next two years, the organisation expects up 5,000 people to apply for gender recognition.

Stephen Whittle is Reader in Law at Manchester Metropolitan University, and vice-president of Press for Change, the UK's campaign group for transsexual and transgender people.