There has been a lot of publicity (and heated debate) about the rights of transgender people and access to single-sex spaces. How would you handle a situation where someone is transitioning at work? How do you balance strongly held but opposing views, and the rights of each group?
This can be a particularly sensitive and emotive topic. Many transgender people have been on a difficult journey, battling the internal incongruity between their biological sex characteristics and their gender identity, as well as the discrimination arising from the prejudices and stigmas within society. Some voices in the trans community advocate for treating gender identity and sex as the same thing (e.g. "a trans-woman is a woman").
There are also strong voices within the feminist movement who are concerned that gender-identity politics are affecting the definition of "woman" and who is able to access single-sex spaces & services. They argue that biological sex and gender identity are not the same thing, and that trying to force-fit them together threatens women's fragile gains in a historically male-dominated society.
The majority of the public debate has been focused on male-to-female transsexuals and their access to women-only spaces and services. However, it is important to remember that there are also female-to-male transsexuals with the same rights and concerns.
This article is not intended to advocate for or against either position. Instead, we're going to look at how you might handle a situation where one of your staff is transitioning against the backdrop of this debate.
Transitioning can be a different experience for different people, so your support will need to be tailored to the individual. Here are a few things you can do to support a worker who has either started, or completed, a gender transition.
The above is not an exhaustive list, but should give you a good starting point.
The Equality Act 2010 defines nine "protected characteristics". It is unlawful to discriminate against someone on the basis of any of these nine characteristics.
Two of these characteristics are "sex" and "gender reassignment".
Many people use the terms "sex" and "gender" interchangeably. So what is the difference between these two characteristics?
The Act defines "sex" as biological sex, a binary state of being either a man (male) or a woman (female). There is no spectrum in-between, you're either one or the other.
However, gender identity can exist on a spectrum. The individual's mental identity may differ from their biological sex characteristics. They could be opposite (e.g. male biology, female identity) or somewhere in-between (e.g. a "non-binary" person who doesn't align with either male or female identities).
The Act therefore defines "gender reassignment" as anyone who changes their biological sex characteristics or attributes. This can include both medical interventions or simply changes to outward appearance.
Under the Act, your legal sex is your biological sex, irrespective of your gender identity. However, you can realign your legal sex with your gender identity with a Gender Recognition Certificate (GRC). For example, if someone has transitioned from male to female and holds a GRC, both their gender identity and legal sex will be female.
One of the challenges you may face when a worker transitions is their access to single-sex spaces. In most workplaces, this means the toilet facilities of the other sex.
It is lawful to exclude someone from a single sex space, if they are of the opposite biological sex. That's not the problem.
The issue is whether it has to be a single sex space in the first place.
Are there reasonable concerns about people of different sexes being in the same space, and is excluding one sex from that space the most reasonable way to address those concerns?
In legal speak, we call this a "proportionate means of achieving a legitimate aim".
Common reasons given for a single-sex space are privacy, dignity or safety. Many people would assume that a gents or ladies toilet should be a single-sex space for one or more of those reasons.
However, it's not quite that black and white. The reasonableness of the concerns needs to be evaluated. For example:
This list is not exhaustive, there may be other considerations. In practice, the test of "reasonableness" will always have an element of subjectivity to it.
Whether there is a conflict over access to a single-sex space depends a lot on the attitudes and disposition of the people involved.
It may be possible to avoid conflict altogether, by offering gender-neutral spaces that anyone can use. This, of course, assumes there is the scope to physically construct such facilities within the premises.
It is also possible that the groups involved might be quite tolerant and understanding, especially where the individuals are known to each other. For example, it may be easier for colleagues to accept a transitioning worker in their toilet because the individual is someone they know, rather than a random member of the public.
However, it is possible that you find yourself caught between vehemently opposed points of view; for example the "all trans-women are women" vs "gender and sex are different" viewpoints. How would you deal with that?
Unfortunately, people tend to think that their rights are absolute and inviolable. However, that's not true.
It is possible for the rights and protections afforded to one group to come into conflict with the rights and protections afforded to another. The gender versus sex issue is an example of when this can happen.
You cannot have a hierarchy of rights, where the rights of person x are subordinate to the rights of person y. Such a sweeping, general policy would create terrible injustices and undermine the whole point of having rights and protections at all.
Unfortunately, equality law is not clear on the situational treatment of gender vs sex, and there are very few case law precedents. Each situation needs to be carefully evaluated and handled on a case-by-case basis, and you will have to do the same; investigate the situation, listen to the views and concerns of the parties involved, and do your best to come to a justified decision.
If you can show that maintaining a single-sex space and denying access to a trans person is a "proportionate means of achieving a legitimate aim", then that is the decision you should make.
However, that will not prevent your decision from being legally challenged. You may have to justify to an employment tribunal why you considered it reasonable to prevent a trans person from using a closed stall in a single-sex toilet.
If there is already a separate facility for people with disabilities, e.g. an accessible toilet, these are often smaller, unisex facilities. You may be tempted to suggest that the trans-person should use the accessible toilet instead of either the gents or ladies. Please do not make this suggestion.
Being transgender is not a disability, and trans persons should not be treated as disabled by default.
Gender dysphoria is not a mental illness and so a diagnosis of gender dysphoria would not automatically qualify as a disability. However, mental health issues associated with that dysphoria may be.
Further, it is not appropriate for non-disabled people to use a facility intended for the disabled, potentially preventing a disabled person from accessing it when they need to. This is no better than parking in a disabled parking bay when you have no disability.
There will be some people who are uncomfortable with the idea that a trans person might be in the cubicle next to them. That discomfort does not, in itself, justify excluding the trans person from that space.
As we mentioned earlier, an employer can provide a separate, gender-neutral facility. However, this should be open to anyone who wants to use it, and the employer should not insist on only the trans person using it.
Therefore, providing a gender neutral space won't solve the problem if the trans person is unwilling to use it.
Also, a unisex toilet should ideally be a self-contained, private room with a lockable door. The problem is that this requires a lot more space, as each 'private toilet' would be a single occupancy room.
In August 2023, the government announced plans to introduce legislation to ban gender neutral toilets in new buildings, unless the space is so restricted that a single room, private toilet would be appropriate.
In existing buildings, employers should careful about converting a single-sex toilet into a gender neutral toilet. The gender neutral facility would need sufficient privacy for mixed sex users, which requires a lot more than just changing the sign on the door! Also, it may not be reasonable to just change the facilities for one sex to be gender neutral. For example, converting the women's space to be gender neutral, but not the men's, would invite a complaint from women. Why should men have a single-sex space, but not women?
Broadly speaking, transphobia is where someone dislikes or is prejudiced against trans people simply on the basis of their transgender identity.
Examples of transphobic behaviours include creating a hostile or intimidating environment for trans people, abuse or harassment of trans people, excluding trans people from discussions that directly affect them, or disadvantaging them in pay and career decisions on the basis of their trans identity.
We should recognise that someone who holds transphobic views will often use privacy, dignity or safety arguments as a smokescreen for their prejudices. That does not mean those arguments are invalid, but they may be exaggerated to satisfy a transphobic agenda.
However, someone with 'gender critical' views should not be considered transphobic just because they hold those views. An example of a gender critical viewpoint would be that gender identity and biological sex are distinct and separate characteristics, i.e. that a biological male will remain a biological male irrespective of how they modify their appearance or choose to identify.
Gender critical views have been ruled as a protected 'philosophical belief' under the Equality Act 2010 and people are entitled to express differing opinions, even if others find those opinions objectionable. Articles 9 and 10 of the European Convention on Human Rights also protect freedom of thought and expression.
However, while holding and expressing an opinion may be protected, imposing your opinion on others would not be.
For example, deliberately misgendering a trans person or using someone's pre-transition name ('deadnaming') out of spite would cross the line into harassment. When it comes to beliefs and opinions, it's okay to attack an argument, but never okay to attack the person.
Employers must not discipline workers for holding or expressing gender critical views. It only becomes a disciplinary matter if they harass or discriminate against trans people, or create an environment which is hostile or discriminatory to trans people.
Typically, people would use their observation of a person's appearance to non-consciously select the appropriate pronoun when addressing them.
The human brain performs an enormous amount of non-conscious processing, which includes facial expression and gender characteristic processing. You don't consciously choose to perceive someone as male or female, that categorisation is performed via non-conscious mental processes.
For trans persons that still retain enough visible gender attributes of their biological sex (i.e. they don't convincingly 'pass' as their gender identity), these non-conscious processes often cause them to be misgendered by third party observers.
This is why preferred pronouns are especially valuable to trans people, as they can help others avoid accidentally misgendering them.
However, these non-conscious processes are well-ingrained after eons of evolution, and so it can take considerable conscious effort to override them. Accidental misgendering will still occur from time to time, so it's important not to have a hair-trigger sensitivity if occasionally someone gets it wrong.
In an attempt to show solidarity with the LGBTQ+ community, some organisations have tried to mandate that all workers publish their preferred pronouns in their emails and on their profiles, etc.
Enforcing such a mandate would be problematic. An employer can ask that staff publish their preferred pronouns, but cannot lawfully insist upon it.
One right that everyone shares is the right to be treated with dignity and respect at work. This includes trans people. Nobody should be subjected to bullying or harassment.
Bullying is behaviour that is malicious, offensive and intended to leave you feeling emotionally distressed, intimidated or humiliated.
Harassment can be similar to bullying but is related to a protected characteristic, one of which is 'gender reassignment'.
Harassment can come in many forms and isn't just limited to physical contact. For example:
The intent of the harasser is irrelevant. Harassment is still harassment, even if the person doing it claims they didn’t mean it, or "it was just a joke".
Sexual harassment is unwanted behaviour of a sexual nature which violates your dignity, makes you feel intimidated, degraded or humiliated and creates a hostile or offensive environment.
Again, trans people are sometimes prone to sexual harassment. For example, comments about what sexual activity the trans person engages in, inappropriate and unwelcome touching, and so on.
Trans people can often be victims of harassment, and it's important for employers to be vigilant if someone is going through a transition at work.
Everyone should be treated with dignity and respect.
There is no 'one size fits all' formula you can follow. You may need to consider each situation on its individual merits, taking into account the rights, needs and interests of the parties involved.
The rights of any one group are neither superior nor subordinate to those of any other group.
You should take all reasonable steps to ensure that someone going through a transition, wherever they may be on that journey, does not experience discrimination or harassment.
It may be lawful to exclude a trans person from a single sex space, provided that it is a 'proportionate means of achieving a legitimate aim'.
Those with 'gender critical' views are entitled to hold and express their views, provided that, in doing so, they do not discriminate or harass a trans person.
