DIVERSITY BRIEFINGS – GENDER ALIGNMENT

The Employer’s Perspective

Definitions

Gender

Gender is expressed in terms of masculinity and femininity. It is largely culturally determined and affects how people perceive themselves and how they expect others to behave.

Gender Identity

Gender identity is the gender to which one feels one belongs. It is the person’s internal perception and experience of their gender. Some people have a gender identity that is neither exactly male nor exactly female.

Gender Role

Gender role is the way that a person lives and interacts with others, based on their gender identity. It is worth noting that, for legal purposes, people can only be male or female.

Gender Dysphoria

Gender dysphoria is a recognised medical condition. The person suffers anxiety, uncertainty or persistently uncomfortable feelings about their birth gender. They may feel that their gender identity is different to their anatomical sex. This may lead to concerns about expressing their feelings and a fear of rejection that may lead to deep anxiety and possible chronic depression. A person with gender dysphoria may assume an identity in the opposite sex. This can involve hormone or sometimes surgical treatment to physically change their sex. However, surgery is not a pre-requisite of either transsexualism or for being recognised in the acquired gender.

Transgender

Transgender is a term used to include transsexuals, transvestites and crossdressers. A transgenderist can also be a person who transitions – sometimes with the help of surgery and/or hormone treatment – to live in the gender role of choice.

Gender Recognition Certificate

Under the new Gender Recognition Act 2004, a holder of a full Gender Recognition Certificate (GRC) is legally recognised in the acquired gender for all purposes. Thus, the person in question belongs to the opposite gender in both a legal and social context. A GRC will be issued to a person provided they satisfy all the criteria outlined in the Gender Recognition Act 2004. This is new legislation, so it will be some time before everyone who is likely to be granted a GRC will be able to receive them. The first applications are being accepted from January 2005 and the first GRCs will be issued from April 2005. In the first instance these will cover only fast track and overseas applications. People will be able to apply under the standard application process from July 2005, with the first of these being assessed by the Gender Recognition Panel in October 2005.

Disclosure

There is no legal obligation to disclose information to employers. However, until a person is eligible for and in receipt of, a Gender Recognition Certificate (GRC) certain difficulties could arise. This is particularly likely if the position applied for includes a company car, health insurance or a personal pension – in which case you will have to declare your status to the employer. Transsexual people can, however, obtain official documents such as a driving licence, passport or National Insurance card in the new name and gender although remaining legally of the sex recorded at birth. Due to the new legislation imminently coming into force it is worth keeping an eye on the resources section for relevant updates.

Specific Issues

Legislation

The Sex Discrimination Act

Since 1995 the Sex Discrimination Act (SDA) has applied to transsexuals. Legal protection commences from the time you make it known that you intend to undergo gender reassignment.

The SDA states that it is unlawful to make sex the grounds to treat anyone less favourably than others and prohibits the following:

• Discrimination on the grounds of gender
• Discrimination on the grounds of gender reassignment
• Discrimination against married people

It outlaws direct and indirect discrimination and victimisation. Direct sex discrimination is when one person is treated less favourably than another on the grounds of their sex. Indirect discrimination is less obvious. It can occur when an employer applies a requirement or policy, which appears to have nothing to do with gender but in practice has effects that disadvantage one sex. For example, a requirement for all applicants to be in excess of six feet tall would indirectly discriminate against women. To be considered discrimination it must be shown that the condition in question:

• Is applied equally to both sexes
• Limits the proportion of one sex who comply compared with the other
• Disadvantages an individual
• Cannot be objectively justified

The Act covers any type of selection for employment from recruitment to a new position, promotion with an existing employer or a transfer to another position. If an employee feels they have been treated unfairly they can complain to a tribunal within three months of the incident.

There are also Genuine Occupational Qualifications (GOQs) that apply only to transsexual people in certain types of employment. This may affect those intending to work in the police, a religious position or nursing – if you would be providing ‘personal services’ in the first three months of transition.

Since October 2002 the Criminal Records Bureau no longer reveals the medical history of an applicant. So, if you are entering a job requiring CRB clearance, make sure you contact the CRB beforehand to ensure that the correct procedures are followed to protect your privacy.

The Gender Recognition Act

The Gender Recognition Act 2004 permits full legal recognition of the new gender of a transsexual person after two years. A Gender Recognition Certificate (GRC) issued by the Gender Recognition Panel under the new legislation means the holder is legally recognised in the acquired gender for all purposes. Thus, the person in question belongs to the opposite gender in both a legal and social context. The new law will provide privacy for transsexual people. There will still be some limited circumstances – for example CRB clearance – where some disclosure will be needed to comply with legal requirements, but this disclosure is protected from further disclosure by law.

The Equal Pay Act

The Equal Pay Act makes it unlawful for employers to offer different pay and conditions to men and women who are doing the same work. If it is applicable, an employee can lodge a claim at a tribunal whilst they are still in the job or up to six months after leaving. An equal pay questionnaire has been introduced to establish key facts at an early stage in the process and resolve disputes. The National Minimum Wage has also been of benefit to female workers, many of who are low paid, to help balance the pay gap.

Equal Opportunities Policies

Few equal opportunities policies specifically mention gender identity or reassignment. By explicitly including transsexual and transgender issues it demonstrates that employers have considered these issues and are committed to increasing diversity in their workforce.

The Responsibilities of Employers

Employers have a legal responsibility to take reasonable steps to prevent unlawful discrimination. This responsibility should apply to recruitment, selection, training, promotion, dismissal and redundancy policies and practices. Although not a legal requirement a written equal opportunities policy shows a commitment to developing non-discriminatory personnel practices.

• Ensure your company has an equal opportunities policy and review it regularly
• Train staff in equal opportunities
• Keep records of interviews showing why candidates were rejected and keep employment records up to date
• All present and potential employees should be judged on ability, experience, education and any other criteria applicable to the job
• Ensure complaints are taken seriously, properly investigated and, if necessary, addressed
• Examine the payroll – pay should reflect an employees job title, not their gender
• Conduct staff surveys to help determine where discrimination may exist within your business
• For free advice on all sex equality issues you can contact the Equal Opportunities Commission

Resources

ACAS

Aims to improve organisations and working life through better employment relations.

Centre for Research in Education and Gender

Established to provide a networking facility for teachers and researchers concerned with gender, sexuality and anti-sexist practice.

Criminal Records Bureau

Department for Constitutional Affairs

Gender Recognition Division. There is a useful flow chart to guide applicants through the process of gender recognition.

Equality Challenge Unit

Access to all relevant legislation regarding gender alignment as well as further information on equality and diversity issues.

Equal Opportunities Commission

The leading agency working to eliminate sex discrimination in the UK.

FTM Network

Information for female-to-male transgender and transsexual people.

Gendys Network

Network for those who have encountered gender identity problems.

Mermaids

Support group for gender variant children and teenagers offering support to parents, families and carers.

NHS Direct

Gender dysphoria.

Official information on employment tribunals

Press for Change

Lobbying and educational organisation, campaigning to achieve equal civil rights and liberties for all transgender people in the UK.

Prospects

Information on a wide range of careers issues.

TIGER

Tailored Interactive Guidance on Employment Rights. Designed to provide a user-friendly guide through different aspects of UK employment law.

The Beaumont Society

Promotes better understanding of the conditions of gender dysphoria in society, creating and improving tolerance and acceptance of these conditions.

The Gender Trust

Recognised as an authoritative centre for professionals who encounter gender identity issues in the course of their work.

GIRES

The Gender Identity and Research and Education Society. Supports research to address the needs of those in whom there is a strong desire to live in the gender in which they identify, although different from that assigned at birth.

Transgender Zone

Support for transsexual people, covering all aspects of transgender issues.