Papers and Workplace Related Documents

Summary of Disclosure Documentation

The dissemination of accurate information is an essential part of managing Transition at Work. Generally speaking the amount of disclosure documentation and its content is dependent on three aspects:

1. The size of the company 
2. Existing communication strategies 
3. Recognition of the principle of autonomy of disclosure and adherence to a need-to-know strategy.

Fundamentally transsexualism is a private medical condition, however transition is a necessarily visible aspect of treatment, the primary objectives in providing pertinent information are:

a) To avoid unnecessary misconceptions, thereby diffusing potential problems 
b) To ensure that people remain confident in their roles and maintain effective working relationships

Input to documentation often comprises writing from the person concerned, management, H.R. and consultant, and may contain all or any of the following:

1. Personal letter of intent to Transition 
2. Company Letter outlining recognition of condition and stating policy 
3. General staff memo 
4. Support materials 
5. Procedure for handling external calls 
6. Briefing on response to external enquiries.

Setting a matter-of-fact tone and approaching the situation in courteous and factual manner promotes positive ethos and maintains good practice in the workplace.

Managing Transition in the Workplace

Recognised as part of the necessary treatment for the clinical condition of GID (commonly known as transsexualism), Transitioning at Work is probably one of the most awesome events that a person with this condition has to face.

Human beings are a cautious lot, who seek to group themselves within familiar boundaries, thus the disclosure that they have a colleague with an unusual gender based condition necessitating an apparent metamorphosis is likely to cause quite a stir. Whilst the person concerned will have spent years coming to terms with their true identity and will also have become acutely aware of both implicit and explicit pressures to conform to perceived social norms; the majority of the workforce are likely to have had no direct experience of such issues or may have had their attitudes clouded by misconceptions and media hype.

Few of us approach the unknown steadily thus there is understandable potential for misunderstanding, conflicts and distress on both sides. Working with both employers and employees my aim to provide strategies to make an awesome task achievable, and ease anxieties through examples of good practice and real experience.

Good practice in the management of transition in the workplace preserves working relationships, by pre-empting the potential difficulties amongst personnel which could arise out of prejudice or misinformation. Fundamentally this involves efficient dissemination of fact, development and statement of company policy, and effective in-service education; the finer points of the transition plan being personally tailored to suit company dynamics and the individual concerned.

A structured, pro-active approach to transition has been found the most effective strategy with regard to both management and personnel, and contains the following elements

1. Initial disclosure of situation to H.R./ Senior Management
2. Forward planning Meeting with H.R./ Senior Management
3. In-service Training for Management/Colleagues

Carefully presented accurate information dispels fear and prejudice, enabling the employer to minimise confrontation and inform practice, thereby sustaining productivity.

Since transsexualism is a recognised innate condition it is reasonable to assume that a transsexual person who has been a good employee prior to disclosure and transition will remain so, therefore the company employing that person will wish to protect its investment by effective management of the situation at work.

Transsexual employees often prove to be diligent and highly motivated and since the reassignment process does not change the inner person, there are no grounds for employers to expect any less of them as a result of transition; indeed the necessary medical treatment of this condition alleviates considerable personal stress and is therefore likely to result in increased rather than decreased productivity.

Summary of Civil Rights

Background Case Law

Under the terms of the European Equal Treatment Directive 1976 it became illegal to discriminate against people on grounds of their sex; at that time The Sex Discrimination Act 1975 (U.K.) was taken to be inclusive of the transsexual population, thus no special provision was made for those either undergoing or who had undergone Gender Reassignment. Some U.K. Industrial Tribunals were indeed successful in applying the S.D.A. to cases involving transsexual people, so gaining compensation for those employees subjected to harassment, discrimination, or constructive dismissal.

However this was not always the case, some tribunals ruled that the SDA did not apply to the trans’ population. As a direct result of such discrimination the case of P v (1) S and (2) Cornwall County Council was brought to the European Court of Justice.

On 30th April 1996 the European Court of Justice ruled in this case that the European Equal Treatment Directive stipulated that there should be “no discrimination whatsoever on grounds of sex”, a fundamental human right, and that this Directive must apply to discrimination arising from gender reassignment, not simply to grounds of being of biological sex or the other. It therefore became illegal to discriminate against a person on the grounds of their having undergone, or intending to undergo gender reassignment. This landmark ruling opened the way to the Gender Reassignment Regulations 1999 amendment to the S.D.A.

The Gender Reassignment Regulations 1999

Historically this was the first time that transsexual people were specifically identified for protection by U.K. Parliamentary Legislation; thereby ensuring that their Human and Civil rights are protected in the same way as any other male or female employee.

"In both Employment and Vocational Training the SDA protects individuals who are discriminated against because they -

a) intend to undergo gender reassignment 
b) are currently undergoing gender reassignment 
c) have already undergone gender reassignment

Anyone who is treated less favourably by an employer or vocational training body on any of these grounds compared with someone for whom no gender reassignment grounds exist will have a claim under the SDA" 

(Source: Equal Opportunities Commission 2000)

The DfEE have published Guidelines on the Gender Reassignment Regulations 99, in consultation with the UK Parliamentary Forum on Transsexualism, chaired by Dr Lynne Jones MP. Copies available from the DfEE Publications Centre.

The Gender Recognition Act 2004

People who have taken decisive steps to live fully and permanently in the opposite gender to that ascribed at birth may now apply for legal recognition of that gender.

Gender Recognition Panels, comprising legal and medical members, require applicants to demonstrate -

that they have, or have had, gender dysphoria,

that they have lived for at least the last two years in their acquired gender

that they intend to do so until death.

Successful applicants are then issued with a Gender Recognition Certificate and have the full rights of that gender from the date of recognition.They may then apply for appropriate change to their birth certificate, if birth was originally registered in the UK

Section 22 of this Act establishes a right to privacy for the people concerned. It is an offence for a person to disclose information he has acquired in an official capacity about a person's application for a GRC or about the gender history of a successful applicant – this is “protected information”. The term “official capacity” include a person’s functions as a member of the civil service, a constable, an employer or prospective employer, or a person acting in the course of business or the supply of professional services. This is a strict liability offence carrying a fine of thousands of pounds.

Whether or not a Gender Recognition Certificate is held an employee’s gender history is clearly part of that individual’s private medical and personal history over which the employer has a general duty of care, emphasized by existing codes of practice in the maintenance of employment records.

Beyond the U.K.

Europe and the rest of the world are also making strides toward a future of non-discriminatory practice. In the U.S.A. Minneapolis passed the first transgender anti-discrimination law in 1975. Today 89 states, cities and counties have similar laws banning gender-identity discrimination in employment, housing and the use of public accommodations.

 “The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity” were released by a group of 29 international human rights experts in March 2007.

Calling for action worldwide against discrimination and abuse these Principles affirm binding legal standards with which all the States of the United Nations must comply. They were adopted by a group of distinguished experts in international law following a meeting in Yogyakarta, Indonesia. Among the group of experts were a former United Nations High Commissioner for Human Rights, UN independent experts, current and former members of human rights treaty bodies, judges, academics and human rights defenders.

 Principles 12 to 18 of The Yogyakarta Principles set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education and health.

Experience shows that pro-active management of change and the acceptance of human diversity cost less in both human and financial terms than discrimination.

Human Resources are the most valuable in the world; prosperity for all lays in protecting this resource, developing its talents, and making good use of the same.

TGFact offers established expertise in the support of proactive management of gender transition at work – enabling employers to invest in the future rather than pay for the errors of the past.