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Trans

How to come out as transgender at work

Vic Parsons July 20, 2019
Photo of person adorned in trans flag.

A person draped in a transgender flag (Drew Angerer/Getty)

Navigating the workplace as a transgender person can be a stressful experience, and coming out can feel incredibly daunting.

PinkNews spoke to Melanie Morton, an employment law solicitor at Nelson’s law firm, to find out what, legally and comprehensively speaking, is the best way to go about it.

When you decide to come out as trans at work, who should you talk to first and what should you say?

Melanie Morton: It’s a very personal choice, but I think the first port of call could be your line manager, your HR department – if you’ve got one – or you could talk to a mate first, before you speak to someone formally.

But in a way there’s merit in telling somebody quite senior quite early on, bearing in mind that there is protection for people in this situation, so it could be beneficial that somebody important knows. Often your line manager or HR person will be important enough.

There is no hard and fast rule

And from an employer’s perspective, the more they know early on then the more informed they’re going to be and better able to support you.

The kind of things you might want to cover are: communications – as in how you might want this information to be communicated, when, and to who; and when the first day of you going to work having changed your gender presentation might be.

There is no hard and fast rule about what information you should share.

So, these protections you’ve mentioned. Can we go through them – how does the law protect trans employees from discrimination?

There are different types of discrimination, but basically it’s when you treat someone less favourably for being trans.

There are three main types of discrimination.

Direct discrimination is when someone is treated less favourably because of gender reassignment. The most basic example would be if you came out as trans and were then demoted.

Indirect discrimination is where an employer applies a provision, criteria or practice to all the staff that puts people who are trans at a disadvantage when compared with others. It’s less obvious. For example, if an employer had induction sessions for new starters that included icebreakers, and asked everybody on staff to bring in a photo of themselves as a toddler.

In this scenario, a trans woman, who doesn’t want people to know she’s trans, doesn’t bring in a photo. She might be criticised for not joining in. So, the requirement that everybody has to bring in a photo indirectly discriminates against someone who has a protected characteristic of gender reassignment.

Finally, harassment is where somebody treats you in a way that has the purpose of violating your dignity or creating an offensive, intimidating atmosphere for you. It’s the one you’re most likely to recognise if it happens.

(Zackary Drucker/The Gender Spectrum Collection)

How do you go about changing the name and pronouns you use in your workplace – do you need to have formally changed your name by deed poll?

No, not at all.

The protected characteristic of gender reassignment under the Equality Act is a wider definition than people think. It doesn’t need to involve a physical change, it doesn’t need to involve a medical diagnosis or a gender recognition certificate, there doesn’t need to be any medical supervision, doesn’t need to be a change of name by deed poll – it is enough that somebody is says, ‘I’m proposing to live the rest of my life in this way.’

So, you saying, ‘I want people to use these pronouns and this name from now on,’ is enough – and your right to do that and have people respect it is protected by the law.

What about telling your co-workers?

I think, assuming that you’ve told someone at work, whether its your boss or HR, it’s good practice for the employer to agree on a communication strategy with you.

Some people might be – understandably – against a widespread announcement-type route. But equally, it could be upsetting and prolonged if coworkers find out in a piecemeal way, because if it’s not dealt with in a succinct manner, what that could result in is perhaps a prolonging of the questions – the person might not mind having the questions, but if they’re still going on four months later then perhaps there is merit in taking quite a targeted approach.

It’s also not an unreasonable request to ask your manager to do the communicating for you

And I think that can take any form. That can be the person going to speak to their colleagues, they can delegate that to their manager if they don’t feel comfortable, I think they can have meetings, do an email really whatever makes both parties feel comfortable.

It’s also not an unreasonable request to ask your manager to do the communicating for you. I think it’s a collaborative way to go about things. But bear in mind the resources and size of the business in question. If you’re asking your line manager to go and meet with a thousand people, clearly they’re not going to do that. Another option is going with the line manager, having somebody’s support and putting a couple of meetings in so you can go around the relevant departments.

(Zackary Drucker/The Gender Spectrum Collection)

What should you do if someone reacts badly once you’ve come out as trans?

If people react unpleasantly or in a threatening manner that is not OK.

The simple principle in the Equality Act is it is unlawful. Individual managers can be held individually liable, too. It is unlawful to discriminate on the grounds of gender reassignment.

So, if a colleague engages in what we’ll call unwanted conduct, that’s related to gender reassignment, and as a result of that the person feels that their dignity was violated or that they’ve been degraded or humiliated – that’s harassment. It’s an actionable claim.

It is unlawful to discriminate on the grounds of gender reassignment

If that happens, it’s upsetting, and in that situation it comes down to the individual – do they want to address it informally by saying to the colleague look, please don’t speak to me like that or can you not do that. Or whether they’re going to go to the line manager to see if they can resolve it – clearly, for matters that are prolonged and serious, you’re into raising a formal grievance about it.

Like with any problem at work, some people are more inclined to actually raise it than others.

With all of these sorts of things, there’s going to be human error. There’s going to be slipups in the first instance for a shorter period of time, as people get used to the change. What is different is when people are meaningfully and intentionally not referring to you in a way that you have asked with a view of upsetting you. Intention is important, and I think in most cases it’s probably quite evident, to be honest with you.

(Zackary Drucker/The Gender Spectrum Collection)

What about people who work in customer-facing jobs – in retail or in the food industry?

Discrimination protection does not extend to third-party harassment.

Where I think that leaves people is that if somebody has been subjected to harassment or poor treatment by a third party – whether that’s a customer, a contractor, somebody in the shop – again, it’s happening in the workplace, so it’s a matter of bringing it to the employers attention, and it’s really the way that the employer deals with that, which will inform what happens next.

Some employers will take a really robust response to that kind of thing, and in open public forums like shops you see the signs, things that say ‘we do not tolerate such and such’. I think it’s really important employers take a prompt response to complaints of that nature and look at what they can and can’t do.

If you decide to transition more than socially – with surgery, or hormones – do you need to inform your boss? And, more importantly, can you get time off for it?

There is a specific protection in the Equality Act under section 16 about time off. But there’s no right to extra time off for medical appointments that pertain to a medical transition. So, what the law says is: staff shouldn’t be treated any less favourably than the employer would treat a member of staff who was off sick for any other reason – but you don’t get extra time off to medically transition!

It would be useful to provide information to your employer early on about what sort of time off for appointments you might require, if you know.

There are planned absences and emergency absences, and all employers have different ways of dealing with things and sometimes this will come down to the rules in your workplace. And if the rules in your workplace are you should try and arrange for medical appointments outside of work time where possible and that’s consistently applied, that is something you will have to deal with.

What about if you’re freelance?

If you’re self employed, you’re on your own – the same as with holiday and everything else.

With all these things we’ve been talking about, how different is it if you’re a non-binary transgender person?

The definition of gender reassignment under the act doesn’t currently expressly cover people who are non-binary from discrimination at work.

However, the protections under the Equality Act could stretch to the perception that someone is transgender. It’s discrimination by perception.

So, if somebody’s non-binary and somebody assumes that they are transgender for the purposes of the definition under the Equality Act, and treats them less favourably, that’s discrimination by perception.

Protections under the Equality Act could stretch to the perception that someone is transgender

So, just to clarify, if you’re non-binary and you identify as trans then you are protected?

It’s quite feasible then that an employer might perceive someone falls under that category [of gender reassignment] and if they do and if they’re treated less favourably they could find themselves protected by the law via the perception route, even when they identify as non-binary and trans.

So, yes!

This interview has been edited for clarity and length.

More: Equality Act, gender recognition act, Transgender

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