Ethics guidance

Transgender inclusion in the profession

Issued on 30 March 2017

Status

Whilst this document does not form part of the SRA Handbook, the SRA may have regard to it when exercising its regulatory functions.

Purpose of this guidance

The focus of this guidance is on best practice that specifically applies to trans equality. It represents the SRA's current thinking on this topic and is not an exhaustive list of requirements.

This guidance provides information for all law firms the SRA authorises and regulates about trans equality and explains why it matters. In this guidance we talk about terminology, producing a trans specific statement, drafting a policy, using inclusive language, engaging with staff, looking at facilities and diversity monitoring.

We expect you to promote an inclusive workplace culture and provide equality of opportunity to all staff. We also recognise our responsibility to inform the profession of the rights of trans people and to make sure that no individual is subject to discrimination or victimisation because of their gender.

It is good practice to have in place equality measures for trans people. This means encouraging a welcoming environment in which all staff can meet their full potential and are treated as individuals. This also includes providing support and understanding to those who wish to take, or have taken, steps to present themselves in a gender different to their birth gender.

In seeking to promote an inclusive workplace culture which represents good practice, you may wish to go beyond simply complying with the law in recognising that the current legislation does not cover a fully inclusive definition of trans.

Principle 9

This guidance links to the SRA Principles 2011 and in particular Principle 9 which states: "Run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity"

Whether you are a manager or an employee, you have a role to play in achieving the outcomes in Chapter 2 (Equality and diversity) of the 2011 Code of Conduct. A finding of unlawful discrimination outside practice could also amount to a breach of Principles 1 and 6.

What you can do

Explain the terminology

Trans is an inclusive term for people who may identify themselves as transgender or transsexual, but also includes identities such as agendered, non-gendered, non-binary or gender queer.

Trans1 is an inclusive term describing all those whose gender expression falls outside the typical gender norms, including those who live continuously outside gender norms, sometimes with and sometimes without medical intervention.

Transitioning is the term used to describe the process someone goes through to change from one gender to another, with or without medical intervention. Not every trans person will feel it is appropriate to use the binary genders of male or female during or after transition.

As with all of us, every trans person is different. Some people will transition to their preferred gender full-time and others will choose to live in their preferred gender part-time; some choose to undergo surgery or have other medical intervention and others choose not to.

For further information on terminology, see Stonewall's glossary of terms.

Produce a statement

Your firm can put in place a simple but comprehensive statement about trans equality. This is likely to include information about equality, diversity and inclusion as well as how your firm will benefit from working with and employing trans people at all levels of responsibility. Such a policy normally states that discrimination and harassment against any staff member, including discrimination and harassment against trans people, will not be tolerated.

A statement clearly defines your commitment to the inclusion of all trans people and regardless of a person's formal legal standing, the statement should state that trans people will be treated with dignity and respect. There are many different identities which fall under the trans definition and these can be listed in the statement.

Whatever the individual circumstances, it is important that the organisation is flexible and supportive, and works together with trans people to provide appropriate support.

Draft and implement a policy

A policy on trans equality will help to articulate support in this area. It provides visibility and reassurance and lets staff know this is something that you take seriously. A policy outlines your responsibility towards staff who may wish to identify as trans and will be designed to focus on the support and advice provided to all staff, including managers or others who help to manage the support process at an individual level.

A policy normally includes information on confidentiality; for example respecting the confidentiality of trans staff and not revealing information without the prior agreement of the individual. The policy may also include information about the use of facilities to express that anyone is allowed to access facilities which align with their gender identity.

Alternatively, you could include information about trans equality in an existing equality and diversity policy. If you do this use inclusive language throughout the policy and include specific reference to trans equality.

Use inclusive language

You can remove gendered language from information as it is not always necessary to use he / she or his / her. Instead use their / they. This is an important way in which you can confirm your commitment to trans equality and promote inclusiveness. Another example is using 'people' instead of men / women.

Gender neutral language which may stereotype people according to their sex can be avoided. For example use the term 'chair' instead of ‘chairman’.

A new gender neutral title ‘Mx’ is being widely used by the Government and many organisations in the UK. This can be included as a title option in application and monitoring forms. If you wish to do so, you can remove reference to all titles and not collect this information at all. When writing letters with 'Dear Sir / Madam', think about using the name of the firm or organisation to which the letter is addressed instead.

If you are not sure whether someone identifies as male or female, keep your language neutral until you know what terms they prefer to use.

Think about changing the wording on your website and make specific reference to trans equality.

Engage with your staff

There are a number of ways to inform and engage with staff and colleagues. You could provide training or facilitate an event. If the firm has an LGBT network, use the network group to communicate to staff about trans equality and inclusion. This can help build knowledge, open a discussion and allow staff to ask questions and receive support.

Learning about trans is about not making assumptions. It is about being aware of factors specific to trans people and ensuring that your firm and its staff treat all people in an inclusive and non-discriminatory way by taking such factors into account.

Have active role models in place. This usually works best if the role model is a senior manager or partner of the firm and is visible about their commitment to trans equality. Anyone in the firm can be a role model. However, if the role model is trans, do not force them to be visible or impel them to do trans equality work if they do not wish to do so. Role models might wish to host or chair a trans specific workshop or seminar or publish an article as part of a regular internal communications bulletin.

Confidentiality is crucial and it is important not to inadvertently ‘out’ someone, without their permission.

Facilities

You could introduce gender neutral toilets. This may mean something as simple as changing the signage.

It is not acceptable to restrict a trans person to use disabled toilet facilities unless they are disabled.

Diversity Monitoring

Monitoring trans equality can help you understand the needs of your trans staff or clients. It can help highlight areas for improvement and demonstrate your commitment to equality. If questions about trans are included as part of your diversity monitoring requirements, have in place protocols with regards to data protection, anonymity and confidentiality. Think about why you are collecting trans data and the possible changes you may wish to implement as a result of any findings.

Communicate to staff why you are asking these questions and what will happen to the information that is gathered. Trans staff are more likely to disclose information about themselves if a firm demonstrates it is trans inclusive. This can be demonstrated by implementing a trans policy or updating existing equality policies.

You should also consider providing specific trans awareness training in advance to any staff who handle enquiries about monitoring forms or process the data collected so that data is:

  • Held securely and confidentially.
  • Obtained fairly and efficiently.
  • Recorded accurately and reliably.
  • Used effectively and ethically.
  • Shared appropriately and lawfully.

The SRA is including monitoring questions on trans for the first time in 2017 as part of the firm diversity data collection exercise. We have worked closely with expert organisations on developing these questions to ensure best practice. You can see the questions we have used about trans status and gender identity in our diversity questionnaire. You may wish to consider letting people use their own preferred description of their gender identity.

Records

If a trans staff member is transitioning, their staff record should be changed at a mutually agreed time to reflect their preferred gender and name. Records that reveal a persons has transitioned must be properly protected. You should consider what paper records you hold and whether these should be replaced and how any unchanged records are kept to comply with your duties to keep such information confidential. However, records should not be changed without the permission of the trans person.

Further information

Legislation

Equality Act 2010

The Equality Act 2010 (the Act) has strengthened and streamlined previous equalities legislation. Gender reassignment is one of the nine protected characteristics within the Act and is also a relevant protected characteristic for the purposes of the public sector equality duty.

Importantly, the definition of gender reassignment within the Act gives protection from discrimination to a person who has proposed, started or completed a process to change their sex. As such, people do not have to undergo a medical process to assign a new gender, in order to be protected by the Act. What matters is that a person has the intention to permanently live, or are already living in their preferred gender role. The Act protects:

  • Trans people whether or not they are under medical supervision to undergo gender reassignment;
  • People who experience discrimination because they are perceived to be trans people (whether or not they are); and
  • People who are discriminated against because of their association with a trans person.

The Gender Recognition Act 2004

The Gender Recognition Act 2004 allows trans people to apply to have legal recognition of their acquired gender.

The Data Protection Act 1998

Under the Data Protection Act 1998, trans identity and gender reassignment constitute ‘sensitive data’ for the purposes of the legislation. Therefore information relating to a person’s trans status cannot be recorded or passed to another person unless conditions under schedule 3 to the Data Protection Act for processing sensitive personal data are met.

The Human Rights Act 1998

The Human Rights Act 1998 provides protection to trans people, principally under the right to a private life. The courts have interpreted the concept of ‘private life’ in a very broad way to cover, among other things, a person’s right to express a sexual identity, to live a particular lifestyle and to choose the way they look and dress. It also means that personal information (including official records, photographs and letters) should be kept securely and not shared without the permission of the individual concerned.

Notes

1. This definition is provided by the Gender Identity Research and Education Society (GIRES).

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