6th June 2022

Can an employer ask an employee questions about gender reassignment?

Can an employer ask an employee questions about gender reassignment?

We often receive more questions than we have time to answer at Ask the Expert. Here is one such question from May:

Can I ask an employee whether they are having gender reassignment surgery?

This question raises a multitude of potential legal issues and risks including discrimination, confidentiality, data protection and breach of the duty of trust and confidence. However, above all, it requires the employer to treat the issue extremely sensitively.

Employers need to be aware that:

  • Under the Equality Act 2010, a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. It is not necessary for people to have any medical diagnosis or treatment to gain gender reassignment protection; it is a personal process of moving from one’s birth gender to the preferred gender. Asking an employee whether they are having gender reassignment surgery could potentially be gender reassignment harassment if there is unwanted conduct related to gender reassignment that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
  • Under the Gender Recognition Act 2004, it is a strict liability criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. A trans person (with or without a gender recognition certificate) is not obliged to inform their employer of their gender change, although some may choose to do so to ensure that their gender history is clearly established to be protected information.
  • Gender reassignment and any information appertaining to an individual’s gender history will constitute special category data under GDPR and the Data Protection Act 2018, which can only be processed for certain specified reasons.
  • Under The European Convention on Human Rights (ECHR) everyone has the right to respect for their private and family life. Respect for private life protects a range of interests such as the right to personal, sexual and gender autonomy.
  • Some employers may seek to collect equality information on gender identity and trans status to promote diversity within the organisation. The EHRC Employment Statutory Code of Practice states that monitoring of transsexual staff is a very sensitive area and opinion continues to be divided on this issue. While there is a need to protect an individual’s right to privacy, without gathering some form of evidence it may be difficult to monitor the impact of policies and procedures on transsexual people or employment patterns such as recruitment, training, promotion or leaving rates

We would suggest that any employer considering whether to ask an employee such a question should first ask itself why it wants or feels it needs to ask and then read The Government Equalities Office (GEO) guidance, The recruitment and retention of transgender staff: Guidance for employers, which provides advice for employers on how to approach gender identity issues sensitively. The section “Retention – individual issues” underlines the fact that discussions with an individual about transitioning should be led by the individual as much as possible.

If an employer remains of the view that it does want or need to ask this question legal advice should be taken because every employee’s circumstances and the workplace in which they work are different and this is a facts sensitive situation. An employer must be aware of all the potential legal pitfalls and risks before doing anything.

If you would like advice about any other employment law related matter please contact Blackadders Employment Team operating across Aberdeen, Dundee, Edinburgh, Glasgow and Perth. You can also join Donna Reynolds and Blair Duncan at their next Ask the Expert. Details can be found here.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law


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