Trans and non-binary inclusion

Trans and non-binary inclusion at work

We spend a third of our lives at work, so for trans and non-binary people, working in an inclusive organisation can have a significant impact on their day-to-day experience and wellbeing.

For employers, having the right policies and procedures in place and raising trans and non-binary awareness can also help to manage legal and reputational risks, as well as benefiting recruitment and retention and making sure everyone is able to do their best work.

In this episode, we’re joined by Bobbi Pickard, CEO of Trans in the City, to discuss the risks and opportunities, and what HR and legal teams need to know, including:

• Is the term LGBTQIA+ a help or a hindrance?
• What does trans and non-binary actually mean?
• Are gender-critical beliefs protected by law?
• Is the law fit for purpose, and how might it change in the future?
• What does best practice look like?

Further reading:

• Grainger plc & Ors v Nicholson
• Maya Forstater v CGD Europe & Ors
• Ms R Taylor v Jaguar Land Rover Ltd
• United Nations Global Compact

If you liked the podcast please rate and review it. It helps others to know that it's worth a listen. You can subscribe so you know when we're back again and you can email us feedback and ideas for future episodes at emplawpodcast@tlt.com and you can also follow us and speak to us on Twitter @TLT_Employment.

Transcript

Jonathan Rennie

Hello and welcome to Employment Law Focus. I'm Jonathan Rennie, partner in our UK-wide employment team, based in Glasgow, and I'm joined today by Grace Caldicott, an associate in our Manchester office, and today we're also joined by a very special guest Bobbi Pickard, CEO of Trans in the City.

We're going to be discussing what trans inclusion means and why employers need to be thinking about this now – covering both changes in the law and the expectations of different stakeholders – and looking at the critical role that employers can play in trans people's lives. We'll look at where the issues lie, and what employers could be doing to improve and address this.

Bobbi, listen, thanks so much for joining us. I'm really keen to hear about Trans in the City and what you do.

Bobbi Pickard

So, Trans in the City is an organisation that I founded five years ago now – it's our fifth year – and I really founded it because it was really obvious that there were some organisations that had no one to help them with trans awareness, and were really struggling to understand what to do for trans and non-binary people. Conversely, there was some organisations that had trans role models that were actually pushing ahead with trans and non-binary awareness.

So there was this disparity that was happening across organisations. But there was almost like an arms race that was happening as well, where those organisations that had lots of funding were able to put on better events and do more around trans and non-binary awareness. And we decided we wanted to change that by trying to get organisations to collaborate and to share resources, share role models and to try and convince them to do all of that for free.

Jonathan Rennie

I think you're being a bit shy about the number of organisations that are involved in Trans in the City, so you can tell us, by all means.

Bobbi Pickard

So, we started off with five and now we're up to over 360, helping us actually through donations to bring free training, free consultancy, give things like the guidelines and policies for trans and non-binary people to organisations that need them (for free, or, you know, maybe a small donation). It's a lot of hard work but, you know, it really feels like we're making a difference now which is, which is what we need to do.

Jonathan Rennie

And I think from our perspective, Bobbi, we've covered discrimination topics in numbers of previous episodes, but we wanted to say why it's important to cover this particular topic now. So we know about the legal framework, and the Equality Act being around since 2010, but we also know in the last couple of years there's been far more high profile cases looking at gender reassignment, looking at transgender rights, trying to, trying to compare that with other rights and we know sometimes there can be conflict or almost competition between the different protected characteristics.

But the case law's growing and we expect that to continue. And I suppose also in the spirit of moving beyond the legal framework, we want employers to do the right thing and to feel that they can have those conversations, and Grace will cover this off in some of the, some of the case law updates.

And I think also we acknowledge and understand it can be quite complicated at times, which is why it's been fantastic to be able to work with you and have a better handle on this. Also stating the obvious that employers play a critical role in trans and non-binary people's lives. I read a quote from you – I didn't tell you about this actually, but it was from your Out Leadership interview – and what you said was “When you know more about people, you can work out the path to get the best out of them”, the idea of their authentic self, and I wondered just from your experience why that's so important.

Bobbi Pickard

Yeah, you know, it's, I think the important thing to remember with trans and non-binary people is there's a huge pressure on every trans and non-binary person to conform to what society thinks they should be.

And obviously as a trans and non-binary person you're not able to do that and that creates a massive pressure, and that pressure comes out in, you know, the high rates of suicide that we see among the trans population: 48% attempted suicide, 92% suicidal ideation. And it also comes out in mental wellbeing challenges like depression: 85% of the trans community experiencing depression sometime in their lifetime.

So it's very important because as you say our employers, the places we work, are such vital parts of our life and if we have that part of our life that doesn't feel safe, where we don't feel that we can relax, where we can't flourish, then that's gonna add on those additional pressures hugely.

And actually, it's important for employers to stand up very publicly and say that they do support trans and non-binary people. That's one of the most important things that an employer can do actually. And, you know, that has the twofold effect of creating an environment that legally actually is lower risk for the employer.

And, you know, we can see the performance benefits actually – not just for trans and non-binary people, obviously across all diversities – that if they are accepted and they feel safe, we can see those performance benefits that you then receive from not only the employee but receive from better teams, better teamworking, better innovation, better decisions and, you know, the long and short of that is you end up with a company that is more efficient and more profitable; hugely important.

Jonathan Rennie

Yeah, I mean, I was speaking to somebody last week and he was talking about energy, and he was making the point that in inclusive environments where people are welcomed and can be themselves and be authentic, they can better focus their energy on their work and what they're there for, rather than being in an environment where there's barriers and there's a drain and people are thinking about how they should behave.

I wonder, it might be helpful if you were able to explain what we mean when we say "trans" and touch on the trans experience.

Bobbi Pickard

Yeah, of course and actually, you know, this is a very salient point, where the law is at odds with scientific facts. So in law, in the Equality Act then, as far as the law is concerned, sex is binary: male and female. But we've known for decades – I think over 100 years now – that both sex and gender are infinitely varying.

In the simplest possible terms, you can think of your biological sex as the sex of your body, and in the simplest possible terms, you can think of your gender as the sex of your brain. Both of them are independent to each other, and both of them are an infinitely varying scale. So if your biological sex and your gender correspond, then you won't be trans or non-binary and you may not have even considered that they could be two separate things. But if they don't correspond, then you really do feel the difference.

So transgender are people that have a biological sex that's opposite to their gender. Those people that are non-binary, the terms have been around for at least 40 years, it means that these people experience their gender in a way that's outside the way that we've been taught at school.

Jonathan Rennie

I think people love statistics, don't they, being able to reflect on, “Well, how many people does this impact?”. These people like to look at their own circle and think, “Well, you know, do I see that, do I not, do I not see that?”. And of course lots of this is unseen. So do you have a feel for numbers of people that fall into this? And it's a wide category of course.

Bobbi Pickard

Yeah of course. And, you know, this is a very interesting subject. Obviously, as someone that's in diversity and inclusion in business, you always get asked for, you know, “Where's the data?”. It's very hard to get data from people if they don't feel safe giving it, and obviously being trans and non-binary in our society isn't safe at the moment so it's very difficult to get it.

But what we can see is from surveys all around the world the numbers of people identifying as transgender is somewhere between 0.6 and 1.6% of the population. We see a larger group on top of that, around about 4%, that identify perhaps as non-binary or gender non-conforming as well.

And I think the real thing that employers need to understand is: those people from younger demographics are far more open to researching and exploring their gender, and have far more open access to the information. So if we want to attract those people that are going into university today in five, ten, 15 years, then we need to have companies and organisations that fit those new workforces. Diversity and inclusion isn't a vocation for the people of today, it's for the people of tomorrow, you know. It takes ten years to change a global organisation to be the sort of organisation that you want it to be.

Jonathan Rennie

It strikes me of course that we, we hear the terminology and we don't often break it down. But in respect of the term LGBT or LGBT+ or LGBTQ+, what issues do you think employers face in dealing with that when it's all aggregated together, versus focusing on one or other of those areas?

Bobbi Pickard

Funnily enough, I've been putting a bit of thought into that abbreviation of LGBT (normally I use LGBTQIA+ actually). But I'm of the mind that employers should be looking at the UN Compact that uses the LGBTIQ+.

It's a very interesting subject, the rights of each of those individual letters within the community. You know, I think when we look back to the mid-60s, late-60s, everyone was kind of on a level playing field, everyone was on the start line at the same place. What we've seen in the 50 years of LGBTIQA+ rights moving forward in our society is those people that had the inherent privilege to start with have been able to use that inherent privilege to push their rights further forward. What we've also seen is those groups that have the most stigma around them through lack of education and knowledge – trans people, bi people – have really very much lagged behind, even though those people were very, very loud, very vocal, very involved in those trans rights.

But I think we're at the stage within the community now where those people that have more rights need to look backwards and start helping other people.

There's a great exercise actually – I mean, you can look at, there's loads of different versions of it – but it's the privilege walk. You know, line everybody up, put a prize at the end, the other side of the room, and say, you know, everybody that's white take one step forward, everybody that went to university take a step forward, everybody whose parents went to university take a step forward. And you'll soon see the demographics opening up. That doesn't mean those people haven't struggled. It doesn't mean that white straight men haven't had to work their socks off to get to where they are. What it means is they haven't had a headwind as well.

Grace Caldicott

Yeah, that's a really useful context for employers, Bobbi, and there is so much to think about in relation to that and all the different strands of not just having a network in place but also considering all the different challenges and needs of each of those persons in those, in those networks.

And just thinking about work and the kind of workplace, employment is of course one of the most legally challenging and difficult areas for trans people to navigate. And, you know, the barriers that could be there are endless, but they could include things like bullying, microaggressions, feelings of isolation, pressures to conceal identity. And in addition to that, there are institutional prejudices, so issues with policies or practices, or generally the culture of a business that may impact or cause stigma. And there may even be simple issues, you know – you may have personal experiences of this – in difficulty in changing names and pronouns or even physical barriers such as bathrooms or changing facilities.

And one really interesting example that I thought of is where if, for example, an employer has specific uniforms that they need or want female or male employees to wear, where do transgender people fit there? And, you know, that could make them feel really isolated and unwanted in the workplace. So it's really clear that employers can make a massive difference if they think about this proactively and they're supportive for the transgender community. And it's also obvious that if they don't think about those things, then it can have massive impacts on the transgender community in the workplace.

Bobbi Pickard

It absolutely can, and the same as the rest of our society – especially if our organisations have been around for lots of years – we have these traditions that are kind of set in stone, or feel that they're set in stone. And actually it's those things that we need to review and work out whether they're things that really are of value to ourselves, to our organisations, to our employees and to our customers.

It's so important that employers really start reviewing things with a more flexible view of gender. You know, when we have conversations in our organisations – gender pay gap, you know, when we're looking at glass ceilings for gender, all of those sort of things – we need to remember or we need to at least start thinking that gender isn't the binary.

In some ways, it's unhelpful having trans and non-binary lumped in with LGBTIQ+ and in other ways it's, it is very helpful. But one of the ways it's unhelpful is, we have the conversations around gender but exclude trans and non-binary from those conversations. And it's in those areas around gender and gender equality in our workplaces that we should be really considering trans and non-binary people as well as, you know, typically women in terms of equality of gender in our, in our workplaces.

The other thing that's really, really important is if things go wrong these days – and they can very, very easily go wrong if you don't have policies and guidelines in place – if you as an organisation haven't set a position, you know, what your position is on trans and non-binary people, how they stand in your organisation, how your organisation would stand up for them, things can go wrong very, very easily and very, very quickly.

And, you know, we've seen cases go to tribunals. These days, you know, we live in a very, very fast moving news world. So even if news doesn't go viral, the LGBT community is actually very well connected and obviously the trans community is quite small, so positive news about organisations spreads very, very quickly with the trans community and negative news does as well.

Grace Caldicott

There's been lots of very interesting cases, and they are really complex, and I think one of the most common themes that we're seeing is the issue with conflicting beliefs. So say, for example, someone with a Christian belief speaks out against the trans community and something happens as a consequence of that, say for example they're dismissed and they then feel that they have been discriminated against because of their own personal beliefs.

So, I think the judgments and the issues relating to these cases are very sensitive, and I think for a lot of people reading these it can seem quite shocking because the beliefs that they're talking about cannot sit, don't sit well with a lot of the general public. But obviously from a legal perspective there are certain issues and tests that need to be decided on whether those beliefs are worthy of protection in a democratic society.

So I know we've spoken before, Jonathan, about this test, this claim called Grainger – so I believe it's around 12 years old now – and there was a test set out in there that is then used in future case law. So it's a four-part test and we're not gonna be going through each of those today, but I think the most interesting point to pick up on is, and something that is talked about a lot in the judgments, is the questions...the key questions to be asked are:

• Are those beliefs worthy of respect in a democratic society?

• Are they incompatible with human dignity?

• And do they conflict with the fundamental rights of others?

So it's a really difficult question to deal with, and one that the tribunals have to deal with sensitively, but it's something that we are seeing crop up again and again in these cases.

Bobbi Pickard

One thing that's, that's interesting and I guess, you know, the Forstater case really pretty much blew Grainger away actually and said, you know, it's so loose that unless you have a genocidal view then, then you'll meet that case. But I think from cases like Mackereth we can see that there's also a big difference between belief and action.

So, and I guess, you know, there's, so there is the law and there's also values of your organisation and obviously those need to run mostly hand in hand. But I think, you know, it's important to realise that your employees allowed, are allowed and very rightly allowed to believe in whatever they like and that's actually a very important right of that person to be allowed to have their own personal beliefs, the things that they hold dear personally. What those beliefs don't give them the right to do is to bring those beliefs into a place of employment and then cause distress to other people.

So, you know, I think Grainger I think is probably on quite shaky ground these days because of the Forstater case. But I think, you know, it's one of those, one of those things where I think the important thing is to, to, is that last part: is it going to cause discrimination or harm to somebody else? And I guess that's the, that's the last bit of Grainger I think that's kind of holding on and very rightfully so at the minute.

Grace Caldicott

And also, I think the important thing to remember with these cases – say for example with Forstater, is, you know, this decision going all the way to the Employment Appeals Tribunal – is deciding on this specific point of: is that belief protected? That doesn't mean to go on that just because that belief is protected that they are then successful in their claim, that's obviously a completely separate issue. But obviously, it's really interesting to read the judgments on these cases if any of the listeners get time, because like you say, Forstater has set the kind of threshold very low as to what wouldn't be protected and they said things like only beliefs that are so extreme that they are akin to Nazism or totalitarianism will be excluded i.e. they're unworthy of respect in a democratic society.

So, like you said, I find that personally really interesting but the key issue that you've mentioned, Bobbi, is, you know, the manifestation of that and how that would show itself in the workplace. People are entitled to their beliefs but it's how that would then, you know, as you said be actioned.

Bobbi Pickard

I think so and, you know, I think that's one of those areas where employers can actually be very clear, you know, when people join. I think it's, it's, and, you know, for existing employees, almost every organisation has a set of values. I think it's very, very important for employers to really vocalise those values very clearly, make it very clear to people what the values are of their organisation, what they expect from employees. And I think that's really where I've seen organisations run into trouble when they've tried to implement values, implement policies on the fly.

Grace Caldicott

I think this might be a good opportunity to then talk about the Taylor v Jaguar Land Rover case, Bobbi, because from reading about that claim, that was an inherent issue for the business – in that Taylor suffered 27 counts, I think it was, of harassment and discrimination, and when they complained to Jaguar Land Rover they took little action. And I think there was a serious issue in that the HR team and managers were ill-equipped to deal with those types of complaints and issues.

And I know there was a lot of focus on naming names and taking disciplinary action, which I think sometimes employers can get stuck in a rut or tunnel vision of how to deal with things, whereas with these situations they're so sensitive it is sometimes – and obviously correct me if I'm wrong – about stepping back, looking at the bigger picture and how, you know, employers can educate their workforce, assess their policies and how to deal with it from a cultural perspective rather than kind of obsessing over disciplinary processes.

And for someone going through that, not that I've personally experienced it but I can imagine, you know, they may not want to name names, because that could have further repercussions and cause more issues for them. And, you know, Jaguar Land Rover could have potentially dealt with that in a much better way by, like you say, preparing, putting in the relevant policies and really educating the workforce. So I don't know what your thoughts are on that and that particular claim?

Bobbi Pickard

I guess that's the, that's really the two prongs that make the most impact: educating your staff – especially your people in culture, staff, your HR departments – and then setting the values and setting the positions of the company.

I think the interesting thing with Taylor v Land Rover was, Taylor was also non-binary. And if we look at the Equality Act 2010, it mentions transgender only and it mentions gender reassignment. So both of those are very vague. I think Taylor v Land Rover very clearly spelled out that transgender also includes non-binary people, which actually talking to the people that, that wrote that Act, were involved in writing that Act, was always their intention, and you can look back at the notes that they took and they very clearly mentioned them.

It's very difficult, isn't it, because we're talking about law and we're talking about the letter of the law but, you know, we can still stay within the letter of the law but have some pragmatism about it. Gender reassignment for instance is seen by lots of people as surgery only, but it's actually very clear that the minute a trans or non-binary person does anything to start their transition then they're in a period of gender reassignment.

So it's very…that's normally one of the pitfalls that I see, where employers tend not to think that a trans and non-binary person has any type of protection unless they're under medical supervision as part of a transition. And that's simply not the case, you know. So, and I guess it's those nuances that you wouldn't pick up without that education and without that confidence to be able to look at the cases and read them for what they are, rather than just reading them, as we're talking about gender, in very binary terms.

Jonathan Rennie

I was listening to a podcast with the barrister in that case, and she was saying that recommendations were granted by the tribunal chair in terms of the organisation having to appoint a diversity and inclusion champion and to commission annual reports in investigating diversity, and to take various measures. And that seemed to be a positive outcome, only in the sense of the tribunal went over and beyond compensation and doesn't always grant those, those recommendations.

And it seemed that this was one of these tribunals where the organisation at a certain point in the litigation almost recognised that mistakes had been made. But we don't want organisations learning in the course of litigation, we want organisations to be proactive in this area, and take these steps to prevent people facing these horrendous, horrendous scenarios. We'll put links to the case in the notes to the podcast.

So I think we've seen in the case law developments in this area, and we understand that there's clearly more to do, there's a need for reform in the law. And I wonder which way do we think the law will go next?

Grace Caldicott

So I think this is obviously a really difficult question and, you know, myself and Jonathan or any employment lawyer doesn't have a crystal ball to be able to predict this, but based on say the interpretation of the protected characteristic of gender reassignment under Taylor v Jaguar Land Rover, we're hoping to see less of a focus on physical requirements and obviously putting into place the intention of parliament when they drafted that piece of legislation.

And it will be interesting to see – if there are any changes in legislation – how that will then be interpreted in case law, because obviously we know we have what the law is in writing and then it is then interpreted as we move through with different claims.

So, you know, the other thing to mention as well is that the Equality Act is dated 2010. Now that doesn't seem to sound that old, but 12 years in a social context is a very long time and things have moved on a lot. So, you know, it's yet to be seen if there's going to be potential for new protected characteristics or anything along those lines but, you know, just to be clear, there's nothing concrete on that yet but it is, you know, yet to be seen if that is something that is going to come about in the future.

Bobbi Pickard

It's an interesting situation as well I think that we find ourselves in with bodies like the Equality and Human Rights Commission, which is actually bringing out guidance that is contrary to law at the moment – which I think is going to cause some risk to employers if, you know, I think if, if some of that guidance is followed then actually it will lead them into areas that will cause them problems legally.

Jonathan Rennie

I think for me in chatting with you, Bobbi, and working on this over the last few weeks, it's, it's genuinely been really educational and so it, it lends itself to a question which is basically how can someone at work be a strong ally for the trans community?

Bobbi Pickard

It comes down to education and confidence and being brave actually, they're the three things you need to be an effective ally. You need to educate yourself, so go and do some trans training, go and research trans and non-binary people, look for trans and non-binary people talking about inclusion, look for employers talking about inclusion.

Once you gain that level of comfort around trans and non-binary people then the most important stage is to be brave enough to stand up, state your position, challenge those people that are saying the incorrect things around trans and non-binary people. And actually I think it's at that stage that you really become an ally, because unless you are somebody that's going to stand up for trans and non-binary people actively and fight against the discrimination and the hate that they're getting then you're not really an ally, you're just an interested bystander.

So I think an ally really is that person that makes a difference to the trans and non-binary community, not just tuts into their morning newspaper saying that it's really wrong and something should be done.

Grace Caldicott

Bobbi, thank you so much for joining us and providing all of your insightful knowledge. It's been so, so interesting and also thank you for listening to this episode of the podcast.

Jonathan Rennie

If you liked the podcast please rate and review it. It helps others to know that it's worth a listen. You can subscribe so you know when we're back again and you can email us feedback and ideas for future episodes at emplawpodcast@tlt.com and you can also follow us and speak to us on Twitter @TLT_Employment.

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