Transition and change to gender expression template

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16 Sep 2021
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Our transition and change to gender expression template is intended for use by law firms and organisations.

It gives an overview of the key areas for employers to consider when a staff member wishes to transition or change their gender expression at work.

The template is not intended to be prescriptive, nor provide an exhaustive list of the areas to consider.

Action points should always be agreed with the staff member concerned. The steps may need to be adjusted to recognise the size of the firm or different ways of working.

The legal requirements

The Equality Act 2010 and the Gender Recognition Act 2004 set out minimum requirements in relation to protection and recognition for trans people.

Firms must meet their duties under the Equality Act to avoid discrimination in employment and service provision.

We encourage firms to exceed the minimum threshold of legal protections that trans and non-binary people are guaranteed by this legislation, in order to attract, retain and progress diverse talent in the profession.

Firms must also comply with SRA Principle 6 and paragraph 1.1 of the SRA Code of Conduct for Firms, which require law firms to act in a way that encourages equality, diversity and inclusion (EDI), and the expected outcomes set out in its guidance on its approach to EDI.

The SRA’s guidance for law firms on creating a trans inclusive workplace also sets out good practice and provides information about ways in which firms can comply with Principle 6 and paragraph 1.1 in relation to trans equality.

The template guide and plan have been drafted by members of the Law Society’s LGBT+ committee, with additional input from Robin Moira White, barrister and co-author of A Practical Guide to Transgender Law (2021).

Using this template is optional. It is not legal advice and it will not cover all scenarios. Each firm should consider its own unique circumstances.

The template reflects Equality and Human Rights Commission (EHRC) guidance – for more information, see below.

We hope these materials will help firms comply with the legal requirements and help them embed EDI principles into their organisational practices and culture.

There are two key pieces of legislation concerning the rights of trans and non-binary people in the UK:

  • Equality Act 2010
  • Gender Recognition Act 2004

Equality Act 2010

The Equality Act 2010 provides protection from discrimination and harassment in employment and service provision because of:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

These are classified as protected characteristics under the Act.

In the Act, a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has 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.

The EHRC’s Code of Practice for Employment (EHRC Code), which provides statutory guidance on interpreting the Act, says the process referred to in this definition is a personal process rather than a medical process.

An Employment Tribunal decision in 2020 (Ms R Taylor v Jaguar Land Rover Ltd: 1304471/2018) found that a non-binary employee was protected under the gender reassignment definition in the Act.

Listen to a podcast discussing the implications of the case

EHRC Code

The EHRC Code says that if a worker is undergoing gender reassignment, it’s good practice for the employer to consult with them sensitively about:

  • their needs in the workplace, and
  • whether there are reasonable and practical steps the employer can take to help the worker

It recommends that the employer should arrange to discuss sympathetically with the worker which toilet facilities they should use, their uniform, and communications with other members of staff.

We’ve adopted this recommendation in our transition and change to gender identity template.

Gender Recognition Act 2004

The Gender Recognition Act 2004 enables a trans adult (over 18) to apply for legal recognition in their “acquired gender” if they have a medical diagnosis of gender dysphoria, have lived in their acquired gender for two years or more, and intend to do so for the rest of their life.

Under section 22, it’s an offence for an employer or prospective employer or an employee to disclose to any other person “protected information” if they have applied for or obtained a Gender Recognition Certificate, apart from for a very narrow range of purposes.

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