This blog is long, but here are the headings: Return to work; Being the anomaly in the workplace; Confidentiality and the Gender Recognition Act; Social media; Disclosure; Advice.
Many happy returns!
I had fondly dreamed of a triumphant, joy-filled, regathering with my colleagues, dropping my handbag on my desk and announcing ‘I’m back!’ I mean, is that not how it goes? Not to applause, but at least welcomed back with a sense of belonging?
Well, no. Return has in fact been a very stressful and hurtful time for me. So I thought it may be helpful for you to know a few useful things when it’s your turn to negotiate this – from either side, employer or trans emloyee.
I wish to make it abundantly clear that here, on my blog, I make a point never to name anyone, nor to speak against anyone or any organisation personally, but only to observe as factually as possible, the experience of transition in its many aspects. I do not even identify my place of work on Facebook, where I exchange life with friends. But I do feel there are important principles about being a trans person, and that we must be free to speak about them, share them, improve things for the next generation. This does not make me disloyal or uncommitted in any way, nor do I ever make personal attacks on anyone, even if I were to feel I have a grievance. Even I may have genuinely misunderstood. But I nevertheless feel vulnerable because I know there is next to nothing to protect me, and you should know that too. Our voice is valid, but we are vulnerable.
Being the anomaly
I was reminded (by a trans friend) that we are an anomaly at work, and that therefore we are treated differently. We create an issue simply by having had gender dysphoria, simply for being transsexual. Nobody really knows what to do, what to expect, and they certainly are not going to take our word as the living expert on ourselves, for anything.
If you are trans, you are different, so expect to be treated as if you have a little-understood disability, perhaps like a disfigurement. Yes, HR will go out of its way to protect you from adverse treatment by colleagues. But you in turn must express gratitude for this accommodation. You are the anomaly; don’t assume that the rights you have to equal treatment are simply about human respect. No, any protection or accommodation you are afforded is because your employer will want to protect themselves. And of course they do, quite rightly. But I sort of think I am not just a possession of the organisation, but also a person, and that normal respect applies. That you have a clinical diagnosis of gender dysphoria usually has no bearing on your ability to do your job, and adds no additional special or concessionary management requirements.
Accommodation of your needs at work? You mean acceptance as a real person with equality of treatment? Someone said to me recently that rule number one for the trans person is never to express gratitude, never to apologise for what you are.
In the early stages of transition, awareness helps ensure that there is protection from harassment. After that it is simply not relevant. At the point of surgery, I maintain, it is nobody’s business other than yours and a single point of reference in HR.
At the same time you will quite possibly experience sexism at work. So that means, for the trans person, normal sexism as a woman (or man) plus cis-sexism (i.e. the compartmentalising or othering of trans people as not quite included in the normal world, neither one thing nor another). Expect it; I hope you may be lucky.
Some while ago, and for several months, on top of the normal sexism, I had a female colleague whose questioning, in open plan office, in front of colleagues and manager, was quite intrusive, very personal, and at times disconcerting. I, as you know since you read me here, decided to take it head on, simply to demonstrate that I am just another person, capable of stating my case, clarifying that gender dysphoria is a medical condition, not a behavioural trait, and that in every other respect I am just another woman. I did not silence it, though perhaps I should. I did not complain, though perhaps I should. I do not want special treatment, and I am not a natural complainer, except in cases of real unfairness. Argue my case? Oh yes; but not to create waves or to play games.
As a trans person, you do not need ‘accommodation’. You need fairness and equality. As an employer or HR person, you are not accommodating the trans person. If having a trans person on your staff is an awkward thing, the problem is the people in your organisation, not the fellow human being who is inconveniently not quite like you. Do not see fairness and equality as a special effort you must make, for a person who is ‘difficult’ simply for being misgendered at birth.
Like me, you should indeed be thankful for correct treatment during early transition, and yes, always be thankful for correctness. But gratitude for being treated fairly and equally? Think about this a moment, if you yourself do not have a ‘difference’ of any kind.
- Is your gay or lesbian colleague expected to be grateful for being accommodated in the workplace, for being non-heterosexual?
Point made, I hope.
Confidentiality and privacy: Gender Recognition Act
The first point to understand in the UK is that you have few rights at all until:
- you have lived at least two years in your identified gender
- sworn a declaration
- legally changed your name and title
- supplied documentation proving your medical diagnosis from two qualified professionals
- supplied detailed (intimate) proof of surgery and/or hormone treatment – or jolly good reasons why you have not
- provided documentation in the form of passport, driving licence, bank statements, utility bills, employment documents, wage slips, letters etc., that consistently show your deed poll title over the entire period
- submitted all the above with a fat fee to a panel of experts to express their opinion as to whether you are the gender you identify
- received from the panel, a Gender Recognition Certificate!
It does, however, apply, if your employer knows that you have applied for a GRC. Therefore you must put this intention in writing. Mine was, if I remember right, merely verbal, but we did discuss it and the patronising nature of the process.
Until this point, protection of your personal data, details and status under the Gender Recognition Act need not always apply. After this, records relating to gender change must be sealed. All disclosure then legally becomes entirely your own. But, let’s also be clear, anyone disclosing your gender history who claims they honestly did not know that you had, or had applied for, a Gender Recognition Certificate at the time (I mean, the more you flash it around the more you are telling everybody? Right?) may claim they are not culpable (Gender Recognition Act, Section 22 on data).
If they do know, then clearly disclosing surgical descriptors (i.e. GRS) is disclosing part of your protected gender history.
- Dear HR: please be aware that ‘need to know’ in the case of sickness absence, can be covered by ‘gynaecological surgery’ (accurate and sufficient for all purposes) and that once you state ‘gender reassignment surgery’ you are disclosing the person’s previously assigned gender, and this does contravene the GRA.
See also GIRES on the Gender recognition Act, Section 22.
But you exposed yourself!
I have two levels of expectation about disclosure. Among friends, and here on my blog where everything is explained and contextualised, I am open about gender dysphoria (which I no longer have). At work, in public spaces, in my everyday life, it is nobody’s business but my own. Of course this causes ambiguity, but I do only need to be asked if it’s OK to reveal and discuss my gender! This is called respect.
The same probably applies to very many, probably most, trans people, especially those who have fully transitioned, put it in their past, but wish to remain supportive of others. Few go ‘deep stealth’ (totally invisibly trans), and I am an example of those who are open to talk about it, but for whom it has little to do with everyday life.
If you find me on Facebook, and if you friend me and if I say yes, you will see that I belong to a number of transgender groups, some with closed membership. What a giveaway! I have been open on Facebook to my friends throughout my transition. This is probably true of most trans people.
I write a personal blog every week, to relate this whole journey. What a giveaway! Yes, but if you are reading ‘Observations of gender dysphoria and beyond’ then you are in a context, a serious one that looks not just at me, but the issues surrounding transition. Maybe you have a blog too.
Let me then make it abundantly clear that this does not mean anyone can use it to do anything other than observe that I was born with gender dysphoria. It is not an excuse to disclose anything not essentially and legally necessary to people, as if it were relevant to a situation where it is not.
But of course, with so much social media, everyone is much more personally exposed than ever before, and some employers use it more in order to find evidence against than evidence for. I would bet more people have fished in my blog for comment, or my Facebook pages, than my endorsements and skills on LinkedIn, for example. I’m just saying, be aware.
Disclosure and the law
The question is, just because you are detectably transsexual on social media, does this mean that the Gender Recognition Act protections are done away with? Not quite, but it is there to ensure that information exchanged in the workplace (for example) is strictly on a need to know basis. I shall quote here from the UK Equality and Human Rights website:
Gender Recognition Act 2004
The Gender Recognition Act (GRA) gives legal recognition to transsexual people in their acquired gender.
If an application to the Gender Recognition Panel is successful, the transsexual person’s gender becomes for all purposes the acquired gender and they will receive a full gender recognition certificate (GRC). The GRC allows for the creation of a modified birth certificate reflecting the holder’s new gender.
In specified circumstances the GRA prohibits disclosure of the fact that someone has applied for a GRC or disclosure of someone’s gender prior to the acquisition of the GRC. Such disclosure constitutes a criminal offence liable to a fine.
The privacy provisions apply in most circumstances where the information is received by someone acting in an official capacity. The exceptions are very narrowly drawn, so it should generally be assumed that if you are a employer, manager or colleague; or if you are working in any capacity for an official body or service provider, the law will apply.
Unlawful disclosure applies not only to direct word of mouth communication but also to uncontrolled access to paper or computer files. A transsexual person may consent to you disclosing the information if they decide that it is in their interests to do so. However, such consent must be explicit. It may not be assumed.
As a general rule it is best to agree what to do with information when an employee or service user informs you that they have applied for or obtained a Gender Recognition Certificate. This may often necessitate physically destroying records that reveal inappropriate information, or sealing them for use in specified exceptional cases.
Advice for transitioning at work
I wish I had read all this before, but there are some definite points for attention, if you are heading this way:
- Be crystal clear, in writing, about your preferences regarding who can know what, and at every stage. What you are prepared to disclose when you are obvious (coming out, early days, or with an existing employer) is not the same as being at the point of surgery or beyond.
- Give this information to the most senior person in charge of personnel records, explaining helpfully.
- Let your HR contact know each stage you are at, because this alters things: intention to transition, engagement with clinical services, diagnosis, intention for surgery, application for a GRC – everything.
- Ensure that any documents that may reach other than your HR contact do not disclose anything unnecessary for the purpose. For example, my hospital sicknote simply stated ‘Surgery’ as the reason, whereas my GP’s fit note clearly stated ‘Gender Reassignment Surgery’. (I was told this had subsequently been seen other than by HR.)
- No-one wants to be paranoid, but like me you could end up feeling quite distressed if anything goes wrong. Therefore keep records, and if necessary record communications.
- Be very factual. Grievances are not about stories, they are about actions. They are not personal either, they are administrative, for which people hold responsibility.
- Assert, don’t argue. You may well hit a wall. Speak to it, don’t hit it. I hate bureaucratic justification and it raises my hackles every time. But it doesn’t help. If you have done the above, and if you have a grievance, state it clearly and back it up. Even if you do not wish to make an official complaint about it.
I wrote this piece because I could not see the relevance of the nature of my surgery to my return to work under a new line manager. My surgery was disclosed, and I observed that no woman in the organisation would wish the nature of her gynaecological surgery to be disclosed to a male manager, unless that detail was directly and specifically relevant to her ability to resume her work (i.e. cover the employer’s liability).
The complicating factor here is that post-surgical maintenance for gender surgery needs initially to be done three times a day. This requires privacy and washing facilities, and if not available at your place of work, you will need to negotiate working from home, at least to cover a mid-day half hour. Now this does not take a lot of imagination as to exactly what you are doing, so how do you request a degree of working from home for a short period (so you don’t need to stay off sick longer than absolutely necessary)? For me it is perfectly sufficient for any manager to know that you have had surgery, need a recovery period, and can return to work making allowances (lifting, maintenance etc.) for confidential reasons.
Am I right? Please tell me if I am not, especially if you are in HR, and I can correct this blog and this advice.
Back to the post-operative maintenance: by telling anyone else in the organisation that your surgery is gender-related, immediately tells your manager (what, a man?!) that you wish to work from home in order to dilate your vagina!
This is why extra sensitivity is required by HR when deciding just how relevant it is to tell another member of staff that the nature of your surgery was to do with your genitals. I don’t care how understanding or empathic the man in my office is, or how discreet he may subsequently be. It is none of his business; it is intimate and personal to me, and most of all, it has no bearing on my work situation whatsoever.
Please, so that you do not suffer the same distress, explain this to your HR contact well in advance, otherwise these unnecessary accidents will happen.
Phew! Finally … If you are in UK HR, and anything I have said is inaccurate in its interpretation, find me on Facebook and tell me so that I can correct it. If you have useful things to add, please also find me and tell me. We all need to know these things and ensure better handling than I feel I experienced.