SG trans policy and guidance review 2021/2022: equality impact assessment

Term “assigned gender” removed

Positive impact on fostering good relations for protected characteristic of sex and philosophical belief.

Re-defined “gender reassignment”. Replicated the Equality Act 2010 definition. Decided against describing “gender reassignment” as contentious. Explained that policy and guidance use transition / transitioning or gender affirming / affirmation as these terms are often more inclusive.

• Positive impact on trans colleagues (‘gender reassignment’ in the context of the Equality Act 2010) re: eliminating discrimination, harassment and victimisation and fostering good relations.
• Positive impact on fostering good relations for protected characteristic of sex and philosophical belief

“sex assigned at birth” retained, rather than changing to “gender assigned at birth” as was suggested.

Considered a common way of explaining trans issues and not considered to have a detrimental impact on other protected groups. Positive impact on fostering good relations for protected characteristic of sex and philosophical belief.

Re-defined Transgender/Trans.

Positive impact on the protected characteristic of ‘gender reassignment’ re: eliminating discrimination, harassment and victimisation. Improved definitions and explanations likely to have a positive impact on fostering good relations between people who are trans and those who are not.

Re-defined Transitioning.

Decided against removing “gender dysphoria” from definitions as feedback from trans & non-binary colleagues was that it is useful to trans staff not having to explain gender dysphoria.

Re-defined “gender identity”.

Amended the explanation of the Gender Recognition Act 2004.

Amended the explanation of a Gender Recognition Certificate. Reinforced that an individual does not need to hold a GRC in order to have their details changed on any workplace system.

Expanded “Intersex” to “'Intersex’, ‘Variations in Sex Characteristics’, ‘Differences in Sex Development’” based on policy advice that ‘intersex’ alone did not cover the full breadth of experiences and conditions.

Decision made to be explicit that the protections set out in this policy and associated guidance apply to employees who are intersex or have VSC/DSD, whether or not they identify as trans. In arriving at this decision we considered that from a legal perspective intersex is not a protected characteristic under the Equality Act 2010 and does not fall within “sex” or “gender reassignment”. However we consider that as an employer this does not mean that employees who are intersex or have VSC/DSD cannot form part of the SG’s trans equality and inclusion policy as long as by protecting an intersex person we haven’t discriminated against someone with a protected characteristic such as sex. We could not identify any such possibility within the provisions of the policy or guidance. We considered that given ‘I’ is so widely accepted as part of ‘LGBTI’, people who are intersex or have VSC/DSD would naturally look to a trans equality and inclusion policy for support and guidance. We also considered that the definition of harassment in the Equality Act 2010 includes harassment based on the perception that the individual has a protected characteristic. So, if an individual was subject to such behaviour because they were thought to have the characteristic of “gender reassignment then this would offer them another avenue of protection.

Re-defined non-binary. Non-binary people were already covered by the existing policy and the groups agreed that there was no desire or discussion to be had about them not being covered by the policy. SG’s position as a progressive employer is to advance equality and inclusion for non-binary people.

For completeness: in arriving at this decision we considered that from a legal perspective non-binary is not a protected characteristic under the Equality Act 2010 and does not fall within “sex” or “gender reassignment”. However we consider that as an employer this does not mean that they cannot form part of the SG’s trans equality and inclusion policy as long as by protecting a non-binary person we haven’t discriminated against someone with a protected characteristic such as sex. We could not identify any such possibility within the provisions of the policy or guidance.

We also considered that the definition of harassment in the Equality Act 2010 includes harassment based on the perception that the individual has a protected characteristic. So, if an individual was subject to such behaviour because they were thought to have the characteristic of “gender reassignment” then this would offer them another avenue of protection.

Re-defined “Gender expression”.

Added “Gender affirming” to the guidance document glossary of terms.

Added “pronouns” to the guidance document glossary of terms.

Added “Cisgender/Cis” to the guidance document glossary of terms. This provides a helpful alternative to “non-trans”. It is acknowledged that this term is not accepted by some groups and is considered to have a negative impact on the protected characteristic sex and/or philosophical belief. In recognition of this, the definition includes the statement “A person’s self-description should be respected above any guidance in this document” which is considered to mitigate any negative impact.

• Positive impact on the protected characteristic of ‘gender reassignment’ re: eliminating discrimination, harassment and victimisation and fostering good relations.
• Potential for negative impact on the protected characteristics of sex and philosophical belief particularly in relation to fostering good relations. However, this negative impact is considered to be sufficiently mitigated.

Eliminating unlawful discrimination, harassment and victimisation

Yes

No

No

The policy sets a zero tolerance approach to bullying, harassment and victimisation and sends clear messages about trans people being welcome in the organisation. Research shows that creating this sense of belonging is important to reducing the rate of suicide amongst young LGBT+ people.

Advancing equality of opportunity

Yes

No

No

Clear commitment to trans equality and inclusion positions SG as a welcoming employer which could increase applications from young trans people (young people overall are underrepresented in SG).

Promoting good relations among and between different age groups

No

No

Yes

The policy has the potential to raise awareness among different age groups of the barriers faced by trans people.

Eliminating unlawful discrimination, harassment and victimisation

Yes

No

No

• Provisions and protections of this policy will have a positive impact on colleagues who may have conditions arising from or associated with gender reassignment which amount to a disability under the Equality Act 2010. Evidence suggests that proportionately more trans people are disabled or? have a mental health issue (self-disclosure) than in the general population.
• A trans person’s sense of belonging and being valued for who they are, as provided in the policy & guidance, may improve their mental health. Provision support to transition in the workplace and creating safety to do so as this policy and guidance provide for will help resolve distress and mental health issues.

Advancing equality of opportunity

Yes

No

No

• Provisions and protections of this policy will have a positive impact on colleagues who may have conditions arising from or associated with gender reassignment which amount to a disability under the Equality Act 2010.
• The policy and guidance recognise that trans colleagues may require workplace adjustments and makes an explicit expectation that managers will support colleagues to ensure they are understood and implemented.

Promoting good relations among and between disabled and non-disabled people

Yes

No

No

• The policy has the potential to raise awareness, challenge stigma and increase trans inclusion for both disabled and non-disabled trans people, thus promoting better relations between disabled and non-disabled people in general.

Eliminating unlawful discrimination

No

No

Yes

The trans policy and guidance is not considered to have a positive or negative impact on eliminating discrimination for men and women.

Advancing equality of opportunity

Yes

No

No

Policy and guidance state that where a dress code is stipulated, it will be gender neutral or that gender neutral options will be available. They also commit SG to using “inclusive and non-gendered language wherever appropriate in policy and other Government communications”. Both of these provisions are anticipated to have a positive impact on equality between men and women more generally.

Promoting good relations between men and women

Yes

No

No

Removing the term “assigned gender”, and retaining “sex assigned at birth” rather than changing to “gender assigned at birth” and deciding against the proposal to describe gender reassignment as “contentious” is likely to have a positive impact on fostering good relations for protected characteristic of sex and philosophical belief.

Adding cis/cisgender to the glossary has the potential for negative impact on the protected characteristics of sex and philosophical belief particularly in relation to fostering good relations. Some groups consider cisgender/cis to be a slur. In recognition of this, the definition includes the statement “A person’s self-description should be respected above any guidance in this document” which is considered to mitigate any negative impact.

Eliminating unlawful discrimination

No

No

Yes

The need to eliminate discrimination based on a person’s pregnancy or maternity status does not apply to this policy.

Advancing equality of opportunity

No

No

Yes

The need to eliminate discrimination based on a person’s pregnancy or maternity status does not apply to this policy.

Promoting good relations

No

No

Yes

The need to eliminate discrimination based on a person’s pregnancy or maternity status does not apply to this policy.

Eliminating unlawful discrimination

Yes

No

No

In addition to the considerations set out above, the policy and guidance:

• Adopts a clear zero tolerance stance towards discrimination, harassment and victimisation on the grounds of gender identity or transitioning, and places expectations on all staff to challenge any evidence of such behaviour. It states that SG will ensure that our grievance, conduct and harassment policies explicitly include respect for trans colleagues, and take appropriate action to address discrimination, harassment or victimisation on the grounds of gender identity, expression or reassignment under the appropriate policies.
• Provides for medical appointments related to transitioning to be recorded as “miscellaneous” to protect confidentiality.
• Provides that an employee does not need to hold a GRC in order to have their details changed on workplace systems.
• Places expectations on staff to treat trans identity, previous names, and transition-related activities including but not limited to medical treatment as though they are special category data under the Data Protection Act 2018.

Advancing equality of opportunity

Yes

No

No

In addition to the considerations set out above, the policy and guidance:

• Provides that all periods of absence resulting from transitioning will not be considered when reviewing poor performance issues or count as poor attendance.
• States that a member of staff transitioning may request to have a change in their duties, but they should not be expected or required to do so.
• States that SG will ensure trans colleagues are empowered to influence Scottish Government workplace strategies, policies and processes to ensure they reflect and meet diverse needs; and that SG will remove any barriers that prevent staff from accessing support from the employer.
• States that where a dress code is stipulated, it will be gender neutral.

Promoting good relations

Yes

No

No

In addition to the considerations set out above, the policy and guidance:

• States that SG will provide training and other learning opportunities to staff to increase awareness and understanding of the issues faced by trans people.
• Places expectations on staff to familiarise themselves with the policy and procedure.
• Makes explicit the roles of LGBTI+ network, Allies Network and senior Champion and ET Ally.
• Commits SG to using “inclusive and non-gendered language wherever appropriate in policy and other Government communications”.

Eliminating unlawful discrimination

No

No

Yes

The policy and guidance are not anticipated to have any impact, positive or negative, on people because of their sexual orientation.

Advancing equality of opportunity

No

No

Yes

The policy and guidance are not anticipated to have any impact, positive or negative, on people because of their sexual orientation.

Promoting good relations

No

No

Yes

The policy and guidance are not anticipated to have any impact, positive or negative, on people because of their sexual orientation. There may be a slight positive impact because the glossary in the policy explains that sexual orientation is different from gender identity.

Eliminating unlawful discrimination

Yes

No

No

External data on the experiences of trans minority ethnic people shows that this policy, which specifically prohibits discrimination, harassment, victimisation or bullying of trans colleagues, has the potential to have a positive impact on trans employees from minority ethnic backgrounds.

Advancing equality of opportunity

No

No

Yes

The policy and guidance themselves will not produce a positive or negative impact on race.

Promoting good race relations

No

No

Yes

The policy and guidance themselves will not produce a positive or negative impact on race. There is the potential for a positive impact on race if an intersectional approach is taken to communicate/promote this policy and guidance and develop learning materials which build empathy and understanding of being trans and minority ethnic.

Eliminating unlawful discrimination

No

No

Yes

Gender critical beliefs are protected philosophical beliefs under the Equality Act 2010. The policy and guidance themselves will not produce a positive or negative impact on religion or belief. Recognising trans rights in the workplace does not diminish the rights of employees to hold any religion or belief or none. There is no evidence that this will result in unlawful discrimination against employees who hold a particular religion or belief or none.

Advancing equality of opportunity

No

No

Yes

Recognising trans rights in the workplace does not diminish the rights of employees to hold any religion or belief or none. There is no evidence that provisions of the policy and guidance will have a negative impact on equality of opportunity for employees who hold a particular religion or belief or none.

Promoting good relations

Yes

Yes

No

Gender critical beliefs are protected philosophical beliefs under the Equality Act 2010. Removing the term “assigned gender” and deciding against the proposal to describe gender reassignment as “contentious” is likely to have a positive impact on fostering good relations for protected characteristic of sex and philosophical belief.

Adding cis/cisgender to the glossary has the potential for negative impact on the protected characteristics of sex and philosophical belief particularly in relation to fostering good relations. Some groups consider cisgender/cis to be a slur. In recognition of this, the definition includes the statement “A person’s self-description should be respected above any guidance in this document” which is considered to mitigate any negative impact.

The Scottish Government appreciates that some religious bodies may have concerns on societal or doctrinal grounds to the concept of gender reassignment and transitioning. There are exceptions in the Equality Act 2010 which relate to occupational requirements and religious requirements.

Paragraph 2 of schedule 9 of the 2010 Act relates to religious requirements, and covers a range of employment and office holders in organised religion, such as ministers of religion and some lay posts that promote and represent religion. If the criteria are met, it is possible to refuse to employ a trans person in these posts.

Paragraph 3 of schedule 9 relates to other requirements relating to religion or belief, where, if the criteria are met, it is possible to refuse to employ a trans person for the work.

Eliminating unlawful discrimination

Yes

No

No

The policy and guidance provide for trans colleagues to change their personal details on HR / IT systems. This includes titles. This has the potential to have a positive impact on a trans employee should they marry or enter into a civil partnership.