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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Tuesday, April 18, 2006

News: London seeks transgender figures

Suppliers working on contracts to renovate London have been asked to provide extensive details about their workforces, including the number of transgender staff they employ. The London Development Agency move is part of a wider government drive to increase gender and ethnic diversity among its suppliers. Questions include the percentage of staff and company owners who are from black, Asian or minority ethnic groups and the percentage of disabled employees, as well as the number of lesbian, gay, bisexual and transgender staff.

This task is likely to be complex for London HR personnel. The questionnaire asks "What is the % of Lesbian, Gay, Bisexual, Transperson (LGBT) staff in your company workforce?" It defines "transpersons" as "people who have the desire to live and be accepted as a member of the opposite sex ." Measuring that desire is not easy because most transgender persons do not reveal it to their employers until they choose to transition from one gender to another. Once they have transitioned, they may choose to live in their new gender without revealing the fact to new employers. In addition, the English laws contain provisions that further complicate matters.

According to Dr. Stephen Whittle, a professor of law at Manchester Metropolitan University, the Gender Recognition Act of 2004 (GRA) allows transgender employees to obtain a "Gender Recognition Certificate" from authorities, requiring employers to recognize a change in gender. The certificate can be obtained upon a showing that they have been diagnosed with "gender dysphoria" (in the US, generally referred to as "gender identity disorder") and have lived in their new role for at least two years, or have had sex reassignment surgery. However, it also makes it a crime, with a fine of up to £5,000, to disclose that a person has a Gender Recognition Certificate. It is a strict liability offense, so 'reasonableness' is not a defense. In addition, a transgender person is not obliged to disclose whether they have obtained a certificate. Another law, the Data Protection Act, requires that information should only be retained while it is relevant. Keeping a copy of the Gender Recognition Certificate in the employer's files may violate the law if the file is accessed by unauthorized personnel.

As a result, HR personnel may not know if a person is transgender, or has obtained legal gender recognition. It is likely that the numbers will reflect fewer transgender personnel than actually exist.

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