Andrew Spearman is an award-winning lawyer and director of A City Law Firm. In the below opinion piece, Spearman discusses transgender rights and some of the complex issues that someone may face when transitioning. These include changing chosen names and going through a transition in the workplace.
For people who know me, they will be unsurprised to learn that I have a soft spot for a good, strong, slightly power-ballad based, musical and ‘The Greatest Showman’ was no exception to this rule. I was drawn to the lyrics from ‘This is Me’ particularly and, in the face of adversity and the immensely difficult process of understanding and accepting it themselves first, transgender people are no longer scared to be seen and nor should they make any apology for it.
From starting the gender reassignment to completion, their entire world is affected: their family; their education; their work. For some, this is all too much, and it is distressing to see how a lack of support and understanding can lead to the most horrific outcomes. Children who are transitioning face an even more specific challenge of both their own rights to express themselves against parental wishes and how schools should approach the matter. A recent complaint involved girl guides who didn’t disclose a trans girl’s status to other parents before an overnight trip.
In 2012, the Equality and Human Rights Commission undertook a survey over 10,000 people and this showed around 1% were dealing with gender variance to some degree or other. While not all of those people would necessarily lead to gender reassignment, it follows that there will be a lot more than you realise.
In the workplace, the Equality Act 2010 protects individuals from discrimination based on their gender reassignment or the process of reassignment. Although each workplace is different any may have practical reasons for treating people differently, it has to be for a justifiable reason. When those reasons are based on your transgender status they are almost never justified. For example, failing to promote a transgender person over a cisgender person purely because of their transgender identity or practices (direct discrimination) or a blanket ban on working from home despite a transgender person requiring working from home arrangements following or prior to sensitive treatments as part of their transition (indirect discrimination). This protection starts from the moment you start your transition onwards and you do not need a Gender Recognition Certificate.
The Gender Recognition Act 2004, while heavily criticised and the review having effectively stalled, it gives specific protections on the disclosure of materials to your employer about your gender identity.
For adults, changing your name in the UK is a fairly straightforward and inexpensive process. The two main routes are either by deed poll or by a statutory declaration. The latter is the most common and it only costs around £5 to have it witnessed by a solicitor. It needs to be in a specific format, but this can be downloaded from the gov.uk website with guidance notes.
Children changing names is a little more complicated. If their parents are agreeable, then the process can be as simple as above. If there is any problem or the child cannot tell their parent, they will not be able to legally change their name until 16 without a court order. Informal settings, such as schools discussed below, may provide alternative solutions though.
Schools are subject to the Equality Act 2010 as well and cannot discriminate on grounds of an individual’s gender reassignment. For employees, the above work protections apply but for children who seek to have gender reassignment then there are a number of other critical duties for schools to consider including the safeguarding and welfare interests.
On the one hand, they may not conflict and actually assist. For example, on the option to change their name, where the child is older and mature enough to make decisions about their name then the school may decide to change their register. It is possible for exam certificates to be issued in the preferred name of the child but difficulty still arises with their ‘Unique Pupil Number’ which will remain linked only with the child’s legal names.
Conversely, a child may disclose to the school in confidence their wish to be recognised in a different gender and the school must balance this against the child’s welfare and best interests. Although the child may not want their parents to know, where the child may not yet have the fullest capacity but still have concerns about not changing the name on the record, the parents/carers may be informed. This is more likely to be the case where failing to change the name or gender could lead to real and immediate harm to them.
School professionals, as with anyone else reading this article, need to be both sensitive and alert to the real mental distress and harm caused by misgendering a child. As they grow and develop a sense of self-awareness and identity, the society around them could so easily either support or cripple them. You may never know you have met a transgendered person. You may never have to face the issues above yourself. But you should be prepared for it and understand that a little empathy and understanding can make a powerful change to someone’s life.
“I am who I’m meant to be, this is me
Look out ’cause here I come
And I’m marching on to the beat I drum
I’m not scared to be seen
I make no apologies, this is me”
~ This is Me, The Greatest Showman