The Information Commissioner’s Office (ICO) has come under criticism after publishing trans guidance that aims to provide support for transgender people. From a Conservative MP to the founder of the Free Speech Union, we explore why this workplace guidance is considered controversial. Then, we discuss the implications of the guidance and whether it affects people’s free speech.
Here at the Employment Law Review, we publish the latest updates in the sector. So, sign up for our newsletter to ensure you don’t miss any future news.
Trans Guidance Criticised by Tory MP
The data watchdog, the ICO, has produced trans guidance aimed at helping their staff, stakeholders and customers. As part of the workplace guidance, it outlines its aims to provide transgender support to those who identify as such. It also offers guidance to people managers and staff handling protected information about transgender individuals.
However, one specific part of the gender support guidance has garnered heavy criticism. That’s because, under section 3.6 of the trans guidance, it states, “ICO Staff can support trans colleagues… by… thinking of the person as being the gender that they want you to think of them as”.
Toby Young, the Free Speech Union founder, questioned the ICO’s legitimacy after explaining their purpose to protect people’s privacy. He went on to question if they could be taken seriously if they’re dictating what employees can think. Mr Young then compared the support for transgender people concerning how individuals think to “telling people they must not commit thought crime” from George Orwell’s 1984.
Additionally, Conservative MP Lia Nici asked why the ICO needs to create guidance to provide transgender support. She reasoned that such individuals already have workplace protection under the Equality Act 2010.
In reasoning their trans guidance, the ICO explained that “treating everyone with dignity, respect, and compassion is fundamental [to their work]”. They added that their policies, like that concerning gender support, reflect their commitment to workplace inclusivity for their employees.
Telling Staff How to Think – Does it Affect Their Free Speech?
When analysing the ICO’s trans guidance, questions about whether it affects freedom of speech have been raised. To try and answer this, it is essential to turn to the aims of the guidance. As mentioned earlier, the ICO outlined that their objective concerning the guidance includes providing support for transgender people.
Then, one could turn their attention to the thoughts of Matt Dean, the founder of work behaviour and culture specialist Byrne Dean. He explained how Byrne Dean talks with employees about employer policies concerning behaviour and workplace harassment. During such talks, he discussed how employees express surprise when he says, “Harassment starts whenever the other person finds something intimidating or offensive”, which could include, for example, discussions about politics.
Mr Dean added how, following this surprise, employees often ask about freedom of speech. To answer such questions, he explained that he would say, “By choosing to work here, you effectively surrendered that freedom”.
This is because freedom of speech effectively enables an individual to express opinions freely, regardless of how it affects others. However, employers have a legal duty of care to protect employees from discrimination at work. Therefore, employers cannot allow complete freedom of speech, as this could lead to them breaching their legal obligations.
As such, whilst some may question free speech in connection with the trans guidance advising how staff think, others may see it as a preventative measure to stop workplace discrimination.
What Should Employers Do?
With the ICO’s trans guidance receiving heavy scrutiny, others may be unsure how to approach the topic. And they aren’t alone, as many recent tribunal cases have highlighted that several employers are uncertain how to approach discussions concerning gender reassignment in the workplace. The problem is that because the topic of gender has been controversial, simply making a policy could lead to scrutiny.
Despite this, it makes sense that employers want to create policies concerning the topic, as it will help staff understand how to act. In turn, this could help employers avoid costly legal battles and lengthy disputes being made against them. Therefore, employers should think carefully about how they construct their policies but shouldn’t be swayed from making them as they could help them remain legally compliant.
We hope you enjoyed this article, and if you did, sign up for our newsletter now. We publish the latest updates in the sector, so doing so ensures you don’t miss future news. Also, if you have experienced discrimination due to your gender reassignment, contact Redmans Solicitors today. They are employment law specialists with years of experience and could help resolve your legal matter.