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Farrer & Co | LGBT rights in the workplace: what next?

This month marks the 50th anniversary of the Sexual Offences Act 1967, which decriminalised homosexual acts in England and Wales. Since then, it appears that the legal rights of lesbian, gay, bisexual and trans individuals have improved considerably; in this century alone, the age of consent for homosexual men has been lowered to 16, civil partnerships and same-sex marriages have been introduced, and discrimination, harassment and victimisation on the grounds of sexual orientation have been prohibited.

However, the fact remains that sexual orientation and gender reassignment are relatively new diversity issues and, as can still be seen in relation to gender and race, in some respects society is taking a little while to catch up.

Here are a few thoughts about areas in which progress could still be made:

1. Bullying and harassment

These remain significant issues for a lot of LGBT employees. For example, a recent YouGov survey found that one in five LGB employees have experienced verbal bullying at work because of their sexual orientation, with almost a third of such bullying having been carried out by the employee's manager. For trans workers, the reported harassment figure is much higher, at 60%.

It is quite possible that leaps and bounds will be made in this respect (just witness the recent explosion in corporates tying products into 'Pride' events – rainbow-filled Oreos, anyone?); but the statistics show that there is still much work to be done by employers – whether that is in taking the first step of simply encouraging diversity, or the more advanced steps (such as training and monitoring) involved in maintaining and protecting diversity.

2. Trans issues

Many employers are yet to put in place detailed policies and procedures addressing trans issues, and even where such policies and procedures are in place often they remain untested in practice.

Whilst practice may make perfect, Tribunals are unlikely to be sympathetic to an employer citing inexperience as justification of unlawful conduct. Therefore, employers would be well advised to ensure that trans issues are addressed in their diversity programmes to the same extent as any of the other diversity strands, to ensure that any necessary shifts in cultural and organisational attitudes are in train.

3. Recognition of the diversity present under the LGBT 'umbrella'

Over the years, LGB has become LGBT, LGBT has become LGBTQ, LGBTQ has become LGBTQI+; yet even just scratching the surface would show that trying to assign a single label to such a diverse group is simply not possible.

One question which is being increasingly posed is whether it is appropriate to bundle up trans and intersex issues (being related primarily to gender) with lesbian, gay and bisexual issues (which are related to sexuality). When news emerged last year of (openly transgender US celebrity) Caitlyn Jenner's opposition to gay marriage, a number of commentators took the stance that she was somehow 'betraying' the cause, yet it simply goes to show that there are different strokes for different folks and that it is a dangerous assumption that, for example, an L and G issue automatically aligns with a T issue. Furthermore, it is clear that even within each distinct community – whether that is L, G, B, or T (or Q or I or + for that matter) – different perspectives on the same issue will exist. For example, there was lively debate within the L and G communities as to whether gay marriage was necessary or desirable ahead of the Parliamentary vote on the issue.

From a practical perspective, these issues provide some food for thought as to how 'mainstream' society (whether that is lawmakers, employers or otherwise) should approach such a diverse group with such diverse interests. I won't even try to provide reductive answers in such a short post, but it may be worth considering an issue that is likely to be more immediately relatable to many of us – whether it is fair to approach all women as potential mothers (do not all women and indeed employees deserve paid time off to pursue their life goals, whether that is raising a child or otherwise?) – to see the complexities involved.

4. Language

It may seem like a minor point, but the daily subtleties of language can in many cases prove to be the most troublesome.

The terminology in this area is developing and expanding at an exponential rate. Non-binary, genderqueer, cisnormativity, gender fluidity: these words and phrases (and many, many others) are starting to take hold within the communities to which they apply, and they will require all of us – employers and colleagues alike – to learn and adapt. At times, even I've wondered whether (and if so, where) it will all end – but as with anything new, some thought and sensitivity will often go a long way.

Alternatively, just contact your lawyer (hint: contact details below).

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