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Sick Pay after Gender Confirmation

I am proposing a trans-inclusive gender identity policy be implemented in my organisation but here is a big question that is right now causing some debate, I'd be grateful for your input! If a trans employee decides to transition and to have gender confirmation surgery (just as an example) that results in 6 months of sick leave (surgery, recovery, complications) this would be covered by their sick pay. If, after they return to work they become sick with illness not related to their gender identity (like pneumonia) they would need more sick pay, but their allocation has been used up. As an organisation, would we be expected to extend or cover their sick pay? If we didn't would it be considered discriminatory, because a non-trans employee would not have required gender confirmation surgery? It's a new area we're exploring and I want to make sure we're meeting our legal obligations while being supportive to employees.
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  • Surely if you are doing this the point is to give them extra sick leave for this purpose? If all you are doing is replicating their already existing sick leave then where's the benefit/point?

    I do not believe such a policy would be unlawful and even if it technically was then I think its possibly worth doing for the small number of cases it will apply to
  • In reply to Keith:

    Hi Keith, the point of the policy is not necessarily to provide additional leave, but rather primarily to provide guidance for transitioning employees, their line managers, and their colleagues.

    Are you suggesting that the best course of action would be to cover any additional sick leave required? How would this impact another employee who required sick pay for more than 6 months but for a reason other than gender confirmation? What is the opinion on treating these two hypothetical employees differently?

    I agree it will be a small population, by my estimate we will have 14 gender non-conforming employees in the organisation and not all will exhaust their sick pay entitlement or even transition.
  • In reply to Lizzy:

    Lizzy

    At the end of the day you as a business have to decide your own priorities. There is no right or wrong answer here.

    You can say its normal sick leave or you can be more generous. If you are more generous then I think this can be justified in the circumstances. But thats a policy decision for you and how it fits into your general approach to D&I etc. Clearly if thats not in keeping with your approach you shouldn't do it.

    Keith
  • In reply to Lizzy:

    What would your approach be for any other elective surgery that may use up the usual sickness entitlement? (I say elective as surgery/medication etc. is widely accepted now to not be required to fully transition)

    I think I'd start from there?

    Thinking on this further, given surgery or any medical intervention isn't required to transition, I wonder if a company may find themselves in trouble if they enhance sickness entitlement to cover additional absences for someone who has had surgery, but not for someone who has perhaps exhausted their sick pay entitlement due to other factors relating to their being transgender?
  • In reply to Samantha:

    Sam raises some important points about "other" elective surgery. If you want to extend your reflections, then consider how you would treat absences for elective surgery for non transgender people - there's an argument that these people too are seeking to align their inner vision of how they want to be with a modified physical reality........
  • In reply to Ray:

    Its an argument but not necessarily (in my opinion) a strong one when take against the significant life changes that transgender people are going through.

    Going back to the original question - its entirely a case for what you see as being important as part of your internal policy. Clarifying that the rules remain the same or extending them. Neither is right or wrong but both send out a message.
  • In reply to Keith:

    Its subjective isn't it. Various injuries can cause severe long lasting mental and physical health conditions that don't quite meet the threshold for NHS treatment so the person goes private for elective etc. So to that individual, an elective operation can be just as vital in terms of quality of life as elective surgery to transition.

    The menopause for instance, can exacerbate BPD or psychosis, or she may suffer from umpteen complications relating to her uterus, so the woman may elect for a hysterectomy to vastly improve her quality of life, but hysterectomies are not without their risks. There is a male 'version' of this that I believe can affect men as they too get older, but I will spare my blushes :)

    Both a significant life change, both equally important to the individual.

  • In reply to Samantha:

    Indeed it is subjective and I wouldn't argue against any organisation that looks serious at the menopause and considers what it can and should go to support women going through it.

    How ever on simple statistics it may be possible to be more generous for a very small group of employees but not being able to extend that to a far wider group. But that shouldn’t stop support for the smaller group if that’s all you can do.
  • In reply to Samantha:

    It's my understanding that gender reassignment surgery should not be treated the same as elective/cosmetic surgery.
    I agree that it would have to cover sick leave for any reason relating to their gender identity. Surgery was the example I used as it's easy to see how it could lead to extended leave.
  • In reply to Lizzy:

    Agreed (I think, I've not actually seen that outlined anywhere but would agree with this, I used the term elective because as I say it is accepted now that surgery isn't and shouldn't be required for someone to be considered as transitioned), was just giving what my approach would probably be if I was looking into this as I would consider others who do have elective surgery as a result of an impact on their quality of life or mental health too, or a potential risk, another example could be a female with a history of breast cancer in the family who wants a mastectomy or male with similar mainly male related cancer history/risk. And if its from a D&I approach, would you also want to consider extending it for anyone who may suffer from conditions that typically affect certain races or ethnicities more than others?

    I suppose I'd just want to try to avoid being in a position where the company was choosing which circumstance is more worthy, as they all have potential to be argued that they come under some sort of discrimination banner possibly? And would be equally important, and potentially with equal stakes in terms of physical/mental health to the individual.

    Plus, there are non-binary employees to consider as some feel they are classed as transgender, and some don't, but they may still face the same issues requiring sick leave over and above your usual policy, so any policy extending sick leave would, I think to be on the safe side, have to include those too but worded carefully so it doesn't indicate that they must be transgender (or have had surgery as above) to qualify.

    As someone can self-identify, would you also set some sort of time-frame on when the person would be eligible? Could you legally? I only say this as I can think of one ex-colleague who was a horror, with a questionable absence record and litigious, who would absolutely take advantage of this sadly.

    As Keith says, the number will be small in all of these cases, so is it worth covering all eventualities?
  • In reply to Samantha:

    There have been many people who responded to Black Lives Matter by saying, “All lives matter”. Of course they do, but the point is that we have acted as if they didn’t. The corrective action is needed to re-value black lives, not white lives.

    As someone put it to me, it’s their house which is on fire.

    Likewise, trans people have suffered all sorts of bullying, misunderstanding and oppression. Their house is also on fire so that’s where we need to send the fire engines.
  • In reply to Elizabeth:

    I like that analogy, and so fitting for the All Lives Matter brigade!

    Using the fire analogy here in a HR context looking to develop an enhanced sickness policy to support those who need it most, I'd consider asking the fire service, once they have sorted the house that is ablaze and made sure that everyone is safe there (decided there is a need for a policy and its main purpose for existing), to check on a couple of the neighbours too as a precaution (consider if, particularly if its from a D&I perspective, there are any other groups of people that may benefit from being 'boosted')

    So not diverting the fire engines away to blast the entire street as with the All Lives Matter trope, more asking them to do a few mins extra checks on a couple of others close by whilst they are here.