Gender Identity Data In Employment Contracts

According to the Transparent and Predictable Working Conditions Regulations (S.L. 452.126 of the Laws of Malta), the employment contract established by the employer and the employee shall include, at least, the basic details of the employee, including a legally valid identification document number, the address of the employee and, their gender. However, in practice it is rarely the case that the employer stipulates the gender of the employee in the contract of employment. In the same manner, the employer is duty bound to keep a register of the employee's main details, including once again, their gender. The distinction is therefore not very clear, and employers are often misled on what information they may legally request from their employees, and for what reasons.

In article 9 of the General Data Protection Regulation (the GDPR), it states that processing of special categories of personal data, which includes data concerning a natural person's sex life or sexual orientation, is generally prohibited. Nonetheless, special categories of data must be treated with extra protection because it pertains to sensitive data regarding the employee, meaning that employers must do their utmost to take great care with its processing. This type of data is singled out because their use, or rather, misuse, could create risks to an individual's fundamental rights and freedoms.

Applying the Data Principles to Gender Identity Data

In this regard, article 5 of the GDPR sets out 7 key principles related to the processing of personal data of a data subject, which all controllers, including employers, must follow when collecting, and processing the data. These are:

1. Lawfulness, Fairness and Transparency; Processing must have a legal basis under the GDPR, must be fair towards the employee whose personal data is concerned, must avoid being unduly detrimental, unexpected, misleading or deceptive, and must be clear and transparent to individuals and regulators, meaning being concise, easily accessible and easy to understand.
2. Purpose limitation; Personal data must be collected for specified, explicit and legitimate purposes, which are determined at the time of the collection of the personal data, and not be further processed in a manner that is incompatible with those purposes.
3. Data minimisation; Controllers may only collect and process personal data that is adequate, relevant, and limited to what is necessary for the purposes for which they are processed.
4. Accuracy; Controllers must ensure personal data are accurate, kept up-to-date and, where necessary, inaccuracies promptly corrected.
5. Storage limitation; Controllers must hold personal data for no longer than is necessary for the purposes for which the personal data is processed unless it is processed solely for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes.
6. Integrity and Confidentiality; Processing should be in a manner that ensures the appropriate level of security and confidentiality for the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction, or damage.
7. Accountability; Where controllers are responsible for, and must be able to demonstrate compliance with, the other principles of data protection, via internal policies, following code of conducts and/or certification schemes, recording and reporting mechanisms and the like.

Gender Identity as 'Special Category Data'

One must bear in mind that the GDPR states that processing of special categories of personal data, which includes data concerning a natural person's sex life or sexual orientation is generally prohibited, unless it is shown that the special data is needed for any of the below 10 listed reasons.

Also, it is interesting to note that information about gender identity is largely not considered automatically as special data as per the GDPR. The Information Commissioner's Office (ICO) delves into whether the gender identity data is special category data or otherwise, and this namely depends on the circumstances of the information and processing thereof. For instance, information about those who have transitioned or are transitioning between genders, which may also include that the person identifies as non-binary or another gender type, is considered special category data.

The following are the grounds listed in the GDPR for when special category data may be processed:

1. The data subject gives his explicit consent to the processing of the special personal data for one or more specified purposes;
2. The processing is necessary to carry out obligations and exercise rights in the field of employment, social security and social protection law, as authorised by law or a Member State collective agreement;
3. The processing is necessary to protect the vital interests of the data subject;
4. The processing is carried out in the course of its legitimate activities, with appropriate safeguards by a foundation, association or other NGO body or group;
5. The processing relates to personal data which are manifestly made public by the data subject himself;
6. The processing is necessary for the establishment, exercise or defence of legal claims, or whenever courts are acting in their judicial capacity;
7. The processing is necessary for reasons of substantial public interest, based on Union or Member State law which shall be proportionate to the aim pursued;
8. The processing is necessary for preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, for health or social care, treatment, the management of health or social care systems and services or pursuant to contracts with a health professional when such data is processed under the responsibility of a professional, subject to the obligation of professional secrecy under Union or Member State law;
9. The processing is necessary for reasons of public interest in the area of public health, like to protect against serious cross-border threats to health; and
10. The processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.

Delving into Case law – Miss AB v Royal Borough of Kingston upon Thames ¹

Miss AB ("AB") was a trans woman who worked in the transport department at the Respondent Council ("the Council") and transitioned with effect from 1 July 2020, giving her employer 8 months' notice before she did so. Upon her transition, Miss AB adopted a female name and pronouns. However, it took the Council nearly 2 years to put those name changes in place in their systems. This affected her pension records, office door pass, parking permit, email system and the staff directory. She brought a direct discrimination case with the London South Employment Tribunal, which was decided on the 11th of September, 2023, claiming that:

1. The Council, as her employer who failed in their duty of care towards her;
2. The Council had not implemented appropriate policies;
3. They gave her no support in her transition; and
4. There were various depictions of less favourable treatment following her transition.

On transition, AB had adopted a female name and pronouns, rejecting her previous male name and pronouns – and amendments were only made to the Council's records two years after her transition, leading to discrimination with regards to various incidents of deadnaming² and misgendering.³

It was shown that overall, no effort was made to support her and no concern was shown for her wellbeing. No one, including the Human Resources team, ever treated her complaint as a formal grievance. There was a very significant effect on her mental well-being for a comparatively short period of time, which had an impact on her and was part of the cause of her distress.

As a result, the Employment Tribunal awarded a total of £25,423 in compensation⁴, calculated from the date of the first act of discrimination to the date on which the calculation was actually made.

The Employment Tribunal found that the manager's reaction was "more than just unreasonable", and "woefully inadequate" because it was "so extreme", as the claimant was often signed off as sick, suffering "huge stress and trauma" as a result of the bullying; and experienced severe intrusive thoughts. However, the Employment Tribunal did not award aggravated damages since it considered that the overall award of injury to feelings was proportionate to the totality of the suffering caused to the claimant. To award any further damages would have amounted to an unfair case of double recovery.

A Practical guide for Employers to Follow and Implement

Treating gender data as special category data better protects the employee and minimises legal risks for the employer. Essentially, gender data should only be processed when the employer proves that there is a lawful basis for its collection and use, and there exists a special specific condition for its processing, whether authorised by law, any collective agreement or required in terms of public policy.

Employers should not be required to collect and keep record of any special category data which is not necessary for a particular scope and this includes collection of employees' specific gender identity data, which exceeds the traditional gender groups of male and/or female. The rights of the employees are always protected in this sense and in practice, employers locally respect the sensitive and confidential nature that this type of information holds. Employers must always aim to make their employees feel welcome and comfortable at the work place, creating an inclusive and respected ambience for everyone.

The steps that the Council put in place following the Employment Tribunal's decision are good examples of best employment practice to avoid discrimination occurring at the workplace:

1. Being mindful of, and confiscating any existence of discrimination and harassment – When requesting information on gender identity, employers should approach this with great care. This is mainly because it may possibly lead to a case of harassment or discriminatory treatment by the employer due to the demonstration of unjustified distinction, exclusion or restriction based on the person's gender and sexual orientation. Moreover, this adverse treatment must be abolished from the outset, starting from the recruitment process, all the way through the engagement and selection of employees, and during their working arrangements.⁵

1. Having a good Equality Policy in place – Treatment of gender identity data is confidential in nature and formulating a written policy assists employers to better handle and manage recording of sensitive data and personnel documents. Training opportunities and materials in already-existing or else newly formulated equality, harassment and grievance policies would also need to cater for the removal of discrimination in gender identity. Any Equality and Dignity at Work Policy would need to be valid, and then periodically reviewed and lastly kept up-to-date with local legislation to address the rights of protected groups including the right to be free from less favourable treatment.

1. Providing adequate Training – However, it should not stop there; managers and human resources team leaders must be trained and must ensure that they train their employees on the rules listed in their policies. IT and data storing systems should also be adequately educated and trained, even through e-learning methods, to deal with the collection of special data and gender identities, or gender change. This would again be for a simple task such as logging onto a printer at work, or being knowledgeable on which systems store employees' personal data, and ensuring that they can be updated with name/gender changes upon transition.

Conclusion

Addressing gender identity in employment matters combines education, legislation, and proactive policies at the workplace. Employers play a pivotal role in fostering inclusive environments where all individuals, regardless of gender identity, feel valued and respected. It is imperative for employers and their team members to undergo comprehensive education to understand the nuances of gender identity and the impact it has on workplace dynamics.

Moreover, stringent implementation of legislation and better guidance on the matter safeguards the rights of employees and fosters a culture of acceptance and equality. In this manner, employers not only create a more productive workforce but also contribute to a more just and equitable working ambience.

Footnotes

1 You may access the full case here.

2 Deadnaming is the act of referring to a transgender or non-binary person by a name they used prior to transitioning, such as their birth name. Deadnaming may be unintentional, or a deliberate attempt to deny, mock, or invalidate a person's gender identity.

3 Misgendering is the act of referring to someone, especially a transgender person using a word, especially a pronoun or form of address, that does not reflect their gender identity.

4 This amounts to approximately €29,742.

5 Please refer to articles 26-32 of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta regarding how the law protects against discrimination related to employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.