Gender reassignment discrimination update

20 Sep 2017 By Enrique Garcia

Enrique Garcia rounds up the latest developments and offers tips on how employers can avoid claims

In the UK, section 7 of the Equality Act 2010 protects anyone who is transgender or planning to undergo gender reassignment. The World Health Organization recognises gender dysphoria or gender identity disorder as a psychiatric disorder. Accordingly, transexualism is defined as: ‘A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.’

For legal purposes, this is called gender reassignment and the law has identified and accepted four main stages of gender reassignment:

  1. Psychiatric assessment
  2. Hormonal treatment
  3. A period of living as a member of the opposite sex, known as the ‘real-life test’
  4. Gender reassignment surgery where this is suitable

The law protects employees at all stages from:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation

There is an additional protection relating to absences for those employees who are proposing to undergo, currently undergoing or have undergone gender reassignment. However, this is not like pregnancy-related absences where an employee is automatically entitled to have such absences disregarded. For those seeking protection for gender reassignment, the additional protection prevents less favourable treatment because the absence relates to gender reassignment. This involves a comparator and is therefore not automatic.

For example, if employee A is dismissed for 10 absences and employee B is dismissed for 10 absences but five of those absences relate to gender reassignment, then employee B may struggle to bring a claim. Employee B has not been treated less favourably than employee A because they have both been dismissed for having 10 absences. However, the employer must show that it is reasonable to treat employee B no less favourably than employee A, which is a low test for an employer to pass. In real terms that means an employer must show why they haven’t given special treatment for gender reassignment absences and they must show that their justification is reasonable.

Avoiding claims

Some practical steps that employers can take include ensuring that employees are able to wear clothes appropriate to their expressed gender and allowing them to use toilet facilities appropriate to their expressed gender.

These steps are particularly important when the employee enters the real-life test stage of gender reassignment. There is no set date or stage during the reassignment process when a person’s gender changes and each person will find it appropriate at different stages in the process to use facilities for their expressed gender. Employers and employees should work together to find an appropriate transition process, taking into account the stage of treatment reached, together with the employee’s own assessment and presentation to the world of their expressed gender. Some may do this fairly early in the process; others may prefer to do it later on.

Case law

Case law has changed very little since the introduction of Equality Act. There have been no real game-changing or landmark cases since Bisson v Condor Ferries in 2016. The tribunal in this case upheld a claim of direct discrimination by a transgender passenger against the cross-channel ferry company that had advised her to use the disabled toilet when she asked which facilities to use. Toilet signs with the words ‘ladies’ and ‘gents’ were also found to indirectly discriminate against transgender customers, and so the tribunal ordered the company to use symbols instead of words on its toilet signs. The case was heard in the Channel Islands and does not affect UK law but may serve as good guidance for employers.

This lack of recent case law is good news as it shows an acceptance of gender reassignment in society and the protection that transgender people are given by the courts. It means the law on gender reassignment is well understood and, while disputes remain, the courts are enforcing the law without errors requiring lengthy appeals to enforce rights. The groundbreaking rulings of P v S and Cornwall County Council in 1996 and Croft v Royal Mail Group in 2003 remain in full force and are the prevalent pieces of litigation in gender reassignment law, even though they pre-date the updated protections of the Equality Act.

Enrique Garcia is an employment law consultant and advocate with ELAS

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