Legal

Gender reassignment surgery as an employee benefit

15 Aug 2019 By Paul McAleavey

Paul McAleavey examines the legal considerations of offering treatment through company healthcare schemes

There is no formal requirement to offer any specific healthcare benefits through corporate healthcare schemes. Most plans only cover elective short-term treatment, but the issues of transgender rights and gender reassignment will become increasingly important.

There are already around 5,000 individuals in the UK with gender recognition certificates who have legally changed their sex – a tiny fraction of the government-estimated 200,000 to 500,000 transgender individuals in the population.

More from this group are expected to seek fertility treatment; there is likely to be a widening definition of procedures seen to be part of gender reassignment, and more employers are likely to want to put themselves at the vanguard of social change by offering this treatment.

When employers are deciding what healthcare benefits to include or exclude they must ensure the access to and level of benefits could not be construed as causing any form of victimisation, harassment or direct or indirect discrimination. Indirect discrimination might affect vulnerable people with protected characteristics defined by the Equality Act 2010. This protected group includes individuals before, during and after gender reassignment.

If an employer decides to offer treatment for gender reassignment, there are 10 core treatments offered by the NHS and a further seven non-core treatments that are not considered essential. The treatment for trans men of building a penis and creating male body characteristics, voice and mannerisms can cost up to £100,000 compared to £70,000 for a male transitioning to female.

There is therefore a risk of discriminating against trans men compared with trans women if a healthcare scheme puts an identical financial cap on benefits.

Employers could also risk inadvertently discriminating against gender dysphoric employees by not considering and carefully aligning all benefits.

Counselling, for example, is excluded from most healthcare plans, but the NHS views it as a core part of the gender reassignment process and there may be a risk of latent indirect discrimination if it is not available.

Equally, offering egg and sperm storage or breast surgery to cisgender employees but excluding such treatments for trans staff would be likely to constitute direct discrimination because of gender reassignment, which cannot be legally justified.

The average length of tenure of any individual in a job is around five years but gender transitioning may take longer than that. Under the Equality Act, former employees may still be able to bring discrimination claims against an ex-employer.

Although there is no free-standing obligation for an employer to continue funding treatment, they should think carefully about what happens with unfinished treatment when employment ends. 

Company healthcare trust schemes commonly include an annual benefit limit or an overall maximum limit, but if an employer states they are not covering gender reassignment on the grounds of cost only it may also be seen as discriminatory. However, if gender dysphoria treatment is not offered because it is outside the overall cost, nature and scope of the scheme, this is more likely to be legally justifiable.

The government recently launched a consultation on reform of the Gender Recognition Act 2004. It is yet to evaluate the responses, but the consultation could result in the process of changing gender becoming a less medicalised and more administrative process. It is currently too early to predict the implications of these developments but they are expected to have profound consequences.

Paul McAleavey is an employment law specialist at Girlings

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