Gender Reassignment Discrimination Examples In The News
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:
- Psychiatric assessment
- Hormonal treatment
- A period of living as a member of the opposite sex, known as the ‘real-life test’
- Gender reassignment surgery where this is suitable
The law protects employees at all stages from:
- Direct discrimination
- Indirect discrimination
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.
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 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
It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.
The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).
The Equality Act 2010
Discrimination under the EqA 2010
The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.
Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.
A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.
There are five types of prohibited discrimination in respect of gender reassignment:
- Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
- Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
- Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
- Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
- Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people
One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc , the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.
However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.
Exceptions: when gender reassignment discrimination may be lawful
Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.
Application to the NHS
In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.
However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.
NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.
Gender Recognition Act 2004
The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.
Prohibition on disclosure of information
The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.
An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee's personal file, disclosing the fact that the employee was born a different gender, without the employee's prior consent.
There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.
In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.
Practical considerations for NHS bodies
The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.
Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.
In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.
Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.