A recent case in Jersey has highlighted the fact that all employers need to be aware of the legal issues around gender reassignment.
Some employers tend to believe that it isn’t something they need to think about. Although at present there are no official estimates of the size of the trans population, a 2009 Home Office study estimated the numbers to be 300,000 – 500,000 at that time, and it is thought that those numbers are continuing to increase.
Therefore even if you aren’t aware of having a transgender member of staff, it may only be a matter of time.
In the case of Condor Ferries v Bisson, Ms Bisson was a new employee and asked a colleague which toilets she should use. She was told that she should use the disabled toilets.
Ms Bisson was unhappy about this and brought a claim for unlawful discrimination under Jersey’s gender discrimination laws, which were only introduced in 2015. She argued that being required to use the disabled toilets amounted to discrimination, and also the fact that the toilets had signs with words (e.g. Gentlemen) rather than symbols was also discriminatory.
Condor Ferries admitted to discrimination but said that it was “non-intentional and non-malicious.” At Jersey’s Employment and Discrimination Tribunal the parties reached agreement on a set of recommendations for changes to Condor’s practices. These included updating their Equality & Diversity policy and also changing the signage on the toilets to ensure that transgender people can use the facilities without fear of embarrassment.
Although the case involved Jersey law and therefore does not have effect in the UK, it has been widely reported in the media as an example. So what do employers in the UK need to be aware of? We set out some key points below.
- In the UK the relevant legislation is the Equality Act 2010, where gender reassignment is one of the nine ‘protected characteristics’. The definition of gender reassignment in the Act is met where a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
- It is important to point out that there is no requirement for any medical steps to be taken or planned, or for any of the ‘process’ mentioned in the definition to be irrevocable. Someone who decides to start to transition will still have the protected characteristic even if they stop the transition.
- Although trans people can apply for a gender recognition certificate so that their new gender can be officially recognised, this is not something which is required in order for them to be protected from discrimination. There is also no requirement for a trans person to notify their employer that they are transitioning, although many do choose to do so.
- As with the other protected characteristics, the Equality Act makes it unlawful to do the following for reasons relating to gender reassignment:
– Directly discriminate
– Indirectly discriminate
- Even if someone is not actually trans, they may be protected if they suffer discrimination because they are perceived to be trans.
- It is also unlawful to discriminate against someone because of their association with a trans person.
- If someone is suffering from gender dysphoria (which is a condition which sometimes leads a person to want to transition) then they may also potentially meet the definition of disability under the Equality Act 2010, which will trigger an employer’s duty to make reasonable adjustments.
- Any information regarding a person’s gender reassignment will amount to highly sensitive personal data under the Data Protection Act and should be handled accordingly. In addition, it is a criminal offence under the Gender Reassignment Act 2004 for anyone who has acquired information about gender reassignment in an official capacity (such as in HR) to disclose that information without the trans person’s prior consent. At every stage, it is best for decisions about the sharing of information to be led by the employee, so good communication with them is vital.
- There are some limited exceptions to the protection against gender reassignment discrimination, including if there is a ‘Genuine Occupational Requirement’ for the person employed to not be a transgender person. These rules are interpreted narrowly and the burden will be on the employer to explain the GOR and why it is a proportionate means of achieving a legitimate aim.
- Access to facilities at work is an area where problems can arise, as is shown by the Condor Ferries case. If in doubt, it is always a good idea to seek advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).