The Gender Reassignment Regulations 1999

A synopsis of new protection for transsexuals in employment.

"'Gender reassignment' means a process which is undertaken under medical supervision for the purposes of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process."

(s.82(1) of the SDA as amended)

Following the landmark ruling of the European Court of Justice ("the ECJ") in P v S and Cornwall County Council1, a number of domestic tribunals sought to adapt and reinterpret the Sex Discrimination Act 1975 ("the SDA") to extend to transsexuals the protection that was clearly required by the EC Equal Treatment Directive (No.76/207/EEC)2. According to the Government, this reinterpretation placed excessive "strain" on the provisions of the SDA, and, in January 1998, it issued a consultation paper announcing an intention to make specific amendments to the Act regarding transsexualism in employment.

This article outlines and evaluates the key changes to the SDA made by the resulting Sex Discrimination (Gender Reassignment) Regulations 19993 ("the Regulations"), which came into force on 1 May. We refer where relevant to a non-statutory guide to the Regulations issued by the Department for Education and Employment4 ("the DfEE guide"). "Good practice" advice for employers contained in the DfEE guide on agreeing a process for handling gender reassignment is set out below.

Scope of protection

The SDA as amended by the Regulations outlaws direct discrimination against transsexuals on the grounds of "gender reassignment" (see the statutory definition in the quote above) in employment (under Part II of the Act), under ss.35A and 35B (discrimination against barristers or advocates) and under any other provision of Part III of the Act, so far as it applies to vocational training. Exceptionally, discrimination in relation to pay is for these purposes covered by the SDA and not the Equal Pay Act 1970 (ss.6 and 8 of the SDA being amended accordingly).

Discrimination is defined in a new s.2A(1) of the SDA as follows:

A person ("A") discriminates against another person ("B") ... if he treats B less favourably than he treats or would treat other persons, and does so on the grounds that B intends to undergo, is undergoing, or has undergone gender reassignment.

Further, it is specifically provided that if B is absent from work or vocational training "due to undergoing gender reassignment", he or she will be treated less favourably than others under s.2A(1) if he or she is treated less favourably than he or she would be if the absence was due:

  • to sickness or injury (s.2A(3)(a)); or

  • to some other cause and, having regard to the circumstances of the case, it is reasonable for him or her to be treated no less favourably (s.2A(3)(b)).

    A comparison of the cases of persons required for the purposes of s.2A must be such that the relevant circumstances in the one case are the same or not materially different in the other (see s.5(3) as amended).

    Broad comparison permitted

    The basic comparison which is thus permitted for the purpose of establishing less favourable treatment of an individual under s.2A(1) is with any other person (actual or hypothetical, male or female) whose relevant circumstances (other than in relation to gender reassignment) are the same or not materially different. This would appear to be significantly broader than the comparison between the treatment of a transsexual and "the sex to which he or she was deemed to belong before undergoing gender reassignment" preferred by the ECJ in P v S.

    To this extent the SDA implicitly recognises the uniqueness of transsexualism (more technically known as "gender dysphoria") as a life-changing condition, analogous perhaps to pregnancy in women. But in relation to gender reassignment-related absences (for example, for medical treatment), s.2A(3)(a) permits a comparison with employees who are absent due to sickness or injury which cannot legitimately be applied to the pregnant woman. And the DfEE guide suggests that "some other cause" under s.2A(3)(b) "could include arrangements for an employee to take leave, either paid or unpaid, to nurse a sick relative, or take a sabbatical", although comparison here is subject to an overriding requirement of reasonableness.

    Commencement of protection

    There can be little doubt that protection is afforded by s.2A(1) to both pre- and post-operative transsexuals. But it is less certain at what point in the pre-operative stage protection begins. The DfEE guide is of the opinion that "the various stages of the gender reassignment process, including the very initial stage, where an individual indicates an intention to commence gender reassignment, are covered ..." This differs markedly from the consultation paper, where the Government expressed the view that "a specific request to the medical profession to intervene" could mark the appropriate starting point for protection.

    It is arguable that, as drafted, s.2A(1) protection must commence at the very latest when an individual indicates a settled intention to undergo gender reassignment to the employer (or the employer becomes aware, or ought reasonably to be aware, of that intention - for example, due to its disclosure to the individual's work colleagues). An honest and genuine settled intention sufficient to trigger protection could, it seems, precede the formal involvement of the medical profession, since the disclosure of such an intention in the workplace will rarely be done lightly.

    And individuals will, of course, be protected from harassment by work colleagues and others on gender reassignment grounds at an early stage, with the employer potentially being directly and personally liable, or at the very least vicariously liable (under s.41(1) of the SDA), for such actions. Employers should remember that, in Chessington, the EAT applied Burton v De Vere Hotels Ltd5, and upheld the employment tribunal's finding that the employer was directly liable for the harassment suffered by the applicant. It was "abundantly clear", said the EAT, that the employer was aware of the campaign of harassment, "but took no adequate steps to prevent it, although it was plainly something over which it could exercise control". All of these matters will largely be questions of fact for determination by employment tribunals.

    GOQ exceptions

    It will be a defence to a claim of unlawful treatment on gender reassignment grounds if, in relation to the employment in question, being a man or being a woman is a genuine occupational qualification ("GOQ") for the job, and the employer can show that the treatment is "reasonable" in view of the circumstances described in the relevant paragraph of s.7(2) of the SDA "and any other relevant circumstances" (see the new s.7A of the SDA). In determining for these purposes whether there is a valid GOQ for a job, s.7(4) applies in relation to dismissal from employment as it applies in relation to the filling of a vacancy.

    One of the intentions of these general GOQ provisions is to acknowledge the "unique situation of a person recruited for a specific single-sex GOQ post who commences the gender reassignment process whilst still employed in that post" (see the DfEE guide). In such circumstances, says the guide, the provisions allow an employer to consider dismissing an individual or taking some other form of action, again subject to an overriding test of reasonableness in all the circumstances of the case. With respect to recruitment to a post to which a GOQ applies, therefore, the guide warns employers that they "should be aware that failure to recruit a person to whom gender reassignment grounds apply and who is living and presenting in their 'new' sex may be considered unreasonable and lead to claims of discrimination by those aggrieved".

    If a job only occasionally involves undertaking the duties to which a GOQ applies, employers should consider whether those parts of a job can be reallocated to existing male or female employees in accordance with s.7(4) (see above).

    Supplementary GOQs

    Section 7B of the amended SDA establishes several "supplementary" GOQs in relation to discrimination on gender reassignment grounds. These apply only if:

  • the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers (s.7B(2)(a));

  • the job is likely to involve the holder of the job doing his or her work, or living, in a private home and needs to be held other than by a person who is undergoing or has undergone gender reassignment, because objection might reasonably be taken to allowing such a person - (i) the degree of physical or social contact with a person living in the home; or (ii) the knowledge of intimate details of such a person's life, which is likely, because of the nature or circumstances of the job or of the home, to be allowed to, or available to, the holder of the job (s.7B(2)(b));

  • the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in premises provided by the employer, and - (i) the only such premises which are available for persons holding that kind of job are such that reasonable objection could be taken, for the purpose of preserving decency and privacy, to the holder of the job sharing accommodation and facilities with either sex whilst undergoing gender reassignment; and (ii) it is not reasonable to expect the employer either to equip those premises with suitable accommodation or to make alternative arrangements (s.7B(2)(c)); or

  • the holder of the job provides vulnerable individuals with personal services promoting their welfare, or similar personal services, and in the reasonable view of the employer those services cannot be effectively provided by a person whilst that person is undergoing gender reassignment (s.7B(2)(d)).

    The last two of these categories apply only in relation to discrimination against persons who intend to undergo or are undergoing gender reassignment. In relation to s.7B(2)(d), the DfEE guide advises: "It should not be assumed that vulnerable people automatically include children, patients undergoing medical treatment, elderly people, mentally ill people or any other group. The onus is on the employer not only to show that a particular individual or individuals are vulnerable, but also to show that he or she acted reasonably in concluding that the personal welfare services in question could not be effectively carried out by a person undergoing gender reassignment."

    Note: The SDA is further amended to provide similar GOQ exceptions in relation to contract workers and partnerships.

    Ministers of religion excluded

    Section 2A does not apply:

  • "to employment for the purposes of an organised religion where the employment is limited to persons who are not undergoing and have not undergone gender reassignment, if the limitation is imposed to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers" (see the new s.19(3)); or

  • to an authorisation or qualification for purposes of an organised religion which is similarly so limited (new s.19(4)).

    Role of the EOC

    Finally, the remit of the Equal Opportunities Commission is extended to cover promotion of equality of opportunity in relation to gender reassignment, as are its powers to issue Codes of Practice.

    1[1996] IRLR 347.

    2See, for example, the EAT's decision in Chessington World of Adventures Ltd v Reed [1998] IRLR 56.

    3SI 1999/1102, available from the Stationery Office, price £2.

    4"A guide to the Sex Discrimination (Gender Reassignment) Regulations 1999" (April 1999), available from Prolog, tel: 0845 6022260, fax: 0845 6033360, free.

    5[1996] IRLR 596.

    The DfEE advice

    "One of the most important factors in the successful management of an employee's transition from one sex to another is to discuss with them how they would prefer to handle it, and to follow a process agreed with them. Issues which may be considered include:

  • whether the employee is to stay in their current post or be redeployed;

  • the expected timescale of the medical and surgical procedures, and the time off required for medical treatment;

  • the expected point or phase of change of name, personal details and social gender;

  • whether the employee wishes to inform line manager, colleagues and clients themselves, or would prefer this to be done for them; and whether training or briefing of colleagues or clients will be necessary, and at what point and by whom this will be carried out;

  • what amendments will be required to records and systems;

  • whether a transsexual employee is adequately covered by existing policy on issues such as confidentiality, harassment and insurance and if not how these will be amended;

  • agreeing a procedure for adhering to any dress code; and

  • agreeing a point at which the individual will commence using single-sex facilities in their new gender."