Sex discrimination and transsexuals: recent Developments

Transsexualism: a discrimination issue

The Sex Discrimination (Gender Reassignment) Regulations 1999 have been in force since 1 May 1999. The Regulations amended the Sex Discrimination Act 1975 to provide the right for transsexuals not to be discriminated against. In EOR 85 (May/June 1999), we analysed the Regulations and their likely impact. In this article, Hilary Slater (1 ) explains developments in the law and examines the caselaw to date.

People with gender dysphoria or gender identity disorder, often referred to as transsexuals, live with a conviction that their physical anatomy is incompatible with their true gender role. Estimates of numbers of transsexuals in the UK vary from approximately 1,550 to 5,000.

Medical recognition has been relatively recent. Diagnostic criteria were not published until 1980. Public awareness of the nature of the condition is increasing. However, enquiries to the Equal Opportunities Commission (EOC) confirm that transsexuals still face discrimination of a very basic nature, and social exclusion. They have difficulty getting into employment. Also, they are likely to suffer the indignity of being singled out and isolated at work and to be dismissed for reasons connected with their condition or subjected to adverse treatment short of dismissal. If dismissed, transsexuals are likely to have particular difficulty in getting new employment.

Transsexuals may change their name and records, such as driving licence and passport, to reflect their new identity. However, the UK is among a small minority of European countries in which transsexual people cannot change their birth certificates. The Court of Appeal in Bellinger v Bellinger [2001] EWCA Civ 1140 confirmed last year that a transsexual's sex, for the purposes of marriage law, remains the sex at birth, so a male-to-female transsexual remained a biological male and was unable to marry another biological male. The EAT recently followed this decision in Chief Constable of West Yorkshire Police v A [2002] IRLR 93(see box 1) in finding that someone who had undergone gender reassignment, and wanted to join the police force, remained legally the sex of her birth.

An interdepartmental working group on transsexual people, set up by the Home Secretary, reported in April 2000. The group identified three options for the future:

  • to leave the current situation unchanged;

  • to issue birth certificates showing the new name and, possibly, gender; and

  • to grant full legal recognition of the new gender, subject to certain criteria and procedures.

    A White Paper, Civil Registration: Vital Change, which was published on 22 January 2002, includes a proposal for a move away from the traditional "snapshot" of life events towards the concept of a "living record". It suggests that, in time, updating the information in a birth record will mean that changes to a person's sex could potentially be recorded.

    Discrimination law and gender reassignment

    The first judicial recognition that there could be protection under sex discrimination laws against discrimination related to gender reassignment came in the EOC-assisted case of P v S and Cornwall County Council [1996] IRLR 347 (EOR 68A). The European Court of Justice (ECJ) held that discrimination for a reason related to gender reassignment was contrary to the Equal Treatment Directive (ETD): "Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment."

    Dismissal of such a person would be contrary to the Directive unless article 2(2) applied (which was not suggested in this case), which allows member states to exclude from the scope of the Directive occupations for which the sex of the worker constitutes a determining factor.

    The EAT decision in Chessington World of Adventures Ltd v Reed [1997] IRLR 556 (EOR 75B), another EOC-assisted case, held that s.1(1)(a) of the Sex Discrimination Act 1975 (SDA) (the definition of direct sex discrimination) could be interpreted consistently with the ECJ's ruling in P v S so claims of discrimination on grounds of gender reassignment could be brought under the SDA. The EAT concluded that where the reason for the unfavourable treatment is sex-based, that is, a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made.

    The SDA was amended with effect from 1 May 1999 by the Sex Discrimination (Gender Reassignment) Regulations 1999 to include express provisions making unlawful, in relation to employment and vocational training, less favourable treatment than other persons on grounds that someone intends to undergo, is undergoing or has undergone gender reassignment. A summary of the Regulations is set out in box 2. A guide to the Regulations was produced by the Department for Education and Employment (as it then was) which outlines good practice but has no statutory force.

    Press for Change, a campaigning organisation, has published Transsexual people in the workplace: a Code of Practice2. The Code was produced as part of the UK Parliamentary Forum on Transsexualism. Although the Code has no legal status, it provides detailed guidance for employers on issues which may be encountered in the application of the Regulations.

    Discrimination on grounds of gender reassignment in the provision of goods, facilities and services, education and housing

    The SDA prohibits discrimination on grounds of sex in the provision of goods, facilities and services, education and housing. Claims in relation to breaches of these provisions are brought in the county courts.

    The 1999 Regulations do not apply to discrimination outside the employment field, except in relation to vocational training. The ETD does not apply, except in relation to vocational training. There are proposals for a new European Directive based on article 13 EC Treaty to ensure equal treatment for women and men in matters other than occupation and employment, which may cover discrimination on grounds of gender reassignment outside the employment field.

    There are currently no express provisions, therefore, prohibiting discrimination on grounds of gender reassignment in the provision of goods, facilities, services, housing or education (except in relation to vocational training). However, there is a strong argument that s.1(1)(a) SDA does cover such discrimination. The EAT's interpretation of s.1(1)(a) in Chessington as covering discrimination on grounds of gender reassignment, although dealing with a case of discrimination in employment, would be persuasive authority, for a court considering the application of the definition of discrimination, to discrimination on grounds of gender reassignment occurring in another context. The 1999 Regulations did not amend s.1(1)(a) SDA or expressly overrule Chessington.

    A counter-argument is that parliament cannot have intended the SDA in its original form to cover discrimination on grounds of gender reassignment since it later introduced, by the 1999 Regulations, express provisions concerning discrimination on grounds of gender reassignment, and it restricted those provisions to employment and vocational training.

    However, the Human Rights Act 1998 provides additional arguments for interpreting the SDA to cover discrimination on grounds of gender reassignment outside the employment field. Article 14 of the Convention prohibits discrimination where another Convention right is engaged. Article 14 prohibits discrimination on grounds of sex but does not specifically refer to discrimination on grounds of gender reassignment. However, the list is non-exhaustive and forms of discrimination not listed have been held to be a breach of Convention rights, eg discrimination on grounds of sexual orientation. Discrimination on grounds of gender reassignment where another Convention right is engaged is, therefore, likely to be contrary to the Convention -either on the basis that this form of discrimination is a form of discrimination on grounds of sex, or that it is another form of prohibited discrimination covered by the provision, although not specifically listed. The most likely Convention rights to be engaged in this context are article 8 (right to respect for private and family life) and article 10 (freedom of expression).

    The EOC is not aware of any decided cases concerning discrimination on the grounds of gender reassignment outside the employment and vocational training fields. However, the EOC assisted three cases on this issue which have settled, with compensation being paid to the claimants. All three cases concerned exclusion from pubs for reasons related to gender reassignment: Ring v Meenaghan; Ring v (1) Gardner (2) Joseph Holt; Jones v Woodhead.

    1 Hilary Slater is a solicitor and was a principal legal officer with the Equal Opportunities Commission 1994-2001. She acted for Anne Ring and Lisa Jones in cases assisted by the EOC concerning discrimination on grounds of gender reassignment in the provision of goods, facilities and services. Hilary Slater is now a consultant with Cobbetts, solicitors, of Manchester and writes the case summaries in the case digest section of EOR.

    2 Available on the Press for Change website at www.pfc.org.uk.

    Box 1: Case law on gender reassignment discrimination in employment

    Most of the cases to date relate to the situation before the 1999 Regulations came into force. However, if Chessington was correctly decided, then there would probably be little, if any difference, to the outcome of most cases whether they relate to events before or after implementation of the 1999 Regulations, at least in so far as cases rely on the general principle that it is unlawful, under the SDA, to discriminate on grounds of gender reassignment. Two cases currently before the appeal courts are dealing both with the pre- and post-1999 Regulations law, in different contexts: Chief Constable of West Yorkshire Police v A and C v Royal Mail [now Consignia].

    Where most uncertainty remains is in relation to situations which the SDA, even in its amended form, does not expressly address. Good practice in relation to some issues, such as when transsexuals should start using single-sex facilities, eg toilets, of the gender to which the individual is reassigning, are dealt with in the DfEE guide, but this has no statutory force and the question remains as to whether the employer is unlawfully discriminating against the individual if the employer continues to refuse to allow the individual to use facilities appropriate to the "new" gender. C v Consignia may eventually give us some guidance on this point.

    Dismissal

     

    P v S and Cornwall County Council (EOR68) — ECJ

    Ashton v The Chief Constable of West Mercia Constabulary (27 July 2000; EAT/1381/99)

    The EAT upheld an employment tribunal's decision that Ashton was not unlawfully discriminated against on grounds of sex when dismissed for poor performance which was linked to the side-effects (depression) of medical treatment prescribed to Ashton whilst undergoing gender reassignment. The EAT rejected a comparison with the case of a pregnant woman who was incapable of work through pregnancy-related illness. The EAT stated: "It is a bridge too far to submit that where the cause of this appellant's poor work performance is, on the tribunal's findings, linked to the side-effects (depression) of medical treatment prescribed to her whilst undergoing [gender reassignment], that the necessary causative link is established between the treatment complained of, dismissal and her sex.

    "In this case, unlike pregnancy-related illness which is gender specific, the medical conditions from which the appellant suffered are not. The true comparison is between the appellant and a probationer who performed unsatisfactorily during his or her probation period. Both would, on the tribunal's findings, have been dismissed."

    Elmes v Exeter & District Council on Alcohol Ltd and others(Spring 1997)

    Elmes was employed to provide counselling and related services on alcohol and HIV issues to prison inmates. The employment tribunal found that Elmes was excluded from the prison because he was perceived by the governor to be experiencing a crisis as a result of his gender identity disorder and that his gender identity disorder was the principal reason for the failure of his employer to offer him alternative employment. The tribunal held, following the ECJ judgment in P v S, that these acts were unlawful. Elmes was awarded total compensation of £31,365.

    Harassment

     

    Chessington v Reed (EOR 75)— EAT

     

    Recruitment/promotion/genuine occupational qualifications

     

    M v The Chief Constable of West Midlands Police(Spring 1997)

    The employment tribunal held that the refusal to recruit someone who had undergone gender reassignment because they could not perform body searches on either sex was not contrary to the SDA or ETD. The Police and Criminal Evidence Act 1984 requires searches of detained persons to be conducted by an officer of the same sex. The applicant did not appeal.

    Chief Constable of the West Yorkshire Police v A [2002] IRLR 93 (EOC-assisted)

    The respondents refused to appoint A, a male-to-female transsexual, as a police constable, on the basis that they considered transsexuals would not be capable of performing the full duties of a constable because of the legislation on the carrying out of searches on persons in custody. A won her case at the employment tribunal(Summer 2000) but the respondents appealed to the EAT.

    The refusal to appoint A occurred before the 1999 Regulations were implemented. However, the employment tribunal had considered the situation under the law both before and after amendment. Although the EAT expressed some reservation about the relevance of the post-1999 Regulations law, the EAT agreed to deal with both issues. The Secretary of State was joined as a party to deal with the issue of the compatibility of the post-1999 law with the Equal Treatment Directive (the employment tribunal having found that the new provision relating to intimate searches was not compatible).

    In relation to the pre-1999 Regulations position, the EAT considered the genuine occupational qualification (GOQs) in s.7(2)(b)(i) SDA (which continues in force, unamended, after the 1999 Regulations). This allows the job to be restricted to a man because "it is likely to involve physical contact with men in circumstances where they might reasonably object to its being carried out by a woman" (or vice versa). The EAT, applying Bellinger v Bellinger, noted that A remained a man in law, although she appeared as a woman. They noted that s.54 of the Police and Criminal Evidence Act 1984 (PACE) requires a search of a detained person to be carried out by a constable of the same sex as the person searched. The EAT concluded that the employment tribunal had erred in finding that s.7(2)(b)(i) did not provide the Chief Constable with a defence, by dismissing the objections that some women might have — to being searched by a male-to-female transsexual — as not reasonable. Once it had been accepted that many people would have religious, cultural or moral objections, there could be no simple dismissal of the objections as not being reasonable without a careful scrutiny of what those religious, cultural or moral objections were and why they were unreasonable. The EAT said that the employment tribunal had not conducted such a scrutiny.

    The employment tribunal was also wrong to suggest that the police could present A as female and that no one would be the wiser, because this would involve the police in a deception. If it was sought to mitigate that deception by the giving of special instructions as to searches by A, this would destroy A's privacy.

    The EAT allowed the appeal, but, as they were not so confident that the only proper conclusion was that there was no unlawful discrimination, they remitted the case to the ET for reconsideration.

    In relation to the post-1999 Regulations position, the EAT considered the new supplementary GOQ, which permits gender reassignment discrimination where "the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers" in s.7B(2)(a) SDA. The EAT noted that it is intrinsically unlikely that any individual police constable will be called on to perform an intimate search. However, there is a theoretical possibility of this, in which case PACE requires the search to be by a constable of the same sex as the person searched.

    The EAT held that "liable to be called upon to perform" means liable in practice so to be called on rather than a theoretical possibility of this. Section 7B(2)(a), therefore, creates no absolute bar on the appointment of a transsexual as a constable. The EAT held that the employment tribunal had erred in finding that s.7B(2)(a) was in conflict with the ETD because the tribunal had considered that the provision amounted to an absolute bar on her and all transsexuals becoming constables.

    A has been given leave to appeal to the Court of Appeal.

    Sheffield v Air Foyle Charter Airlines Ltd (Autumn 1998)

    The employment tribunal found that the reason the applicant was not called for interview by EasyJet as a pilot was her gender reassignment. She was awarded approximately £70,000 compensation plus interest.

    Bourne v (1) Roberts (2) The Post Office(Winter 1999)

    The employment tribunal found that a number of incidents were due to the applicant's gender reassignment: refusal of promotion to acting manager because the respondent assumed that the applicant, because he would be undergoing gender reassignment, would be under stress and that staff would find it difficult to take orders from him; the giving of a warning about attendance in circumstances where others would not have been given a warning; and being summoned to a meeting with Mr Roberts who was angry that the applicant had told a staff member he was unhappy about his treatment, and became more angry when he found that the applicant had written to Mr Roberts' superior. The tribunal awarded compensation of nearly £4000 plus interest.

    Fortnum v Suffolk County Council(Autumn 2000)

    The employment tribunal held that the respondent had unlawfully discriminated against the applicant, a male-to-female transsexual working as an assistant day care officer in a day care centre, when they stopped her assisting with the personal care of DL, a client with learning difficulties, because DL's mother did not wish men to attend her daughter's personal care needs.

    The tribunal rejected the respondent's defence based on s.7B(2)(d) SDA, which provides that an employer may discriminate where 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. The applicant had been providing effective services to DL. The respondent never addressed their mind to the question of whether or not the service could effectively be provided by the applicant. The tribunal awarded compensation of £2,800, including £2,000 for injury to feelings.

    Use of single sex facilities

    C v Royal Mail [now Consignia] June 2000; Case No: 1901270/99 (EOC-assisted)

    The employment tribunal held that the refusal to allow the applicant, a pre-operative male-to-female transsexual living as a woman, to use the ladies' toilets was not contrary to the SDA. The tribunal held that a male-to-female transsexual does not change gender for the purposes of the SDA until the final operation to change the physical characteristics is performed and, therefore, it was not less favourable treatment to deny her access to the female toilet facilities. The tribunal also found that the employer had, in its defence, taken all reasonable steps in respect of harassment by other employees.

    The case is being appealed to the EAT with EOC assistance.

    Pay

    B v (1) NHS Trust Pensions Agency (2) Secretary of State for Health 19 August 1999; EAT/1211/98 (unreported)

    The EAT decided that it was not unlawful sex discrimination to deny survivor's pension benefits to the transsexual partner of a member of the NHS pension scheme on the grounds that they were not married. B and her partner are unable to marry because current UK law on marriage does not allow people of the same biological sex to marry.

    The case was appealed to the Court of Appeal with assistance from JUSTICE and the EOC. The Court of Appeal referred the following question to the ECJ: "whether the exclusion of the female-to-male transsexual partner of a female member of the National Health Service Pension Scheme, which limits the material dependant's benefit to her widower, constitutes sex discrimination in contravention of Article 141 EC and Directive 75/117."

    The EOC is assisting the case in the ECJ. The Court of Appeal has made a restricted reporting order relating to the identity of B.

    Box 2: Summary of the main provisions of the Sex Discrimination (Gender Reassignment) Regulations 1999

    Scope

     

    The Regulations introduced express prohibitions against discrimination on grounds of gender reassignment in the fields of employment and vocational training only. Discrimination on grounds of gender reassignment in relation to pay or other contractual conditions is brought within the Sex Discrimination Act 1975 rather than the Equal Pay Act 1970.

     

    Definition of discrimination

                      

          -   Less favourable treatment than other persons on grounds that the individual intends to undergo, is undergoing or has undergone gender reassignment.

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

                           -  Special provisions define less favourable treatment in relation to absence from work or from vocational training due to the individual undergoing gender reassignment. These equate absence due to gender reassignment to absence due to sickness or inury.

     

    Genuine Occupational Qualifications

    Existing GOQs in s.7 SDA

     

    An employer may lawfully refuse to employ someone because they intend to undergo, are undergoing or have undergone gender reassignment where:

                            - being a man or being a woman is a GOQ for the job under s.7(2) SDA; and

                            -   the employer can show that the treatment is reasonable in view of the relevant circumstances.

     

    Supplementary temporary GOQs

     

    These permit discrimination against someone who intends to undergo gender reassignment or is undergoing gender reassignment, but not against someone who has undergone gender reassignment.

                          - Discrimination is permitted where the employee needs to live on premises provided by the employer and:
    reasonable objection could be taken on grounds of privacy and decency to sharing accommodation and facilities; and
    it is not reasonable to expect the employer either to equip the premises with suitable accommodation or to make alternative arrangements.

                          - Discrimination is permitted where the employee 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 they are undergoing gender reassignment.

    Supplementary permanent GOQs

     

    Discrimination is permitted:

                           - against someone who is intending to undergo, is undergoing or has undergone gender reassignment where the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers;

                           - against someone who is undergoing or has undergone gender reassignment where the job is likely to involve working or

                           -   living in a private home and objection might reasonably be taken to allowing that person the degree of physical or social contact with a person living in the home or the knowledge of intimate details of such a person's life the job holder would be likely to have access to.