Transgender UK Law and Legal -
Sex Discrimination (Gender Reassignment)
Department
for Education and Employment
April 1999
[Abstract] Full Text [PDF]
A Guide to the Sex Discrimination (Gender
reassignment) Regulations 1999
Index
The Sex Discrimination (Gender Reassignment)
Regulations 1999 clarify GB law[1]
relating to gender reassignment. They are a measure to prevent
discrimination against transsexual people on the grounds of sex in pay and
treatment in employment and vocational training. This reflects a ruling
by the European Court of Justice that the dismissal of an employee undergoing
gender reassignment is contrary to the European Equal Treatment Directive.
The UK (and all Member States) is obliged to implement such European law.
The effect of the Regulations is to insert
into the Sex Discrimination Act 1975 a provision which extends the Act,
insofar as it refers to employment and vocational training, to include
discrimination on gender reassignment grounds. Thus, for the purposes of
employment and vocational training, discrimination on grounds of gender
reassignment constitutes discrimination on grounds of sex, and is contrary to
the Sex Discrimination Act. Employers who breach the Sex Discrimination
Act 1975 in respect of discrimination on gender reassignment grounds will be
liable in the same manner they would, for example, for discrimination against
a woman on grounds of sex.
Detailed information about the Sex
Discrimination Act 1975 can be found in the Department for Education and
Employment's publication: A Guide to the Sex Discrimination Act 1975.
This Guide has no special legal status and is
not intended to equate with a Code of Practice. Its purpose is to
provide guidance in relation to the application of the Regulations; and to
suggest some aspects of good practice for employers and employees on the
issues which may be encountered in accommodating an individual for whom gender
reassignment grounds exist in the workplace.
Transsexualism affects an estimated 5,000
people in the United Kingdom. Medical treatment to enable transsexual
people to alter their bodies to match their gender identity is highly
successful. The process is known medically as "gender
reassignment".
Diagnosis of transsexualism is carried out by
a specialist in this area and may take a matter of months or a period of
years. Preliminary diagnosis is followed by hormone therapy, and
typically after around six months the physical appearance of the individual
will begin to change. If an individual has not yet changed social
gender, they can be expected to start to do so at around this stage, though
they may maintain their usual gender role at work for rather longer. At
some point over the next few months the individual will start to live full
time as a member of their "new" sex, and their name and other
records (e.g. driving licence and passport) may be formally changed. If
there are no extraneous delays, (for example funding problems or waiting
lists), the individual usually proceeds to corrective surgery after one or two
years of hormone therapy. This period of therapy, during which the
individual is expected to live and work in their new sex, is often referred to
as the "real life test".
The extent of any surgical procedures will
vary according to the needs of the individual. Most surgical procedures
require less than two weeks absence from work, whilst some are more likely to
require two or three months. It may contravene the Sex Discrimination
Act to dismiss an individual because of impending gender reassignment
treatment, in the same way that it is unlawful to dismiss a woman for
pregnancy.
For the individual, living with
transsexualism produces similar personal responses to those associated with
any other life-altering condition, which will naturally lead to some
individuals suffering stress. However once the issues are identified and
gender reassignment commences, such problems are usually resolved.
Many transsexual people wish to keep their
transsexual status as private as possible, whilst others are willing to
discuss it confidentially or even openly. It is important that employers
do not breach the personal privacy of employees, recognising that the right to
disclose or discuss their medical history is the prerogative of the
individual.
In the United Kingdom a person is allowed to
change his or her personal details and to live as a member of the opposite sex
to that recorded at birth. The majority of transsexual people also
undergo medical treatment, which can include hormone therapy and corrective
surgery. This is only provided following careful assessment by medical
professionals, and may take some time.
While it is not at present possible for a UK
citizen who has undergone gender reassignment to alter his or her Birth
Certificate, it is possible to obtain other official documents in the new
identity. These include a passport, driving licence and National
Insurance Number.
The Sex Discrimination (Gender Reassignment)
Regulations 1999 insert into the Sex Discrimination Act 1975 a provision which
extends the Act to cover discrimination on grounds of gender reassignment in
employment and vocational training. Therefore, any reference to
discrimination in employment against men or women in parts II and III (so far
as it applies to vocational training) of the 1975 Act should be read as
applying similarly to discrimination on gender reassignment grounds.
Thus, a claim can be brought against an employer or individual employee for
any unlawful discrimination, including harassment. The Regulations cover
only direct discrimination.
It is unlawful to discriminate against a
person for the purpose of employment or vocational training on the ground that
that person intends to undergo gender reassignment, or is undergoing gender
reassignment, or has at some time in the past undergone gender reassignment.
This ensures 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 by the Regulations. It is
not necessary for all three circumstances to apply for discrimination to have
taken place.
Unfavourable treatment means treating a
person less favourably on gender reassignment grounds than you treat, or would
treat, a person for whom no gender reassignment grounds exist. This will
also apply to recruitment, unless a Genuine Occupational Qualification exists.
Yes, in limited circumstances. It may
not be unlawful to discriminate on grounds of gender reassignment where:
- a person's sex is a Genuine Occupational
Qualification (GOQ) for that job;
- the job involves the holder conducting
intimate searches pursuant to statutory powers (e.g. The Police and
Criminal Evidence Act);
- the job involves the holder working in a
private home and reasonable objection can be shown by the employer because
of the intimate contact in those circumstances.
In addition, see the limited temporary
exceptions which apply during the process of gender reassignment only.
The new Regulations reflect the difficulties
which can occur in relation to single sex occupations. Employers should
already be aware that under the Sex Discrimination Act it is unlawful to
discriminate on grounds of sex at the point of recruitment, except for certain
jobs where a person's sex is a Genuine Occupational Qualification (GOQ) for
that job (see s7(2), 7(3) and 7(4) of the SDA
1975). There are very few instances in which a job will qualify for
a GOQ on the ground of sex. However, exceptions may arise such as where
considerations of privacy and decency or authenticity are involved. This
could include, for example, a job which requires the job holder to model
clothes, or work in the presence of people who are in a state of undress.
When a GOQ exists it also applies to promotion, transfer or training for that
job. A fuller description of the circumstances where a GOQ can exist are
set out in paragraph 14-17 of the Equal Opportunity Commission's Code of
Practice on Sex Discrimination.
The GOQ provisions introduced by the Sex
Discrimination (Gender Reassignment) Regulations 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.
In such circumstances, the Regulations allow an employer to consider
dismissing an individual or taking some other form of action. The
employer must be able to show that, firstly, an applicable GOQ exists, and
secondly, that any treatment accorded to the individual is reasonable in all
the circumstances of the case. It is emphasised that an unreasonable
action could well lead to a finding of unlawful discrimination, regardless of
an existing GOQ. Action short of dismissal, such as re-deployment to
another part of the organisation where no such single sex GOQ exists, might be
negotiable, especially in larger firms, and should be the first option
considered in such circumstances. Part Three of this Guide, describes
good practice involving discussing options with the employee at an early stage
to try to come to a mutually satisfactory arrangement.
With respect to recruitment to a post to
which a GOQ applies, employers 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. The onus will be on
the employer to show that he or she acted reasonably in the circumstances.
Yes. In addition to the provisions of
s7 of the SDA, the new Regulations introduce supplementary GOQs relating to
gender reassignment grounds. These include provisions which relate to
intimate physical searches pursuant to statutory powers (e.g. Police and
Criminal Evidence Act); and a private home exception where reasonable
objection can be shown by an employer because of the need to preserve privacy
and decency.
Financial and organisational concerns may not
automatically constitute reasonable grounds for applying a GOQ. It may
be that where a job involves only occasionally undertaking the duties for
which a GOQ applies, employers consider instead re-allocation of tasks.
The Regulations do not apply to employment
for the purposes of an organised religion where, in order to comply with the
doctrines of that religion, or to avoid offending the susceptibilities of a
significant number of its followers, the employment is restricted to people
who are neither undergoing, nor have undergone, gender reassignment.
Provision is also made in limited
circumstances to excepting posts where individuals have to share
accommodation, and it is not reasonable on privacy or decency grounds for an
individual to do so with either sex while in the process of undergoing gender
reassignment (for example, work on board a ship where private facilities are
not provided). In such a case, an employer must be able to show that it
would not be reasonable to expect him or her to provide alternative
accommodation for an individual undergoing gender reassignment.
Where an individual already working in a post
requiring him or her to share accommodation commences gender reassignment, an
employer should attempt, where possible, to take all reasonable steps short of
dismissal in dealing with such circumstances. This could include, for
example, redeployment, or temporary replacement of the individual while
undergoing gender reassignment.
It is also not unlawful for an employer to
make special arrangements where a post requires the holder to provide
vulnerable individuals with personal services promoting their welfare, or
similar personal circumstances, and in the reasonable view of the employer,
those services cannot be adequately provided by a person whilst undergoing
gender reassignment. It is envisaged that this exception will apply only
in very rare circumstances and is not a general defence for discrimination on
gender reassignment grounds against individuals who provide such personal
services.
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.
The Regulations do not specify a minimum or
maximum time employers should allow a person undergoing medical and/or
surgical treatment related to the process of gender reassignment.
However an employer must not treat any less favourably a person absent while
undergoing gender reassignment than he or she treats, or would treat, a person
absent due to illness or to some other cause. In the latter case the
employer should act reasonably and have regard to all the circumstances.
To illustrate, "some other cause" could include arrangements for an
employee to take leave, either paid or unpaid, to nurse a sick relative, or
take a sabbatical.
However, as with any major treatment, there
is always a small possibility that complications arising as a result of
medical treatment for transsexualism could result in a prolonged incapacity
for work. If incapacity continues beyond the normal expectations for the
process undergone, a transsexual employee could be retired on medical grounds
in the same way as any other person who becomes unfit for duty.
Part
III suggests good practice for dealing with the absence of an employee
undergoing the gender reassignment process.
Yes. Harassment of an individual on the
ground of gender reassignment - either by his or her employer or by fellow
employees - will give rise to unlawful discrimination. Such
discrimination should be dealt with in the same serious manner as harassment
is dealt with for any member of staff who is being discriminated against, for
example, on the basis of their sex or race.
Yes. The Regulations make unlawful
victimisation on gender reassignment grounds, just as it is unlawful to
victimise someone for asserting their rights on grounds of sex. For
example, the new regulations make it unlawful to victimise an individual
following a complaint made in good faith that they have been discriminated
against on ground of gender reassignment. It is equally unlawful to
victimise someone who gives evidence on behalf of a person who has complained.
The Regulations have been introduced to
reflect the ruling of the European Court of Justice that discrimination on
grounds of gender reassignment is contrary to the EC Equal Treatment
Directive. The Directive applies only to the fields of employment and
vocational training. These Regulations therefore have to be limited to
employment and vocational training and do not impact on the existing
provisions in the Sex Discrimination Act relating to coverage of goods,
services and facilities.
Equal opportunities policies which refer to
discrimination on grounds of sex should also include discrimination on grounds
of gender reassignment. Employers who wish to promote
anti-discriminatory practice in general may well have policies and procedures
about topics such as sexual orientation, culture and religion, age and HIV
status as well as race, sex and disability: they may consider it appropriate
to add "gender reassignment" to their list.
It should not be expected that job applicants
and interviewees will necessarily wish to disclose transsexual status since
many consider it a very private matter. It is not a question that should
ever be asked at interview, just as, for example, a woman should not be asked
about her plans to have children. However, individuals for whom gender
reassignment grounds apply should be aware of the limited exceptions to the
requirement that employers must not discriminate. In circumstances where
an exception might apply, an individual would be expected to disclose his or
her transsexual status. Where no exception exists, questions relating to
gender reassignment are irrelevant.
One of the most important factors in the
successful management of an employee's transition from one sex to the other 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;
- agreeing the point at which the individual
will commence using single sex facilities in their new gender (e.g.
toilets);
Good practice example::
D, a popular and respected teacher in a comprehensive school, announced an
intention to transition to male. In consultation with D, the head
teacher and governors drafted a plan of action to include:
- telling colleagues;
- telling parents;
- telling pupils;
- handling the inevitable media
interest.
In the event, having been well briefed,
parents and pupils were happy to accept D in his new role.
It is good practice to discuss as far as
possible in advance what time will be required to undergo gender reassignment
treatment. Employers should try to allow some flexibility so that
employees may undergo this treatment, and are reminded that it may constitute
unlawful discrimination if their treatment of an individual absent while
undergoing gender reassignment treatment is less favourable than their
treatment of those who are or would be absent because of illness or other
medical treatment.
There is no general need or obligation to
inform colleagues, clients and the public that an employee is intending to
undergo, is undergoing, or has undergone gender reassignment. Such
information is necessary only where the relationship with someone who knew the
person prior to their change of status is to continue. It is usually
good practice for employers to take responsibility for informing those who
need to know, although the wishes of the individual should be respected as far
as possible. In some circumstances the transsexual person may wish to be
the one to make a personal explanation to some or all of their contacts; in
this case the employer will need to know when the disclosure is to take place
and at what depth, so that they can agree and provide appropriate support.
Education should take place on two levels: general information about
transsexualism, and specific information to enable people to understand the
situation of the particular person involved. At the point of change of
gender, it is common for transsexual people to take a short time off work and
return in their new name and gender role. This is often used as an
opportunity to brief others.
Good practice example:
T worked for a local authority. She agreed with her employer that she
would herself explain to long standing clients about her impending
transition, but that they would also be interviewed by a manager and those
who expressed unease would be offered a new contact. Her employer
arranged briefing by outside trainers for all her colleagues.
Where it is reasonable and practicable, it is
good practice for employers to update their records to ensure that any
references reflect current name, title and sex. In some instances, it
may be necessary to retain records relating to an individual's identity at
birth, eg for pension or insurance purposes. Access to any such records
showing the change of name and any other details associated with the
individual's transsexual status, (eg records of absence for medical treatment
in this connection) should be restricted to staff who require such information
in order to perform their specific duties. These staff could include
those directly involved in the administration of a process, for example the
Examining Medical Officer, or the person who authorises payments into a
company pension scheme. It does not refer to colleagues, clients or line
managers. Breaches of confidentiality should be treated in the same
serious manner as disclosure of personal details of any other member of staff.
Transsexual people in employment may choose
voluntarily to disclose at a secondary level, for example, answering an equal
opportunities questionnaire, or asking for support from a line manager.
Again, strict confidentiality should be observed. If giving a reference
for someone moving to a new job, a reference should be in the name which will
be used in the new job and not "hint at" a former name. It may
sometimes be necessary for a transsexual person to disclose a previous
identity in order for references from past employers to be obtained.
Once again, strict confidentiality and respect for dignity should be applied.
EmpIoyers registering staff for corporate
insurance and benefits policies are advised to inform their underwriters if
they know of a transsexual employee's status, since some insurers
automatically invalidate a policy if a major fact such as gender reassignment
is not disclosed. The employer should inform the employee before
disclosing the information. If an employer is unaware that an employee
has reassigned gender, the obligation to disclose falls upon the employee, who
could also be held liable in the event of an incident for which no valid
insurance cover existed.
Everyone born after April 1955 now receives
state pension at 65. But women born before 1950 can claim state pension
at 60, and those born between 1950 and 1955 can claim it at a point between 60
and 65. Because, for state pension purposes, transsexual people can only
be regarded as the sex recorded at birth, those born prior to April 1955 can
only claim state pension at the age appropriate to this sex - that is for
transsexual women at age 65 and for transsexual men at 60. It is the
responsibility of the employer to take suitable steps to keep confidential the
reason for the individual's apparently early or late retirement.
Many employers operate a Dress Code system.
It is good practice to allow enough flexibility in the dress code to
accommodate the process of transition from one sex to the other.
Good practice example:
M was working as a sales assistant when she began her transition to female.
Her employer discussed the possibility of temporary redeployment out of the
public gaze, but M preferred to remain with her team. The company
dress code was therefore relaxed along similar lines as for Muslim women and
other groups, giving M flexibility over hair length and style, jewellery and
make-up, prior to the point at which she felt comfortable in a skirt rather
than trousers and without reference to any specific point of change of
social gender. For a period some customers perceived her as female and
others as male, but M felt happy to accept this, and indeed used the
perceptions of customers as an indicator of when to begin presenting as
unequivocally female.
The employer and employee should agree the
point at which the use of facilities such as changing rooms and toilets should
change from one sex to the other. An appropriate marker for using the
facilities of the employee's "new" sex may, for example, be the
point at which the individual begins to present permanently in the sex to
which they identify. It is not acceptable to insist for the long term on
a transsexual employee using separate facilities, for example a disabled
toilet. Transsexual employees are entitled to expect support from their
employer including any necessary discussions and explanations with other
members of the workforce or members of the public. Similarly, a
transsexual employee should be granted access to "men only" or
"women only" areas according to the sex in which they permanently
present.
The Equal Opportunities Commission is a
principal source of advice and guidance to the public on the Sex
Discrimination Act. That now includes advice and guidance regarding the
provisions of the Act which relate to discrimination on grounds of gender
reassignment. The EOC's address is: Equal Opportunities Commission,
Overseas House, Quay Street, Manchester M3 3HN, Tel. 0161 833 9244, Fax 0161
835 1657, E-mail: info@eoc.org.uk.
Its Web site is: www.eoc.org.uk.
Department for Education and Employment
April 1999
Footnotes
1.
England, Scotland and Wales. The Regulations do not apply to Northern
Ireland
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Citation:
Crown Copyright 2003.
