Coping with the change

first_imgWhat has been the impact of discrimination law on transsexuals and how willit affect the workplace?  By Joan Lewisand Linda Goldman The Sex Discrimination Act (SDA) came on to the statute book in 1975 at thesame time that the Equal Pay Act 1970 came into force. These Acts form thekingpin of legislation to ensure equality of treatment for the sexes in theworkplace and were originally designed to correct injustices suffered by womenin terms of pay and access to work. During the last decade or so, the concept of gender has shifted to that ofthe person. The European Equal Treatment directive (number 76/207) and Article119 of the Treaty of Rome have formed the legal framework for many questions tobe answered in the European Court of Justice where member states of theEuropean Union have had their legislation subjected to scrutiny and whereextensive case law has developed. Men are now as likely to bring sex discrimination or equal pay claims astheir female counterparts. Those whose gender is changed have been involvedincreasingly in employment litigation in recent years. Gender-specific protection The Equal Treatment directive and current statutes protect persons fromdiscrimination on the basis of sex or, in the employment field, discriminationon the grounds of being married. There is no overt reference to statutoryrights for transsexuals or homosexuals. However, the Sex Discrimination (GenderReassignment) Regulations 1999, widen the scope of the SDA within the currentsocial perspective. Although the UK is likely to see extension to the currentanti-discrimination legislation to cover sexual orientation in addition totranssexualism, the Human Rights Act 1998 (HRA), now in force, increases therange of protection for those who express a greater variety of individualsexuality. The HRA provides statutory recognition in Article 8 of the European Conventionon Human Rights, which recognises the right to have private and family liferespected; Article 10 recognises the right to freedom of expression. These twofactors should ensure that the sexuality, gender or change thereof does notaffect the right of an individual to carry out a day’s work in a discriminationfree environment. Until the last decade, there was no significant case law affectingtranssexuals in the workplace. Indeed, the law remains fixed that persons whoundergo a sex change operation retain their biological gender as determined atbirth (White v. British Sugar Corporation, 1977, IRLR 121). In 1996, in P v. S& Cornwall County Council, the ECJ ruled that the Equal Treatment Directiveapplied to transsexuals in a decision which encourages the view that the nextstep, on the grounds of logic and policy, is to extend statute to coverdiscrimination of sexual orientation more generally, rather than for the courtsto continue to rely on individual precedents. The English courts swiftly accepted the logic and reasoning of the ECJ inrelation to transsexuals. The approach was endorsed in 1997 in ChessingtonWorld of Adventures v. Reed where it was held that a female suffered sexdiscrimination when she was about to undergo gender reassignment and washarassed mercilessly during the pre-operative course of treatment. Further protection is given to trans-sexuals by the new Gender Reassignment(SI 1999/1102), in force since May 1999. They amend the SDA by the insertion ofnew sections to protect individuals from discrimination on the grounds that aperson intends to undergo, is undergoing or has undergone a genderreassignment. This is defined in section 82 as, “a process which isundertaken under medical supervision for the purpose of reassigning a person’ssex by changing physiological or other characteristics of sex and includes anypart of such process.” Limitations of statutory protection Gender reassignment is a major surgical and endocrinological procedure whichdoes not include transvestism, although there may be a stage in the preliminaryprocess where the patient dresses in the manner of the gender which he or sheproposes to adopt. Thus, a man who wishes to attend work dressed as a woman (orvice versa) may be subject to disciplinary proceedings unless the conduct isundertaken under medical supervision and it is part of a process which involvesthe changing of physiological or other characteristics of sex. If the nature of a person’s exterior garments, make-up or hair-style rendersthe individual liable to dismissal, the claim may be on better grounds ifbrought for unfair dismissal in addition to sex discrimination. Thus, Ian(later Christine) Sheffield, a pilot undergoing gender reassignment in themid-1990s, succeeded in a discrimination claim when Air Foyle did not offer heran interview, short-listing other less qualified applicants. Practical implications Occupational health personnel should be aware that there is specificprovision in the new section 2A(3) of the SDA dealing with how absence due toundergoing a gender reassignment is to be treated. The employee must not betreated less favourably than someone who is absent through sickness or injury.There is an alternative catch-all provision which allows tribunals to look at howpeople, absent for reasons other than sickness or injury, are (or would be)treated. If the tribunal thinks it is reasonable that the employee should betreated no less favourably than those absent for a non-sickness reason, thatmay form the basis of a comparison upon which a finding of discrimination maybe based. Not all employees who have surgery to change their sex are treated ascompassionately as the former Reverend Peter Stone who returned to parishduties on 28 November 2000 (The Times, 29 November) in Swindon as ReverendCarol Stone, having undergone privately funded surgery during the summer. Shetold journalists that she had only two vocations in her life – “being apriest and a [being a] woman.” It is a sign of progress in eliminatingdiscrimination that she has been able to do so with the support of the churchand her parishioners. Industry can learn from this lesson. Alastair B Hodge, a barrister practising at 7 New Square, Lincoln’s Inn,London, carried out the research for this articleEqual Treatment directiveCurrent case law is affected by interpretation of the directive by the ECJ.Salient features are: equal treatment of persons at work with reference toaccess to employment, training, promotion and in respect of working conditions,including conditions relating to dismissal there shall be no discrimination whatsoeveron grounds of sex either directly or indirectly. By reference, in particular tomarital or family status, some occupational activities may preclude equaltreatment, particularly where the sex of the individual is the determiningfactor in access to the specific employmentLegal overviewP v S and Cornwall County Council, 1996, IRLR 347 The applicant, who was then male, was hired as a general manager. He wasdismissed a year later when the employer learned that he intended to undergogender reassignment surgery. The [then] industrial tribunal held that the casefell outside the scope of the Sex Discrimination Act 1975, but referred thecase to the ECJ for consideration of whether the Equal Treatment directiveapplied. ECJ held that the scope of the directive could not be confined simplyto discrimination based on the fact that a person is of one or other sex. Therights which it sought to safeguard applied to those whose gender wasreassigned. The Advocate General said that there is “irrelevance of a person’s sexwith regard to the rules regarding relations in society. Whosoever believes inthat value cannot accept the idea that a law should permit a person to bedismissed because she is a woman, or because he is a man, or because he or shechanges from one of the two sexes… by means of an operation which – accordingto current medical knowledge – is the only remedy capable of bringing mind andbody into harmony. Any other solution would sound like a moral condemnation – acondemnation, moreover, out of step with the times.” Chessington World of Adventures v Reed, 1997, IRLR 556 In 1991, the applicant announced a change of identity from male to female.For the next three years she was subject to a campaign of harassment by some ofher male colleagues. She went off on sick leave and five months later wasdismissed on the ground of lack of capability. The Employment Appeal Tribunalupheld the decision that the Sex Discrimination Act could, in the light of P vS & Cornwall County Council, be construed so as to cover unfavourabletreatment following a person’s statement of intention to undergo genderreassignment stating: “Where, as in this case, the reason for unfavourabletreatment is sex-based, that is, a declared intention to undergo genderreassignment, there is no requirement for a male/female comparison to be made.In these circumstances we interpret the 1975 Act consistently with the rulingof the ECJ in P v S & Cornwall County Council.” R v Secretary of State for Defence, ex parte Perkins, 1997, IRLR 297 Here is an important quote from the decision. “If, as the Advocate General[in P v S] indicates, transsexuals’ right to sexual identity embraces the rightto marry persons [according to English law] of the same sex, to allowdiscrimination against transsexuals on ground of sexual orientation wouldundermine, if not totally defeat, the protection to which the court inCornwall’s case held them entitled, namely discrimination on the grounds oftheir transsexuality. The proper way to regard the decision in Cornwall’s casemay well be that trans-sexuals are equally protected on the ground of sexualorientation. “And if transsexuals, even before and without any gender reassignment,are entitled to protection against discrimination on grounds of sexualorientation, it is difficult to see how such protection can be withheld from thoseof homosexual orientation generally.” Coping with the changeOn 1 Jan 2001 in Personnel Today Previous Article Next Article Comments are closed. Related posts:No related photos.last_img read more