Isle of Man: Equality : Gender Reassignment

When Bruce becomes Caitlyn, and the trouble with the toilets...

One of the biggest news stories of 2015 came about when former USA Olympian Bruce Jenner announced that he intended to live as a woman: Caitlyn Jenner. The resulting press led to public discussion on the topic of Caitlyn and gender reassignment, with many people having their own opinion on the transition and on gender reassignment in general.

Probably unsurprisingly however, this public debate did not explore the implications gender reassignment can have in an employment context. In this respect things could be changing very soon for Isle of Man employers, who may want to think ahead to avoid falling foul of the new legislation which will be landing on their desks before the end of the year.

Under the Isle of Man Equality Bill 2016 (the "Bill"), one of the nine characteristics which will be protected is gender reassignment. The proposed definition under the Bill is as follows:

(1) A person has the protected characteristic of gender reassignment if the 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.

(2) a reference to a transgender person is a reference to a person who has the protected characteristic of gender reassignment.

Under the legislation, an individual with the protected characteristic of gender reassignment will be protected from direct and indirect discrimination, victimisation and harassment where it occurs because of that protected characteristic. A specific protection is also included in respect of gender reassignment against direct discrimination due to absences from work because of gender reassignment. This means that an employer must not treat an employee who is absent from work for the purpose of any part of the gender reassignment process less favourably than if the absence was due to illness or injury or for some other reason, and it is not reasonable for the employee to be treated less favourably.

In this article we refer to the protections being enjoyed by employees, but under the Bill contract workers, partners and office holders also benefit from these protections. The protections cover all aspects of the employment relationship including recruitment, the terms and conditions of employment and dismissal.

As drafted, this aspect of the Bill directly mirrors the England and Wales Equality Act 2010 (the "2010 Act"), therefore we would expect that any future amendments would not materially change the effect of the section. This would be particularly helpful from an employer's perspective, as the Equality and Human Rights Commission ("EHRC") in the UK has produced a statutory Code of Practice for the 2010 Act focusing on the implications for employment, including useful examples and guidance on the various issues that could arise. You can view a copy of the Code of Practice by following this link.

The proposed definition of gender reassignment should immediately make employers sit up and think, because not only does this provision include people who have already transitioned into their acquired gender, but also includes individuals from the moment they "propose" to undergo the transition. The EHRC's Code of Practice gives some helpful guidance on when a person will begin to enjoy protection from the 2010 Act:

"The Act requires that a person should have at least proposed to undergo gender reassignment. It does not require such a proposal to be irrevocable.

People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment."

The definition also does not include any requirement that a person must be subject to any medical intervention to transition, moving away from previous UK legislation which required "medical supervision" during the process. This protects individuals, for example, who may not feel the need to undergo any medical procedures in order to pass as a member of the opposite gender, yet still identify with that gender and intend to live permanently in that gender.

The concept of intending to live permanently in a gender is important, and employers should be aware that this legislation is not designed to extend to the protection of transvestites under the gender reassignment heading. The explanatory notes that accompany the 2010 Act state that the intention of the legislation is to protect those "who make a live permanently in their non-birth gender" but not "transvestites or others who choose temporarily to adopt the appearance of the opposite gender."

However, it is important to note that discrimination on the basis of gender reassignment can occur even where an individual is not in fact transgender or in the process of transitioning. If an employer chooses not to hire an applicant for a position because they believe that the applicant is transgender, for example if a company chose not to hire the best candidate for a receptionist position because they thought the woman who applied looked masculine and incorrectly believed she was transgender, then this would constitute discrimination on the basis of perceived gender reassignment.

Another factor which employers may want to bear in mind is that, whilst being transgender is not a disability, if an individual has been diagnosed with a related condition such as gender dysphoria or gender identity disorder, and that condition has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities, they may also be protected by disability discrimination legislation.

As the title of this article alluded to, the use of single-sex facilities such as toilets is often one of the main issues that an employer may identify as potentially problematic in avoiding discriminating against transgender employees. Helpfully, the UK's Government Equalities Office ("GEO") has addressed this issue in its guidance 'The recruitment and retention of transgender staff'. The guidance suggests that a transgender person should be free to use the facilities appropriate to the gender in which they present, i.e. when a transgender person starts to live in their acquired gender permanently they should be able to use the facilities that correspond to their acquired gender. It is commonly accepted by a number of groups supporting the promotion of transgender rights in the workplace that offering gender-neutral toilet facilities in any event is good practice and can avoid any issues which may arise where an individual is forced to choose between gender-specific options. To read more of the GEO's guidance, follow this link.

An interesting case which came before the Jersey Employment and Discrimination Tribunal in May 2016 related to toilet facilities provided by Condor Ferries. Jersey's Discrimination (Jersey) Law 2013 (as amended) includes very similar wording to the Bill in terms of the protected characteristic of gender reassignment. In this case a transgender woman passenger, Ms Bisson, called Condor to ask which toilets she should use on board the ferry and was advised she should be using the disabled toilets. Ms Bisson brought a claim for direct discrimination and additionally claimed that the use of words displayed on the toilets stating "ladies" and "gents" amounted to indirect discrimination. Condor admitted discrimination and agreed to various orders made by the tribunal, including to provide training to staff and to alter the toilet door signage so that a transgender person may use the facilities without fear of humiliation or embarrassment. The signs agreed between the parties now depict a symbol for men and women rather than words, although female and male toilets do remain separate.

Interestingly, when the Bill recently moved through the House of Keys there was an amendment approved to include provision for the Council of Ministers, by order, to replace the protected characteristic of "gender reassignment" with "gender identity and expression". This is in response to a 2016 report by the House of Commons' Women and Equalities Committee who said they would be keeping the position under review. The House of Keys didn't feel a replacement of the terminology at this stage was appropriate, however this is one example of the Isle of Man taking the lead from UK legislation but adapting it to ensure the Island is on the front foot for future developments.

For a large number of employers, gender reassignment discrimination may not be something they have had to address in the past, and may now seem like a minefield to navigate. However if an employer can communicate effectively with a staff member who is either considering, or has already begun to take steps towards gender transition as soon as they are aware of it, it could be invaluable, not only to avoid any potential actions for discrimination, but also to make the process as smooth as possible for all involved. It also goes without saying that employers will want to ensure their policies and procedures are up-to-date so that all staff members know exactly what is expected of them, and what they can expect in return from their employer, should gender reassignment already be, or become, a part of their life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions