Canada: Trans, Non-Binary, Intersex, Genderqueer. Does Your Business Treat Everyone Fairly?

Last Updated: August 12 2016
Article by Vivienne Reeve

"Fairness and equality are British values", but does your business treat trans, non-binary, intersex, genderqueer and non-gendered people fairly? What do these terms mean?

A US Circuit Court Judge has recently made history in ruling that Jamie Shupe (who is transgender) was legally entitled to change their sex from female to non-binary (Shupe prefers the pronouns 'their' to 'his/hers'). Shupe had struggled with their identity and had for years felt trapped by the requirement to identify as either male or female. Shupe says they now have a place to exist.

This ruling has relevance to the UK, because the Government has acknowledged that trans people in the UK face increased discrimination in the provision of goods and services. Last year, it commissioned the Women and Equalities Committee to investigate and report on transgender equality. In the Government Response to the Committee's Report, the Minister for Women and Equalities addressed the 35 recommendations, acknowledging that while we have as a country made progress regarding gay and bisexual equality, when it comes to trans equality, we all have much to learn.

This raises the question of how much we all understand about trans identity and equality issues. Unless you or those close to you have personal experience of this issue, it can be a daunting area.

Here, we set out what the relevant terms mean, take a look at the current protections and obligations under the Equality Act 2010 (the Act) and what employers and service providers can do to treat trans people fairly.

Glossary of terms*

Gender identity - a person's internal sense of their own gender, whether male, female or something else (see non-binary below).

Gender reassignment - another way of describing a person's transition. To undergo gender reassignment usually means to undergo some sort of medical intervention, but it can also mean changing names, pronouns, dressing differently and living in their self-identified gender.

Gender Recognition Certificate (GRC) - this enables trans people to be legally recognised in their self-identified gender and to be issued with a new birth certificate. Not all trans people will apply for a GRC and you have to be over 18 to apply. You do not need a GRC to change your gender at work or to legally change your gender on other documents such as your passport.

Intersex - a term used to describe a person who may have the biological attributes of both sexes or whose biological attributes do not fit with societal assumptions about what constitutes male or female. Intersex people can identify as male, female or non-binary.

Non-binary - an umbrella term for a person who does not identify as male or female.

Trans - an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, cross dresser, non-binary, genderqueer (GQ).

Transgender man - a term used to describe someone who is assigned female at birth but identifies and lives as a man. This may be shortened to trans man, or FTM, an abbreviation for female-to-male.

Transgender woman - a term used to describe someone who is assigned male at birth but identifies and lives as a woman. This may be shortened to trans woman, or MTF, an abbreviation for male-to-female.

Transsexual - this was used in the past as a more medical term (similarly to homosexual) to refer to someone who transitioned to live in the 'opposite' gender to the one assigned at birth. This term is still used by some although many people prefer the term trans or transgender.

We will use the terms 'trans' for simplicity, as the issues discussed below can affect people falling within this umbrella definition.

Does the Equality Act 2010 adequately protect trans people?

Section 7 of the Act gives protection to a person on the grounds of gender reassignment if he or she 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."

The issue that arises is that not everyone in our society identifies with the traditional binary choices of male or female. Trans people may not identify with either sex, or may change their identity through their lifetime. Intersex people may have the biological attributes of both sexes, or have attributes that don't fit our expectations of a man or a woman. They may identify with one gender, change which they identify with over time, or identify with neither.

The 2016 Women and Equalities Select Committee's Transgender Equality Report (the Report) brought together the evidence of their study into the equality issues faced by trans people and how these can best be addressed. It recommended that the definition 'gender reassignment' should be updated to 'gender identity', as this would be a more flexible phrase, bringing the full spectrum of the trans community within scope of the Act.

The Government rejected this recommendation, stating it considers the current definition is adequate to protect trans people. It cites the current protection afforded to people who suffer discrimination because they are perceived as under-going gender reassignment, or to be male or female when they are not. But what about someone who is discriminated against by a colleague or service provider who knows they are Intersex and doesn't therefore perceive them to be anything else? Are they covered?

The Government's recently published guidance for employers and guidance for service providers does seem to recognise this gap, recommending that good practice means treating everyone, including trans, non-binary and those who don't confirm to gender norms, fairly.

Practical issues faced by trans people at work and when receiving services

Central to being non-binary or trans is the issue of gender identity. As explained above, for some trans people who don't identify with the society norms of male or female, this can cause real practical issues, not to mention distress. Some banks and public service providers have changed their application forms to accept the 'Mx' title instead of the binary Mr, Mrs, Miss or Ms, and added an 'X' option in addition to the usual 'M' or 'F'.

But research and recent news headlines show that not being able to choose these options means that some are denied access to services, or suffer intrusive questioning over their identity and appearance, when a non-trans person would not.

Some providers, such as Emerald Life, recognise the difficulties faced by not only non-binary but also the wider LGBTI community and have recently launched a range of LGBTI-friendly insurance products, to remove the common difficulties faced in dealing with traditional computer systems and business models.

The Government has committed to reviewing the Gender Recognition Act 2004 with a view to considering (among other things) whether they should create a legal category for those who do not associate with the current binary gender identities of male and female. Its best practice guidance already advises employers to include the option of 'other' when asking for the gender of job applicants.

Do the same / single sex services, and the genuine occupational requirement exceptions in the Act, unfairly restrict the equal treatment of trans people?

The Act allows for same sex and single services to be provided if they are a proportionate means of achieving a legitimate aim. Service providers can also refuse trans people access to their services if they can show doing so would be a proportionate means of achieving a legitimate aim.

An example cited as a legitimate exclusion of trans people is access to domestic violence and sexual violence services where vulnerable women or men find it hard to feel safe, particularly in a mixed sex environment. The legitimate aim, a safe haven, is easy to understand. But the unfortunate effect of such a policy is that a trans woman could be refused access to women's only and men's only refuge services, if it is apparent that they are trans (perhaps because they have just transitioned, or are intersex), or they are required to declare it.

The evidence suggests that trans people are often intrusively questioned about their gender identity and private lives before being denied access, which may amount to harassment and breach of their right to a private life. They therefore fall between the binary lines and are left without support. For those who transitioned a long time ago in particular, there is a real question of whether such questioning or exclusion is justifiable.

Similarly, the Act allows employers to recruit either a woman or a man for a job, if their sex is a genuine occupational requirement (GOC). While the legitimate aim in the context of a women's refuge, or a medical centre is easy to see, this is at odds with the Gender Recognition Act 2004 which stopped employers relying on sex as an occupational requirement when an employee held a Gender Recognition Certificate.

The Report recommends that the Act is changed so that trans people who have a GRC (and are legally recognised as being of their acquired gender) cannot be refused access to services or jobs because of their gender identity, even in a scenario like a refuge.

The Government states it agrees with the principle that those who have a GRC should be afforded the full social and legal status of their acquired gender, and refers to the best practice guidance it has published, reiterating that:

The separate / same sex services exception can only be used in exceptional circumstances where:

  1. there is no less discriminatory way of providing the services;
  2. there is evidence of detriment to others; and
  3. the service provider must try and find another way to provide the service to those it seeks to exclude.

Very careful consideration should be given before applying the GOC requirement, as the circumstances where it would be lawful are rare.

Service providers and employers, what can you do?

  • Recognise that society is changing and look at who you offer your services to and how and who you employ and offer opportunities to. Treat everyone fairly.
  • Stress test your systems - do your products, application forms or working practices make life difficult for someone who doesn't identify with binary male or female categories? Do you really need to ask for someone's gender?
  • If an applicant, employee or service user notifies you that they have changed gender, or do not identify as male or female, record this effectively so your staff don't inadvertently harass them by repeating requests / conversations unnecessarily.
  • Accept a range of ID other than a birth certificate. As the Government guidance says, you do not usually need to see a GRC to amend personal details. Not all trans people choose to obtain a GRC.
  • Expand your staff training to include awareness and understanding of gender identity, so that those delivering a service treat all service users with dignity and respect and that employees behave likewise towards each other.
  • If you provide same / single sex services, can you accommodate trans service users?
  • Establish, or widen existing internal networks so that trans and non-binary people in your organisation have a voice and feel supported.
  • Consider designating gender neutral bathrooms.

*Glossary taken from the Stonewall website.

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.

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