UK: Transsexualism And Employment Law

A transsexual Harley Street doctor was last week awarded £140,000 after winning a claim for sex discrimination after complaining that she was denied access to the National School of Hypnosis and Advanced Psychotherapy’s register of NHS patients. Widely-reported cases such as these draw attention to the fact that it is illegal to discriminate against transsexuals, but due to the relatively unusual nature of the circumstances, it may not be one with which employers are necessarily familiar.

Transsexualism (or "gender reassignment") is a recognised medical condition and as such, medical treatment to enable people to alter their bodies to match the gender which they consider themselves to be is available on the NHS. The diagnosis of this condition only takes place after a period of months or years of seeing a specialist.

After diagnosis, a person is given hormone therapy and it normally takes approximately six months before changes in their body may be noticed. At some point in the process the individual will change their "social gender", ie will begin to dress differently, and at some point after that will usually begin to live full-time as a member of their new sex. They may formally change their name and other records (for example, although it is not possible to alter a UK birth certificate at present, it is permitted to alter the details on a driving licence or passport). Corrective surgery typically takes place between one and two years after the start of hormone therapy, a period in which the person will have been living and working in their new gender, often referred to as a "real life test".

The Sex Discrimination Act 1975 as originally drafted did not include discrimination against transsexuals. However, the European Court of Justice ruled in P v S and Cornwall County Council ([1996] IRLR 347, ECJ) that a man who began to live as a woman and was dismissed shortly before the operation had no redress under UK law but that such a dismissal was contrary to the Equal Treatment Directive. This case was then followed in Chessington World of Adventures Limited v Reed ([1998] ICR 97, EAT). In this case, a biological male began working for a company as a technician, but announced in July 1991 that she intended to change her gender identity from male to female. A minority of her male colleagues then subjected her to a long and unpleasant campaign of harassment, and in November 1993 the employee attempted suicide. Although she asked her for a transfer to another department upon her return, her employers did not arrange this and nor was any disciplinary action taken against her colleagues. In March 1994 the employee went off sick and was dismissed for incapability four months later. Following her complaint that she had been discriminated on grounds of sex, a tribunal found that the harassment to which she had been subjected together with the employers’ failure to act on the discrimination constituted a detriment within the meaning of the Act, and that the decision in P v S & Cornwall County Council should be applied. Discrimination arising from a declared intention to undergo gender reassignment was therefore held to be based on a person’s sex and where the reason for the unfavourable treatment is sex-based there is no requirement for a comparator of the opposite sex.

Following these cases, the Sex Discrimination Act has been amended to make it unlawful to discriminate against a person for the purpose of employment or vocational training on the ground that that person intends to undergo, is undergoing, or has in the past undergone gender reassignment. This wording means that an employee is protected under the Act from the first announcement of his or her intention to change gender.

From an employer’s point of view, the news that an employee intends to undergo gender reassignment may provoke concern, not least about how much time the employee will take off during the process. Under the Regulations, An employer must not treat a person who is absent for gender reassignment treatment any less favourably than a person who is absent due to illness or any other cause (for example, taking leave to nurse a sick relative, or taking a sabbatical). However, the type of surgical procedure required varies, and as such, the amount of time off work needed may differ from employee to employee. This can range from less than a fortnight to several months.

However, if complications arise following surgery, there is a risk that there may be a prolonged period of incapacity for work. Incapacity beyond the normal expectations for the process undergone may entitle an employer to dismiss a transsexual employee on medical grounds in the same way as any other employee who becomes unfit for work.

A difficult issue which should be addressed as soon as possible is the use of toilets and other single-sex facilities. The employee may feel uncomfortable entering the females’ toilets dressed as a man, but other employees may not feel comfortable if that employee uses the male facilities. An employee may feel more comfortable using the disabled toilets but it is potentially offensive to insist on this and even if the employee is happy to do so for a while it should not be a long term solution. It may well be necessary to do awareness training in the workplace to educate employees.

Some employers provide in their contracts of employment for searches of employees in certain circumstances. If such a policy is in place, it would seem sensible for an employer to adopt the approach of the police to these circumstances, which is to ask a person who appears to be undergoing gender reassignment whether they would prefer to be searched by a man or a woman. It seems sensible to adopt this approach as an employer.

If an employee is undergoing or has undergone gender reassignment and is covered by any corporate insurance or benefit policies, the providers of such policies should be informed as a failure to do so may invalidate the policy. However, employers should ensure that the employee is informed of the disclosure and the reason for it beforehand.

Under the state pension scheme, everyone born after April 1955 will receive a state pension at 65. However, women born before 1950 can claim a pension at 60, and those born in the five year period between those two dates will claim a pension at a point between those two ages. However, transsexuals cannot change their birth certificates and for the purposes of the state pension scheme, will retire and claim their pensions at the age appropriate for their original birth gender. Employers should take care that appropriate records are kept to reflect this point. If the employee does not want colleagues to know that he or she is transsexual, it is particularly important that this information is kept confidential and that the true reason for an apparent early or late retirement does not become public knowledge.

The best practice for dealing with an employee who intends to undergo gender reassignment is to discuss the situation with that employee and agree a process. Issues to consider together with the employee include:

1. whether the employee will be happy to stay in their current position or whether they would prefer to change shifts, for example;
2. the expected timescale of the procedure and any time off which may be required;
3. the use of single-sex facilities (see above);
4. the point at which the employee wishes to his or her records to be amended and will want to change his or her name and gender;
5. whether the employee would like to tell others or would prefer that the employer briefs colleagues;
6. and agreeing a procedure for adhering to any dress codes which affect that employee.

The period of adjustment may be a stressful one for a person undergoing gender reassignment, and will require consideration and understanding from the employer to avoid misunderstandings and possible complaints by the employee. However, if the subject is tackled as soon as it arises through discussion with the affected employee, and possibly also by raising awareness of the medical condition amongst the work force, it should be possible to relatively small adjustments that will make the situation less difficult for all concerned and, for the employer, lessen the risk of a claim for discrimination.