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 commitment...to 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.