Gender identity has its day in court

Employers may have seen recent press reports about the transsexual employee, Marlene (formerly Malcolm) Davidson, who won her claim for sex discrimination against her employer.

Davidson was forced to resign due to her treatment at work once she began the procedure for gender reassignment. Gender reassignment is the medical term for the process that enables transsexual people to alter their bodies to match their gender identity.

The Exeter tribunal heard that Davidson was picked on by colleagues, told that her long hair and ear studs were against the uniform code, and passed over for promotion on five occasions.

Unlawful treatment

Since the introduction of the Sex Discrimination (Gender Reassignment) Regulations 1999, it has been unlawful to discriminate against employees who intend to undergo gender reassignment, are undergoing the process or have done so in the past. The regulations amended the Sex Discrimination Act 1975, so that discrimination on these grounds amounts to unlawful sex discrimination.

A new definition of harassment introduced into the Sex Discrimination Act on 1 October 2005 also applies to harassment on grounds of gender reassignment.

An employer who takes all reasonable steps to avoid discrimination occurring will have a defence to a claim brought by an employee. But it is a difficult defence to establish, and employers must ensure they create an environment in which such behaviour will not be tolerated. Two possible scenarios could present problems:



  • An employee decides to have gender reassignment.
  • An employee had gender reassignment in the past and the employer finds out.

Handle with care

Both scenarios require sensitive handling. In the first it is essential that managers discuss and agree with the employee how the process is to be handled. An existing employee is also entitled to confidentiality, although those with whom the employee has had and will continue to have contact will need to be informed .

Employers should discuss issues such as:



  • How much time off will be needed for treatment?
  • Does the employee want to remain in their current post or be redeployed?
  • When do they intend to change their name, and pre-sent as the opposite gender?
  • How and when would the employee like other staff to be informed?
  • Does any type of dress code need to be modified?

Respect confidentiality

In the second scenario, the employer must ensure that the employee’s confidentiality is respected and their gender status is not disclosed unless they wish it to be.

Unauthorised disclosure could amount to a breach of the Data Protection Act and give rise to a claim for constructive dismissal.

Reports suggest that Davidson has been awarded an undisclosed amount of damages, thought to be around £25,000. But the employer was fortunate to avoid a higher pay-out, as awards for discrimination are unlimited.

In addition to an award for injury to feelings (which can be as much as £25,000 in serious cases), an employee can also claim for loss of earnings.

Their confidence may be so shaken by the treatment that they have endured or, worse still, their health affected so that in the most serious cases, an employee can be left permanently unfit to work. Under these circumstances the employer will be liable to compensate them up to retirement age.

What you should do if an employee is undergoing gender reassignment



  • Discuss and agree with the employee how the process is to be handled.
  • Check that your grievance or harassment policies cover discrimination on these grounds.
  • Consider awareness training or briefing sessions for existing employees.
  • Respond to any complaints of harassment from a transsexual employee.

Mary Sutton, employment partner, Davies Lavery

For examples of good practice, consult the guide to the regulations at www.womenandequalityunit.gov.uk/legislation/discriminiation_act/gender


 

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