What has been the impact of discrimination law on transsexuals and how will
it affect the workplace? By Joan Lewis
and Linda Goldman
The Sex Discrimination Act (SDA) came on to the statute book in 1975 at the
same time that the Equal Pay Act 1970 came into force. These Acts form the
kingpin of legislation to ensure equality of treatment for the sexes in the
workplace and were originally designed to correct injustices suffered by women
in terms of pay and access to work.
During the last decade or so, the concept of gender has shifted to that of
the person. The European Equal Treatment directive (number 76/207) and Article
119 of the Treaty of Rome have formed the legal framework for many questions to
be answered in the European Court of Justice where member states of the
European Union have had their legislation subjected to scrutiny and where
extensive case law has developed.
Men are now as likely to bring sex discrimination or equal pay claims as
their female counterparts. Those whose gender is changed have been involved
increasingly in employment litigation in recent years.
Gender-specific protection
The Equal Treatment directive and current statutes protect persons from
discrimination on the basis of sex or, in the employment field, discrimination
on the grounds of being married. There is no overt reference to statutory
rights for transsexuals or homosexuals. However, the Sex Discrimination (Gender
Reassignment) Regulations 1999, widen the scope of the SDA within the current
social perspective. Although the UK is likely to see extension to the current
anti-discrimination legislation to cover sexual orientation in addition to
transsexualism, the Human Rights Act 1998 (HRA), now in force, increases the
range of protection for those who express a greater variety of individual
sexuality.
The HRA provides statutory recognition in Article 8 of the European Convention
on Human Rights, which recognises the right to have private and family life
respected; Article 10 recognises the right to freedom of expression. These two
factors should ensure that the sexuality, gender or change thereof does not
affect the right of an individual to carry out a day’s work in a discrimination
free environment.
Until the last decade, there was no significant case law affecting
transsexuals in the workplace. Indeed, the law remains fixed that persons who
undergo a sex change operation retain their biological gender as determined at
birth (White v. British Sugar Corporation, 1977, IRLR 121). In 1996, in P v. S
& Cornwall County Council, the ECJ ruled that the Equal Treatment Directive
applied to transsexuals in a decision which encourages the view that the next
step, on the grounds of logic and policy, is to extend statute to cover
discrimination of sexual orientation more generally, rather than for the courts
to continue to rely on individual precedents.
The English courts swiftly accepted the logic and reasoning of the ECJ in
relation to transsexuals. The approach was endorsed in 1997 in Chessington
World of Adventures v. Reed where it was held that a female suffered sex
discrimination when she was about to undergo gender reassignment and was
harassed mercilessly during the pre-operative course of treatment.
Further protection is given to trans-sexuals by the new Gender Reassignment
(SI 1999/1102), in force since May 1999. They amend the SDA by the insertion of
new sections to protect individuals from discrimination on the grounds that a
person intends to undergo, is undergoing or has undergone a gender
reassignment. This is defined in section 82 as, "a process which is
undertaken under medical supervision for the purpose of reassigning a person’s
sex by changing physiological or other characteristics of sex and includes any
part of such process."
Limitations of statutory protection
Gender reassignment is a major surgical and endocrinological procedure which
does not include transvestism, although there may be a stage in the preliminary
process where the patient dresses in the manner of the gender which he or she
proposes to adopt. Thus, a man who wishes to attend work dressed as a woman (or
vice versa) may be subject to disciplinary proceedings unless the conduct is
undertaken under medical supervision and it is part of a process which involves
the changing of physiological or other characteristics of sex.
If the nature of a person’s exterior garments, make-up or hair-style renders
the individual liable to dismissal, the claim may be on better grounds if
brought for unfair dismissal in addition to sex discrimination. Thus, Ian
(later Christine) Sheffield, a pilot undergoing gender reassignment in the
mid-1990s, succeeded in a discrimination claim when Air Foyle did not offer her
an interview, short-listing other less qualified applicants.
Practical implications
Occupational health personnel should be aware that there is specific
provision in the new section 2A(3) of the SDA dealing with how absence due to
undergoing a gender reassignment is to be treated. The employee must not be
treated less favourably than someone who is absent through sickness or injury.
There is an alternative catch-all provision which allows tribunals to look at how
people, absent for reasons other than sickness or injury, are (or would be)
treated. If the tribunal thinks it is reasonable that the employee should be
treated no less favourably than those absent for a non-sickness reason, that
may form the basis of a comparison upon which a finding of discrimination may
be based.
Not all employees who have surgery to change their sex are treated as
compassionately as the former Reverend Peter Stone who returned to parish
duties on 28 November 2000 (The Times, 29 November) in Swindon as Reverend
Carol Stone, having undergone privately funded surgery during the summer. She
told journalists that she had only two vocations in her life – "being a
priest and a [being a] woman." It is a sign of progress in eliminating
discrimination that she has been able to do so with the support of the church
and her parishioners. Industry can learn from this lesson.
Alastair B Hodge, a barrister practising at 7 New Square, Lincoln’s Inn,
London, carried out the research for this article
Equal Treatment directive
Current case law is affected by interpretation of the directive by the ECJ.
Salient features are: equal treatment of persons at work with reference to
access to employment, training, promotion and in respect of working conditions,
including conditions relating to dismissal there shall be no discrimination whatsoever
on grounds of sex either directly or indirectly. By reference, in particular to
marital or family status, some occupational activities may preclude equal
treatment, particularly where the sex of the individual is the determining
factor in access to the specific employment
Legal overview
P v S and Cornwall County Council, 1996, IRLR 347
The applicant, who was then male, was hired as a general manager. He was
dismissed a year later when the employer learned that he intended to undergo
gender reassignment surgery. The [then] industrial tribunal held that the case
fell outside the scope of the Sex Discrimination Act 1975, but referred the
case to the ECJ for consideration of whether the Equal Treatment directive
applied. ECJ held that the scope of the directive could not be confined simply
to discrimination based on the fact that a person is of one or other sex. The
rights which it sought to safeguard applied to those whose gender was
reassigned.
The Advocate General said that there is "irrelevance of a person’s sex
with regard to the rules regarding relations in society. Whosoever believes in
that value cannot accept the idea that a law should permit a person to be
dismissed because she is a woman, or because he is a man, or because he or she
changes from one of the two sexes… by means of an operation which – according
to current medical knowledge – is the only remedy capable of bringing mind and
body into harmony. Any other solution would sound like a moral condemnation – a
condemnation, moreover, out of step with the times."
Chessington World of Adventures v Reed, 1997, IRLR 556
In 1991, the applicant announced a change of identity from male to female.
For the next three years she was subject to a campaign of harassment by some of
her male colleagues. She went off on sick leave and five months later was
dismissed on the ground of lack of capability. The Employment Appeal Tribunal
upheld the decision that the Sex Discrimination Act could, in the light of P v
S & Cornwall County Council, be construed so as to cover unfavourable
treatment following a person’s statement of intention to undergo gender
reassignment stating: "Where, as in this case, the reason for unfavourable
treatment is sex-based, that is, a declared intention to undergo gender
reassignment, there is no requirement for a male/female comparison to be made.
In these circumstances we interpret the 1975 Act consistently with the ruling
of the ECJ in P v S & Cornwall County Council."
R v Secretary of State for Defence, ex parte Perkins, 1997, IRLR 297
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Here is an important quote from the decision. "If, as the Advocate General
[in P v S] indicates, transsexuals’ right to sexual identity embraces the right
to marry persons [according to English law] of the same sex, to allow
discrimination against transsexuals on ground of sexual orientation would
undermine, if not totally defeat, the protection to which the court in
Cornwall’s case held them entitled, namely discrimination on the grounds of
their transsexuality. The proper way to regard the decision in Cornwall’s case
may well be that trans-sexuals are equally protected on the ground of sexual
orientation.
"And if transsexuals, even before and without any gender reassignment,
are entitled to protection against discrimination on grounds of sexual
orientation, it is difficult to see how such protection can be withheld from those
of homosexual orientation generally."
