Law changes on horizon for gender switch issue

Gender reassignment is a tricky issue for HR managers, and one being given more attention in the legal world

It is Friday afternoon. You are looking forward to the weekend … and then there’s a knock on the door. It’s Fred, the works foreman. He tells you that on Monday he will come to work dressed as a woman, from which time he would like to be known as Francesca.

Gender reassignment is an issue which can tax the skills of the most experienced HR professional.

Current law

Fred is protected under The Sex Discrimination (Gender Reassignment) Regulations 1999. These extend the Sex Discrimination Act 1975 to someone undergoing gender reassignment. This circumvents a difficulty which bedevils sexual orientation issues under UK law. Generally, discrimination based on sexual orientation does not constitute sex discrimination under Article 141 of the Treaty of Rome.

This was decided in Grant v South West Trains, a case involving a refusal to extend to a lesbian partner travel concessions available to partners in a heterosexual relationship.

In Smith v Gardner Merchant, it was argued that the word “homosexual” was gender-specific, so that homophobic abuse was sex discrimination. The EAT dismissed this, although it indicated that a claim could be sustained if the treatment of a male homosexual was at variance with that of a female homosexual.

A similar argument was brought in Pearce v The Governing Body of Mayfield Secondary School by a lesbian who suffered homophobic abuse by pupils. It was argued that the words “lesbian” and “dyke” were gender-specific. The argument that this itself constituted sex discrimination failed.

Human Rights Act

In October the Human Rights Act comes into force. This will allow public sector staff to enforce rights under the European Convention on Human Rights directly in the UK courts. It will also require courts to construe general UK legislation in a way which gives effect to convention rights.

Article 8 of the convention requires respect for private life. This was exploited in the European Court of Human Rights to overturn the Government ban on homosexuals in the armed forces.

What this Act will not do, however, is create directly enforceable rights against private sector employers. But the new Article 13 in the Treaty of Rome authorises action to combat discrimination based on a variety of grounds, including sexual orientation.

Future law

The European Commission has proposed new laws by the end of 2002. In the UK, legislation may be introduced to establish parity between heterosexuals and homosexuals before then. Also, the recent draft charter of human rights for the EC contains specific commitment to banning sexual orientation discrimination.

At a more general level, failure by an employer to provide appropriate support would breach the implied obligation of trust and confidence. If the employer encounters difficulties and feels the only way to resolve these is through dismissal of the homosexual (in principle, a legitimate response – see Treganowan v Robert Knee) this could be an unreasonable response, and so unfair.

So, to return to Fred, how should the employer react?

The priority is to convince Fred that he has your support. Next, broach the issue with Fred’s colleagues and get them on side. Often a workforce is supportive of a colleague in this situation.

More difficult issues arise with outsiders. Customers and suppliers can be approached, and support and understanding enlisted. Regrettably it is those situations that you cannot manage which can be the most intractable.

Nicholas Moore is a partner and head of employment at Osborne Clarke OWA, in the City of London. He can be contacted on

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