Legal Q&A… Transsexuals

Tribunal claims for discrimination based on gender identity are still rare in UK tribunals. However, the recent claim brought by a transsexual against Hitachi Data Systems – thought to be one of the biggest ever discrimination claims – has highlighted the difficulties for employers in dealing with transsexuals in the workplace.

Is there a process we need to follow with a transsexual to treat them fairly?

AThere is no set process, but it is advisable to consult, plan and agree with the employee on how such a sensitive issue should be dealt with. For example, of particular concern for transsexuals may be when they want their co-workers to know of the change, whether this should be in advance of the change, whether the employee wants to inform clients and colleagues themselves or whether they would like the company to do this for them. You should discuss the expected timescale of the medical and surgical procedures, including whether the employee will require any time off. Note that most appointments are likely to involve some travel time as well.

If a transsexual wants to tell their co-workers of their sex change, what further information should we give our staff?

Education of staff should take place on two levels, with the employee’s prior agreement. On one level, general information on transsexuality should be provided to staff, and then specific information to enable co-workers to understand the particular position of their colleague. At the point in time of change of social gender, it is common for transsexuals to take some time off from work and then return with their new name and gender. This may be an appropriate juncture at which to brief co-workers.

As part of this information process, you will need to consider how to handle any hostile reactions from employees or third parties, such as clients, suppliers and customers. Make clear to staff what their and the company’s legal obligations are and ensure they understand that any harassment of the transsexual employee is unacceptable. Remind employees that if there is evidence of harassment, then disciplinary action will follow. Also let the transsexual employee know that if they feel they are being harassed, they should bring it to your attention.

What should we do about single-sex facilities in the workplace?

A You should seek to agree with the employee the point at which the use of facilities such as changing rooms or toilets should change from one sex to the other. An appropriate point may be the time of change of social gender. While it is not acceptable for an employer to insist that a transsexual uses separate facilities – such as a disabled toilet – once the employee is operating fully in their chosen gender, this may be an acceptable solution while the process is going on.

Should we consider transferring the transsexual to another role?

You cannot force the transsexual to move into another role at your organisation, in the same way that you would be unable to do this with any other employee. A better approach would be to enquire whether the employee would like to stay in their current role or be redeployed. The employee may prefer this anyway.

Do we need to take any steps in relation to the employee’s benefit entitlements?

You should check whether the transsexual person is adequately covered by existing benefit arrangements, such as pensions, private medical insurance, death in service and permanent health insurance. If not, you must take steps to ensure the person is adequately covered. In a recent case – Richards v Secretary of State for Work and Pensions – the European Court of Justice held that a male to female transsexual had been discriminated against by having been refused the state retirement pension at the age of 60. Since the case was brought, UK law has been changed by the Gender Recognition Act 2004, which now allows people to qualify for a pension once they have obtained a gender recognition certificate. You should bear this in mind when a transsexual is approaching the age when they can have access to their pension.

Are there any data protection implications of gender reassignment?

Yes, an employer must observe its obligations under the Data Protection Act. All references to the employee in records and systems must reflect the employee’s current name, title and sex. All certificates relating to higher education and professional qualifications should be reissued to protect the employee’s privacy.

More information about the Hitachi case 

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