Transsexuals in the workplace: Crossing the gender divide

There are about 5,000 transsexual people in the UK. Many have undergone surgery to match their bodies to their gender identity, a treatment known as gender reassignment. Although not of great significance in statistical terms, transsexuality has made a mark in the legal world, particularly relating to fundamental personal rights.

Until recently, anyone who claimed to be a man trapped in a woman’s body, or vice versa, faced abuse or ridicule. However, in the last decade transsexuality has achieved greater social understanding and acceptance, as evidenced by the recent case against the low budget airline FlyBe.

In November 2005, the Exeter employment tribunal ruled that managers at FlyBe had acted unlawfully by bullying a transsexual airline worker. The worker had been mocked, bullied and told to use the disabled lavatories, and was overlooked for promotion five times. The airline was criticised by the tribunal for failing to give the employee enough support.

Gender reassignment is a procedure involving commitment and perseverance. Before transsexuals are considered for surgery, they are expected to live in their chosen gender role for at least one or two years. In the difficult time before hormones produce major changes and prior to surgery, they may experience daily discrimination and prejudice.

Many employers are not aware of how they should deal with such a sensitive and highly personal situation as transsexuality, either in terms of providing appropriate support for the individual or in respect of training and guidance for fellow employees.

Legislation is now in place in the UK to ensure transsexual people are protected from discrimination and harassment.

Gender reassignment regulations

After numerous high-profile cases, the Sex Discrimination Act 1975 was amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 to make it clear that transsexual men and women are expressly included in the Act where they suffer discrimination because they have undergone, or are about to undergo, gender reassignment.

The Gender Recognition Act 2004 has ensured that transsexual people who have successfully registered with the gender recognition panel will be recognised, can marry, and be given a new birth certificate – all using their acquired gender.

But employers should not rely on legal requirements alone. Successful and effective organisations will have diverse workforces and ensure good employment practices regardless of sex, sexual orientation or gender reassignment. So effective management of transsexuality in the workplace is vital.

Consultation with the employee can ensure the situation is handled effectively. The employer should discuss with the individual how they would prefer to handle the situation and follow a process agreed between them.

The individual may not wish to let anyone know of the change and may need extra support going through a difficult process. Also, amendments may be required to records and systems – all references must reflect current name, title and sex.

What to consider
An employer is obliged to consider:

  • whether a transsexual person is adequately covered by existing policy on issues such as equal opportunities, confidentiality, harassment, allocation of resources (such as office space and equipment), access to development (such as training, secondment, internal job vacancies and promotions), benefits such as pensions and, if not, how these will be amended.
  • whether training or briefing of colleagues or clients will be necessary, and at what point and by whom this will be carried out (consider whether the training should relate only to gender reassignment or be part of wider diversity training).
  • whether the employee is to stay in their current post or be redeployed (this cannot be forced on the employee, but they may prefer it).
  • the expected timescale of the medical and surgical procedures.
  • the expected point or phase of change of name, personal details and social gender and how this will affect, for example, the use of male or female toilets, changing rooms, dress codes etc.
  • what time off will be required for medical treatment, bearing in mind that appointments will often involve travel.
  • whether the employee wants to inform their line manager, colleagues and clients themselves, or whether they would prefer the company to do this for them once the change has occurred.
  • how to handle any harassment or hostile reactions from colleagues or third parties such as clients, customers or suppliers.

It is important to note that an employee is under no obligation to disclose their status. If the employee wishes to explain the situation to their colleagues, education should take place on two levels: general information about transsexuality, and specific information to help people to understand the situation of the particular person involved.

At the point of change of social gender, it is common for transsexual people to take a short time off work and return in their new name and gender role. This is often a good time to brief contacts.

Again, the legal obligations of the company and its staff, and the unacceptability of harassment, should be made clear. Employees should be reminded that if there is a breach, disciplinary action will follow.

Single sex facilities
Although it might seem a small point, the use of single sex facilities has caused many problems in the workplace. The employer and employee should agree the point at when using facilities such as changing rooms and toilets should change from one sex to the other. An appropriate point for change of facilities for the gender-changed employee is at the point of social gender change.

It is unacceptable to insist that transsexual employees use separate facilities, such as a disabled toilet, once they are operating fully in their chosen gender identity. Perhaps it could be useful for the company to employ a policy for the use of toilets, such as the ladies’ facility is accessible to “all individuals identifying and living as women full-time”, and vice versa.

Gender reassignment is a complex and sensitive issue that needs to be included in employees’ diversity training and handled with care.

Ranjit Dhindsa is a partner at law firm Reed Smith LLP

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Significant transsexual cases

In the landmark case of P v S and Cornwall County Council (1996), the claimant, who had begun living as a female as part of a process of gender reassignment, was dismissed and subsequently raised a sex discrimination action. The tribunal found that P had been dismissed not for redundancy reasons (as the employer claimed) but because of her transsexualism. No remedy could be awarded under the Sex Discrimination Act 1975 as it was too narrow in its protection, but the scope of the EC Equal Treatment Directive was sufficient to find that the treatment of the claimant had been unfair on grounds of sex.

KB v National Health Service Pensions Agency (2004) decided that the transsexual partner of a long-standing employee should be allowed a survivor’s pension if the employee predeceased her partner, despite the fact that the UK law at that time would not recognise KB’s partner as a legal spouse.

In the 2004 case of A v Chief Constable of West Yorkshire Police, the employer had rejected A, a female applicant to the police force, after she sent in her medical references, even though she had passed all the appropriate tests. The question was whether she had been rejected because of her transsexualism or whether she would be unable to carry out a full range of duties, in particular legal searches on women and men. It was held that European law required that a transsexual person must be recognised in her reassigned gender for the purpose of sex discrimination law.

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