I manage a women-only driving school. I recently discovered one of my new instructors is a transsexual and was formerly a man. This doesn’t bother me, but some clients might mind. Legally, where do I stand and what are the implications?
Putting aside the question of whether it’s lawful to only employ women, you need to be careful. If the transsexual instructor is subjected to harassment by colleagues, your business runs the risk of being liable for that discrimination. Individuals who are undergoing or have undergone gender reassignment are protected under regulations introduced in 1999, subsequently inserted into the Sex Discrimination Act. You as the employer can be liable for discrimination occurring during employment unless you took all reasonable steps to prevent it occurring.
The position regarding possible discrimination by clients is similar, due to recent changes in the law – although you’ll only become liable if you know of harassment that’s taken place on at least two previous occasions.
You should also prepare for possible complaints from female clients – either on religious or ethical grounds, or because they argue your employee isn’t a woman and the basic service offering of your school isn’t women only.Any religious arguments will be legally weak so I advise you simply to understand what you’d say and do if challenged by clients on such grounds.
Whether there is any factual and legal basis for such an assertion depends on whether your transsexual instructor is male or female. The previous approach of courts undertaking an invasive assessment of gender based on medical or surgical status has been overtaken by the introduction of gender recognition certification. This enables applicants to obtain a certificate legally establishing their acquired gender for all purposes.
This is complex and delicate issue. It would, therefore, be wise to seek the employee’s views in case any problems arise, so you’re acting at all times with her knowledge and consent.
Ashley Norman, employment partner, Pinsent Masons