Despite this growth however, many employers are still unaware how they should deal with the sensitive personal issues involved.
The nature of gender reassignment
Some of those wanting reassignment are suffering from Gender Identity Disorder. They choose to undergo hormone replacement therapy to make the physical change to their chosen identity. A minority of these people also undergo gender reassignment surgery. However, before transsexuals will be considered for surgery, they are expected to live in their chosen gender for at least one or two years. This is often a long and difficult process for the individual and a time when they may experience discrimination and prejudice.
Recent Cases
There have been a number of recent employment tribunal cases in this area. In Gaynor v Exel Europe (April 2008), a transsexual lorry driver successfully claimed sex discrimination and constructive dismissal when, during her pre-operative phase, she started wearing makeup and women's clothing to work. She had her shifts reduced and was taunted by colleagues. In Marland v P&O (August 2006), the successful claimant was a transsexual who worked in the engine room team on a P&O ferry suffered discriminatory comments, such as "we are all male here". Staff had also insisted she use the male changing room.
The legislation in brief
Since 1999, the Sex Discrimination Act (1975) has expressly included discrimination against men and women on the grounds they have undergone or about to undergo, gender reassignment. In other words, discrimination on these grounds is treated in the same way as discrimination on grounds of a person's sex. The Gender Recognition Act 2004 allows transsexuals to register with the gender recognition panel, then to marry and be given a new birth certificate, all using their acquired gender. There are some limited exceptions to the prohibition against discrimination, namely:
- If there is a genuine occupational qualification for the job to be done by a person of a particular sex which makes it reasonable to prevent the transsexual person from doing it
- If the job involves conducting intimate searches pursuant to statutory powers;
- If the job involves working in a private home where there would be close physical contact or knowledge of a person's life, and the employer can show that someone would object;
- It is possible for an organised religion to refuse to employ a transsexual person where there are genuine religious reasons for doing so, even if the person has a gender recognition certificate.
Sick leave and disability
Employers must recognise that in some circumstances, they might have duties to the transsexual person under the Disability Discrimination Act 1995. Conditions such as Gender Disphoria and Gender Identity Disorder might give rise to problems which could fall within the definition of "disability" under the Act or there may be associated psychiatric problems which could amount to a disability. In some cases employees undergoing gender reassignment surgery may require significant time off work to recover. In the light of the recent House of Lord's decision in Lewisham v Macolm, an employer will be expected to treat a person who is classed as disabled and is spending time off work with one of these conditions no differently from any employee who is unable to attend work for a different reason.
Training and briefing colleagues
The nature of the recent cases suggests that there is widespread ignorance and prejudice in the workforce. Issues relating to gender reassignment should be included in diversity training for the whole workforce, but in practice they rarely are. This is important for various reasons. It will pave the way for any specific briefing which is needed in relation to a transsexual employee. Also, the employee is under no obligation to disclose their status. Proper training may help to create an environment where the employee feels it is easier to raise these issues.
Use of facilities
One matter which often features in the reported cases is the use of single sex facilities. The employee should be able to use the facilities for their chosen gender. The point of change should be a matter to be agreed with the employee but it will often be the point of change of social gender.
Consultation
Sensitive consultation with the employee will help to establish the likely timescale, when and to what extent the other workers and clients need to be briefed and whether they would like to speak to them themselves or whether they would like the employer to do it for them. Other important matters to discuss are the point of any change of name, personal details and social gender and how to handle any negative reactions from other employees. Consultation with the employee will also establish the point in time at which name and social gender will change, the application of dress codes, and what time will be required for medical treatment. The point of change of social gender, when employees often take a short time off work, might be a good time for briefing the workforce.
Conclusions
Gender reassignment affects a small but statistically significant part of the workforce. It should be specifically addressed in employers' policies and diversity training and, if appropriate, in contracts of employment. This should help to avoid problems due to ignorance and prejudice among the workforce and ensure that the dignity of transsexuals is properly respected.