Accessibility Information
Understanding the terms
that are used
Trans issues and language
According to the latest figures in 2009 (GIRES-external
link) approximately 1500 adults every year seek out medical advice in
the UK concerning their gender identity, a number which has grown
steeply in the last five years. A proportion of those people will
proceed to the point where they have permanently changed their social
gender role. This is evidenced by the fact that approximately 300 people
currently seek legal recognition every year under the Gender Recognition
Act 2004.
There are also an increasing number of children and young people being
referred for specialist evaluation by the only centre for this in the
UK; The Tavistock and Portman Clinic. Numbers are increasing rapidly, as
awareness of gender identity issues becomes more widespread. The numbers
of young people now changing social gender roles in school is also
increasing.
The medical term for people who are uncomfortable with the role they are
expected to fulfil because of their physical sex at birth is 'Gender
Dysphoria'. Those who seek to permanently change their outward physical
appearance in order to live more comfortably in the opposite gender role
are described as 'transsexual people'.
The process of changing one’s gender role is referred to as
'transition'.
The original American usage of the term 'transgender' referred to people
who adopt the opposite gender role from the one assigned to them at
birth, but without the formal clinical diagnosis and control connected
with the term 'transsexual'. They may change role permanently or only
some of the time. Distinctions are blurred, however, because some people
may obtain hormones unofficially and/or go abroad for privately arranged
surgeries.
Inevitably it is much harder to make any accurate estimate of such
people, although their numbers are thought to be significant.
Transgender people like this are just as likely to encounter
discrimination as transsexual people whose gender transition has been
medically supervised.
Nowadays the term 'transgender' is used by many people as an umbrella
term (as we do in this site). An alternative word is 'trans'. The use of
'trans' is preferred by some as it avoids ambiguity and recognises the
original distinct meaning of 'transgender'.
Trans as an umbrella term includes transsexual people, transgender
people, people who cross-dress and a range of other distinct forms of
identity and expression. Strangers are unlikely to be aware of the
distinctions and simply perceive someone who appears to violate
conventional gender 'rules'.
There is a lack of agreement between people as to which terms they
prefer. Therefore the safest practice is always to ask someone which way
they would prefer to be described.
It is advisable to only ever use these terms as adjectives. Calling
someone 'a transsexual' is often considered to be as rude as calling
someone 'a black'. Similarly it is considered best practice to refer to
'a transgender person' rather than 'a transgendered person'.
Regardless of how far a trans person’s transition has progressed it is
always considered polite and respectful to use terms that acknowledge
their identity as a man or woman. Thus a transsexual person who is
transitioning from a former male role to a female one would usually wish
to be referred to as 'she' or 'her' and for people to refer to her as a
woman. The same applies in reverse to trans men (going from female to
male).
Trans people are therefore quite clearly diverse. People perceive and
express their gender identity in different ways, The experience of
discrimination, harassment, victimisation or adverse outcomes is common
to all trans people though.
Transgender: what the law
says
Protections in the Sex Discrimination Act for transsexual people
Sex Discrimination Act
The Sex Discrimination Act 1975 makes it unlawful to discriminate on the
ground of sex in employment, education and the provision of housing,
goods, facilities and services.
Sex Discrimination (Gender Reassignment) Regulations
The Sex Discrimination (Gender Reassignment) Regulations 1999
(external link) extended the Sex Discrimination Act to make it unlawful
to discriminate on grounds of gender reassignment, but only in the areas
of employment and vocational training. These Regulations do not apply to
discrimination in education or in the provision of housing, goods,
facilities and services. However subsequent regulations (see below) have
addressed these areas from April 2008.
In employment and vocational training, the Sex Discrimination Act
protects people who are discriminated against because they:
●intend to undergo gender reassignment
●are currently undergoing gender
reassignment
●have already undergone gender reassignment
Gender reassignment is defined in the regulations as “a process which is
undertaken under medical supervision for the purpose of reassigning a
person's sex by changing physiological or other characteristics of sex,
and includes any part of such a process”. This means that an individual
does not need to have undergone any specific treatment or surgery to be
protected by the law. It is the process that matters.
The employment provisions of the SDA cover recruitment, transfer,
training and promotion, access to work-related benefits, facilities and
services, dismissal, and any other detriment. It is also unlawful for an
employer to instruct someone else to do something discriminatory – for
instance, telling an employment agency not to hire a transsexual person.
Pressure to discriminate is also unlawful – for example, employees
threatening not to work unless their employer dismisses someone who is
undergoing gender reassignment.
Anyone who is treated less favourably by an employer or vocational
training body on any of the above grounds compared with someone for whom
no gender reassignment grounds exist will have a claim under the Sex
Discrimination Act.
Victimisation
People have the right not to be treated less favourably compared to
others because they have acted in good faith to assert their rights
under the Sex Discrimination Act. You will have a victimisation claim if
your employer treats you less favourably than another employee because
you have complained about discrimination on gender reassignment grounds;
for example if your employer dismisses you or does not promote you
because of your complaint.
Discrimination in vocational training
There must be no unlawful discrimination against transsexual people who
apply for vocational training provided by employers or training
organisations, including the Training and Enterprise Councils and their
suppliers (in Scotland, the Local Enterprise Companies). There must be
no unlawful discrimination against you by such bodies in terminating
your training. This means equal access to training on equal terms - and
an equal chance to complete it.
Employer and Employee Liability
Employers can be held responsible for discriminatory acts by their
employees, unless the employer can show that he or she had taken such
steps as were reasonably practical, to stop the employee from doing the
particular act or acts of that kind.
Employees remain individually liable for their own discriminatory acts,
even where the organisation is also potentially liable.
The Sex Discrimination (Amendment of Legislation) Regulations
2008
The Sex Discrimination (Amendment of Legislation) Regulations 2008
(external link) extended the Sex Discrimination Act to make it unlawful
to discriminate on grounds of gender reassignment in the provision of
goods, facilities and services as well as in employment and vocational
training.
Technically the regulations only apply to people who are planning to
undergo, are undergoing or have undergone gender reassignment as in the
previous section. However, service providers are much less likely than
employers to know whether an individual is transsexual or transgender.
Some people may also be mistakenly perceived to be trans.
To ask would constitute harassment. Therefore it is best practice to
treat all customers equally and respectfully, regardless of how they
look or any perceived ambiguity in their gender.
Rights under the Gender Equality Duty
The Equality Act 2006 introduced the
Gender Equality Duty, (external link) which places an
obligation on public bodies to pay due regard to the need to address and
eliminate the unlawful discrimination and harassment of transsexual
people in employment, related fields and vocational training (including
further and higher education) and in the provision of goods, facilities
and services.
The definition of 'transsexual' used in the gender equality duty is the
same as that in the SDA, but it is recommended as good practice that
public bodies apply any provisions for transsexual people to those who
define as transgender as well.
Gender Recognition Act 2004
The
Gender Recognition Act (GRA) (external link) gives
legal recognition to transsexual people in their acquired gender.
If an application to the Gender Recognition Panel is successful, the
transsexual person's gender becomes for all purposes the acquired gender
and they will receive a full gender recognition certificate (GRC). The
GRC allows for the creation of a modified birth certificate reflecting
the holder's new gender.
In specified circumstances the GRA prohibits disclosure of the fact that
someone has applied for a GRC or disclosure of someone's gender prior to
the acquisition of the GRC. Such disclosure constitutes a criminal
offence liable to a fine.
The privacy provisions apply in most circumstances where the information
is received by someone acting in an official capacity. The exceptions
are very narrowly drawn, so it should generally be assumed that if you
are a employer, manager or colleague; or if you are working in any
capacity for an official body or service provider, the law will apply.
Unlawful disclosure applies not only to direct word of mouth
communication but also to uncontrolled access to paper or computer
files. A transsexual person may consent to you disclosing the
information if they decide that it is in their interests to do so.
However, such consent must be explicit. It may not be assumed.
As a general rule it is best to agree what to do with information when
an employee or service user informs you that they have applied for or
obtained a Gender Recognition Certificate. This may often necessitate
physically destroying records that reveal inappropriate information, or
sealing them for use in specified exceptional cases.
Human Rights law
In some cases trans people may feel their human rights are not being
upheld. For more information, see
What are human rights?.
Transsexual people: your
rights at work
Protection for transsexual people at work or in vocational
training
The Sex Discrimination Act (SDA) was amended in May 1999 to protect
transsexual people against discrimination in employment and vocational
training.
Employers must not discriminate on gender reassignment grounds:
●at the recruitment stage-this covers the
arrangements made for filling a vacancy, and in deciding who should have
the job
●during employment-this covers equal
treatment in promotion, training, transfer, and access to employment
related benefits, including pay, and entitles you to a working
environment free from harassment on the grounds of gender reassignment
●when ending your employment-this covers
dismissal and selection for redundancy.
If you want to take forward a case under the Sex Discrimination Act,
find out more details in taking a sex discrimination case.
Find out more about your rights at work from the working and earning
section.
Go to workplace problem solving for information about how to take action
at work if you experience discrimination
Taking a sex discrimination case
Transsexual people:
taking a claim forward.
This page explains what to do if you want to pursue a claim for sex
discrimination
Can I avoid embarrassing publicity?
Tribunal hearings are usually open to the public including the press. A
tribunal can, in certain limited circumstances make a restricted
reporting order. This means that the media cannot publish your name or
that of the respondents during the tribunal hearing. This order normally
ends when the tribunal reaches its decision and details and all names
are no longer confidential.
Note that most of the landmark cases involving transsexual people and
employment have involved anonymity being successfully requested and
granted. You can tell where this is the case because the claimant’s name
in the case title is replaced by a letter (which need not have any
connection with their actual name).
Transsexual people: your rights relating to the provision of goods,
facilities and services
Protection for transsexual people as customers and service users
The Sex Discrimination Act (SDA) was amended in April 2008 to protect
transsexual people against discrimination and harassment in the
provision of goods, facilities and services. This adds to the previous
protection in employment and vocational training.
The law applies to both public and commercially run services and
enterprises.
For instance:
●It is unlawful for a publican or shopkeeper
to refuse to serve a customer because they are intending to undergo, are
●undergoing or have undergone gender
reassignment.
●It is unlawful for a leisure centre to
refuse to permit a transsexual person to use their facilities.
●It is unlawful for a housing association to
refuse to offer accommodation to a transsexual person, or to offer
housing of lesser quality or on different terms
These are only examples. The law applies to most circumstances, with
only a handful of exceptions. Exceptions include:
For religious organisations an exception may only be made in the limited
circumstance where 'the place is (permanently or for the time being)
occupied or used for the purposes of an organised religion, and the
facilities or services are restricted to men so as to comply with the
doctrines of that religion or avoid offending the religious
susceptibilities of a significant number of its followers'
In hospitals and establishments for persons requiring special care and
attention it may also be permissible to take a less favourable approach
towards transsexual people in the provision of goods, facilities or
services provided that to do so is a proportionate means of achieving a
legitimate aim. Similar limited exceptions are applicable to charities
and the use of communal accommodation.
Example
A trans person who has undergone or is undergoing gender reassignment
may wish to use the facilities in a local sports centre, but fears they
will face barriers or discrimination. The Department of Culture, Media
and Sport has produced guidance about
transsexual
people taking part in sports (PDF) available on the Press for Change
website. Press for Change has also
published guidance for the
managers of sports centres (PDF) in how to help trans people to be
able to use their services safely.
Transsexual people: your rights relating to
privacy
Protected Information about transsexual people
Section 22 of the Gender Recognition Act says that:
'It is an offence for a person who has acquired protected
information in an official capacity to disclose the information to
any other person.'
'Protected information' means information which relates to a person who
has made an application under the Gender Recognition Act. This covers
both the fact of the application itself and, if the application was
successful, the fact that the individual was previously of the opposite
gender to the one in which they are now legally recognised.
A person acquires information in an 'official capacity' if they are
acting:
●in connection with their functions as a
member of the civil service, a constable or the holder of any other
public office or in connection with the functions of a local or public
authority or of a voluntary organisation,
●as an employer, or prospective employer, of
the person to whom the information relates or as a person employed by
such an employer or prospective employer, or
●in the course of, or otherwise in
connection with, the conduct of business or the supply of professional
services.
It is not an offence to disclose information obtained in these
circumstances if:
●the information does not enable the person
to be identified, or
●that person has agreed to the disclosure of
the information, or
●the person making the disclosure genuinely
does not know or believe that a full gender recognition certificate has
been issued, or
●the disclosure is in accordance with an
order of a court or tribunal, or
●the disclosure is for the purpose of
instituting proceedings before a court or tribunal, or
●the disclosure is for the purpose of
preventing or investigating crime, or
●the disclosure is made to the Registrar
General for England and Wales, the Registrar General for Scotland or the
Registrar General for Northern Ireland, or
●the disclosure is made for the purposes of
the social security system or a pension scheme, or
●the disclosure is in accordance with
provisions made through regulations which the Secretary of State is
permitted to make under the Act.
The law does not apply to information about a person’s gender
recognition application or gender reassignment history when the
information originates outside of an official setting – through social
contact, for instance.
What the law means
This means that you need to be very specific when dealing with managers
who employ you, and officials who provide services, about what you
consent to allow them to do.
People in authority may not have been trained to understand this aspect
of the law. However, ignorance is not a defence in these matters. It is
what is called a 'strict liability' offence, for which there are to
mitigating reasons other than the exceptions listed.
As it is in a transsexual person’s interests for officials to understand
the importance of these provisions, however, it is often better to be
prepared to help them by explaining their responsibilities.
The law does not just apply to word of mouth disclosure. Paperwork and
computer records are significant too. Therefore officials must be
careful about what they record and file about you (or what was recorded
and filed in the past) so as to avoid others from seeing information
which becomes protected as a result of a gender recognition application
and legal recognition.
Purpose of the law
The purpose of the law was to recognise that there are legitimate times
when people do need to know about a transsexual person’s gender
reassignment in order to do the best and right thing. The law is not
there to enforce absolute secrecy but to remind officials that they have
a serious responsibility for the potentially negative outcomes of using
information irresponsibly.
In other words, the law is there to assure transsexual people that when
they do share this information it will not be revealed to strangers who
don’t need to know.
In practice there may be circumstances where officials need to explain
that the inability to share the protected information with a colleague
could affect the services they receive. In such cases a responsible
official ought to explain the likely consequences of non-disclosure so
that the individual can make an informed decision to give permission for
limited sharing of the information. The decision to do this is entirely
voluntary though.
It is worth remembering that the use of personal information is strictly
governed by the Data Protection Act 1998 and by professional
registration bodies.
For example, when taking up a new employment it may be in your interests
for an occupational health specialist or medical examiner for the
employer’s pension and insurance schemes to be aware of the gender
reassignment aspect of your medical history. This is not to imply that
gender reassignment treatment introduces risks, but it may be helpful so
that these professionals can understand the rest of your medical history
properly.
When you supply the information you can point out that it is given under
the protection of Section 22 of the Gender Recognition Act, and what
that means.
Such professional examiners are used to dealing with intimate and
private medical histories all the time and report only their conclusions
about insured risks. The detail in their records is not accessible to
the organisations who contract their services. Therefore they will be
used to how to distil factual conclusions from the information they’ve
been given without revealing embarrassing detail.
Trans people: your right to change your
name
Record changes for trans people
The law throughout the United Kingdom permits people to change their
name at any time and without any special permission or process. This
applies to everyone, including people who change their gender.
In its simplest form anyone can change their name simply by announcing
that fact to everyone whom they deal with.
In practice, many authorities (e.g. banks) require something more
tangible in order to alter the records they keep about you.
The favoured approach used to be the so-called 'Deed Poll'.
Today, people usually use a legal instrument called a 'Statutory
Declaration'.
The best time to formalise a name change like this is when you first
commence living full time in your new ('acquired') gender role.
The Statutory Declaration process
Most high street solicitors can help you to draw up a Statutory
Declaration. There is a standard form of words in which you formally
renounce the use of your previous name and declare that you henceforth
intend to use the new one for all purposes. You sign the declaration in
both names and the solicitor puts an official stamp on the document.
The Statutory Declaration process usually takes less than 15 minutes and
is not expensive. Afterwards you can show the declaration to banks,
building societies, educational institutions, the Department of Work and
Pensions, Inland Revenue, etc... and ask them to alter their records
accordingly. They can only apply the same restrictions as they would for
anyone else doing the same thing. To apply any different rules because
you are changing your gender would be direct sex discrimination.
Specific processes for certain agencies
Some organisations have specific procedures for processing name changes
relating to gender transition. These procedures have often been in place
for 30-40 years and are not negatively affected in any way by the Gender
Recognition Act.
●The Department of Work and Pensions (DWP)
will alter your name on their records and will issue a new plastic
National Insurance Number Card with that name on it. They don’t alter
anyone’s National Insurance number under any circumstances. There is no
gender indication within the number and therefore no point to do so. A
change of name on its’ own does not alter the rest of your national
insurance / tax computer records, as you will remain a member of your
birth gender until such time as you successfully apply for legal
recognition. The Gender Recognition process issues instructions to the
DWP and Inland Revenue to make appropriate changes at that time.
●The Driver and Vehicle Licensing Agency
(DVLA) will change their records of your name and issue you with an
updated driving license on written request. In this case the procedure,
which has been used successfully for many years, includes the issue of
an amended driver number. Your driver number includes a gender marker.
This is updated to show your new social gender so that anyone inspecting
your driving license will see a code that concurs with your name and the
way you present.
●The process with passports has changed
slightly over recent years because of a greater need to prevent fraud.
However, the policy of the Passport Agency has always been to facilitate
issue of a replacement passport when the applicant has changed their
name and social gender role, backed by a letter from a medical
professional to confirm that the change is for gender reassignment and
intended to be permanent. As the process for any change of photo and
details involves an interview it is best to enquire with your local
passport office about what you should do and the evidence you need to
supply.
Processes like these were in place before the Gender Recognition Act and
remain unaltered by the introduction of the formal legal recognition
process.
Other organisations such as employers, educational establishments,
registration bodies, your local NHS GP, hospitals, utility companies,
and service suppliers such as banks should likewise be prepared to
change your details on request. Some may request evidence in the form of
a statutory declaration of your name change, but that is all.
Gender Recognition Certificates
Some organisations may mistakenly believe that they are not supposed to
change their records to show your new name and appropriate title (Mr,
Miss, etc..) until you have obtained a Gender Recognition Certificate.
This is incorrect and in most cases would constitute discrimination.
Furthermore, nobody is entitled to see or record the details of a Gender
Recognition Certificate if you have one. If someone requires proof of
your legal gender then you could show them your birth certificate.
The Gender Recognition Certificate (GRC) exists only for the Gender
Recognition Panel to instruct the Registrar of Births to make a new
entry in their register, from which a birth certificate can be drawn.
The document states clearly that it has no other purpose. Recording
sight of a GRC would automatically lead to a breach of Section 22 of the
Gender Recognition Act, since sight of the record by any other person
would constitute an unlawful disclosure of protected information.
Officials should therefore be gently advised against making up rules
involving GRCs.
For more information about the Gender Recognition Act, go to
'What the
law says'
Transgender case decisions
Here you will find a summary of cases that have a bearing on the rights
of trans people. Most of these were taken under the Sex Discrimination
Act relating to the Gender Reassignment Regulations (1999) and the
treatment of transsexual people in Employment and Vocational Education.
There is no case law yet pertaining to the provision of goods,
facilities and services. Some cases have also employed Human Rights
arguments or tested the rationality of public policymaking in areas such
as National Health Service treatment.
Employment Tribunal decision: X v Brighton and Hove City Council
[2006/7]
This employment tribunal case decision from 2006/07 was about
discrimination and victimisation of a transgender ex-employee. The
Council was ordered to pay £34,765.18 for twice victimising and
discriminating against a transgender ex-employee
In June 2007 the Brighton Employment Tribunal ordered Brighton and Hove
City Council to pay compensation of £34,765.18 to a former employee, in
a case supported by the Equal Opportunities Commission. The identity of
the teacher is subject to a restricted reporting order by the Tribunal.
The compensation order followed the decision of the Tribunal in November
2006 that Brighton and Hove City Council, and one of its senior
managers, had discriminated against and victimised the former teacher on
grounds of gender reassignment.
In 2003 the teacher registered with a teacher recruitment agency in
order to seek work and sought a reference from her previous manager at
the Council. However she lost the opportunity to obtain work as a result
of her previous manager revealing her change of gender to the
recruitment agency, despite a request that this should not be disclosed.
Her previous manager initially delayed responding to the request for a
reference. When he did respond, he faxed a secret side memo that
disclosed her former name, stated her previous gender, and referred to
her as both 'he or she', 'him' and 'her'. The side memo also revealed to
the agency that she had previously raised proceedings alleging
discrimination and speculated that he had 'no reason to suppose that he
or she is any less effective a teacher as a result of the gender change,
unless publicity around the case has caused social difficulties which
make effective teaching a problem'. He also offered to have further
telephone conversations with agency staff.
This treatment was held by the Tribunal to amount to discrimination and
victimisation of the teacher, for which the Council and her previous
manager were liable.
It was only after the teacher had contacted the agency directly some
months later, because the agency had refused to provide her with any
work, that she discovered the existence of the secret fax. The Council
had failed to reveal its existence when originally asked.
In 2005, in the absence of having received any employment, the teacher
approached her previous manager for a reference again but was refused.
The Tribunal found that both the Council and the manager had further
discriminated against and victimised the teacher by refusing the second
reference request and by refusing to hear her grievance over the
refusal. The Council also failed to adopt existing Criminal Records
Bureau procedures for transgender people, and ignored EOC guidance on
the employment of transgender people.
Although the Council applied for a review of the ET's findings of
discrimination and victimisation, and then lodged an Appeal, both were
unsuccessful.
As well as awarding the teacher compensation of £34,765.18 for her loss
of earnings and injury to feelings, the Tribunal made a recommendation
that the Council provide any prospective employer or employment agency
with a non-discriminatory reference.
P v (1) S and (2) Cornwall County Council (1996 IRLR 347)(ECJ)
P was employed as the general manager of an educational establishment
operated by Cornwall County Council, and was originally recruited as a
man. When P informed her employer that she intended to undergo gender
reassignment, she was dismissed. She brought a sex discrimination
complaint.
The industrial tribunal decided that the true reason for P's dismissal
was her employer's objection to her intention to undergo a gender
reassignment operation. The tribunal did not believe, however, that P
had a remedy under the Sex Discrimination Act (SDA), because the SDA
prohibits only adverse treatment for men and women because they belong
to one sex or the other, not because they are transsexual people, and
the tribunal was satisfied that P would have been dismissed for
undergoing gender reassignment surgery whether she had been a man or a
woman. The tribunal decided to ask the European Court of Justice (ECJ
)for a ruling on whether the Equal Treatment Directive is wider in scope
than the SDA.
In its judgement, the ECJ pointed out that the Equal Treatment Directive
stipulates that there should be 'no discrimination whatsoever on grounds
of sex', and that the right not to be discriminated against on the
ground of sex is one of the fundamental human rights whose observance
the ECJ has a duty to ensure. Accordingly, the scope of the Directive
cannot be confined simply to discrimination based on the fact that a
person is of one or other sex. In view of its purpose and the nature of
the rights, which it seeks to safeguard, the Directive must also apply
to discrimination arising from gender reassignment. Such discrimination
is based, essentially if not exclusively, on the sex of the person
concerned. Where a person is dismissed on the ground that he or she
intends to undergo, or has undergone, gender reassignment, he or she is
treated unfavourably by comparison with persons of the sex to which he
or she was deemed to belong before undergoing gender reassignment.
Dismissal of a transsexual person for a reason related to a gender
reassignment is therefore in breach of the Directive.
When P's case returned to the industrial tribunal, her discrimination
complaint was upheld. The parties agreed compensation of an unstated sum
before the hearing on compensation was concluded.
Chessington World of Adventure v Reed (1997 IRLR 556) (EAT)
Ms Reed was subjected to a prolonged campaign of abuse and harassment
from her colleagues at work when she announced her change of gender
identity from male to female. The Employment Appeal Tribunal (EAT) held
that discrimination arising from a declared intention to undergo gender
reassignment was unlawful under the SDA.
Mills & Crown Prosecution Service v Marshall (1998IRLR 494) (EAT)
In 1993, as a man, Ms Marshall successfully applied to join the Crown
Prosecution Service. However, this job offer was withdrawn when she told
them that she intended to take up the post as a woman. Ms Marshall did
not make a claim to a tribunal about her treatment until 1996 following
the ECJ judgement in the P v S and Cornwall County Council case (above)
as until this time it had been thought that the SDA did not cover
discrimination arising on the ground of being transsexual. The tribunal
considered that it was just and equitable to hear the claim as Ms
Marshall had acted quickly when she became aware that the SDA did cover
discrimination as a transsexual person. The case settled on confidential
terms after the time limit issue had been resolved.
Whittle v The Parochial Church Council of the Parish of St John
the Evangelist (1996 ET)
In 1982, Mr Whittle was dismissed because of being transsexual. He made
a complaint to the tribunal about his dismissal in 1996 when he first
became aware that such discrimination had now been found to be unlawful
sex discrimination. The tribunal, however, decided in this case that it
was not just and equitable to hear the claim out of time as the quality
of evidence on both sides was bound to be substantially affected after
14 years; documents relating to his dismissal had been destroyed and one
of the people involved was believed to have died.
Elmes v Exeter District Council and Others (1996 ET)Employment
Tribunal decision: X v Brighton and Hove City Council [2006/7]
This employment tribunal case decision from 2006/07 was about
discrimination and victimisation of a transgender ex-employee. The
Council was ordered to pay £34,765.18 for twice victimising and
discriminating against a transgender ex-employee.
In June 2007 the Brighton Employment Tribunal ordered Brighton and Hove
City Council to pay compensation of £34,765.18 to a former employee, in
a case supported by the Equal Opportunities Commission. The identity of
the teacher is subject to a restricted reporting order by the Tribunal.
The compensation order followed the decision of the Tribunal in November
2006 that Brighton and Hove City Council, and one of its senior
managers, had discriminated against and victimised the former teacher on
grounds of gender reassignment.
In 2003 the teacher registered with a teacher recruitment agency in
order to seek work and sought a reference from her previous manager at
the Council. However she lost the opportunity to obtain work as a result
of her previous manager revealing her change of gender to the
recruitment agency, despite a request that this should not be disclosed.
Her previous manager initially delayed responding to the request for a
reference. When he did respond, he faxed a secret side memo that
disclosed her former name, stated her previous gender, and referred to
her as both 'he or she', 'him' and 'her'. The side memo also revealed to
the agency that she had previously raised proceedings alleging
discrimination and speculated that he had 'no reason to suppose that he
or she is any less effective a teacher as a result of the gender change,
unless publicity around the case has caused social difficulties which
make effective teaching a problem'. He also offered to have further
telephone conversations with agency staff.
This treatment was held by the Tribunal to amount to discrimination and
victimisation of the teacher, for which the Council and her previous
manager were liable.
It was only after the teacher had contacted the agency directly some
months later, because the agency had refused to provide her with any
work, that she discovered the existence of the secret fax. The Council
had failed to reveal its existence when originally asked.
In 2005, in the absence of having received any employment, the teacher
approached her previous manager for a reference again but was refused.
The Tribunal found that both the Council and the manager had further
discriminated against and victimised the teacher by refusing the second
reference request and by refusing to hear her grievance over the
refusal. The Council also failed to adopt existing Criminal Records
Bureau procedures for transgender people, and ignored EOC guidance on
the employment of transgender people.
Although the Council applied for a review of the ET's findings of
discrimination and victimisation, and then lodged an Appeal, both were
unsuccessful.
As well as awarding the teacher compensation of £34,765.18 for her loss
of earnings and injury to feelings, the Tribunal made a recommendation
that the Council provide any prospective employer or employment agency
with a non-discriminatory reference.
M v West Midlands Police (1996 ET)
M, who had undergone male to female gender reassignment, applied to join
the West Midlands Police Force as a police constable. She passed the
assessment procedures and was informed that she was suitable for
appointment. As the school certificates she would have to supply would
show that she had previously been a man, M decided to inform the West
Midlands Police that she was transsexual. She subsequently received a
rejection letter indicating that because of her gender reassignment,
West Midlands Police considered that it would be inappropriate for her
to carry out some of the duties of the post including searching
suspects.
The Industrial Tribunal found that discrimination on the grounds of
gender reassignment did not come within the SDA/Equal Treatment
Directive (ETD) but even if it did, West Midlands Police had a defence
under s7 of the SDA which deals with genuine occupational qualifications
and under Article 2.2 of the ETD. M's case was unsuccessful.
Since this case was heard, the EAT has decided that the SDA and the ETD
does cover discrimination on the grounds of being transsexual (see P v S
and Cornwall County Council and Chessington World of Adventure v Reed
above). However, since then, the SDA has been amended to make it lawful
to discriminate against transsexual people in recruitment to a job if
the work involves the holder conducting intimate searches pursuant to
statutory powers as contained in, for example, The Police and Criminal
Evidence Act.
Malone v Ministry of Defence (1997 ET)
Ms Malone was dismissed from the Royal Air force in 1993 and believed
that it was because she was transsexual. She made her complaint to the
tribunal in 1994 well outside the 3 months time limit. The tribunal
considered that it was just and equitable to hear the claim as it had
not been known at the time of the dismissal that the SDA/ETD would cover
discrimination arising on the ground of being transsexual. Furthermore,
as the ETD on this issue had not been transposed into domestic
legislation (the SDA), the time limit had not begun to run.
Clare v Fairburn t/a The Old Rectory Nursing Home (1997 ET)
Ms Clare believed that she had not been selected for the job of care
assistant after her interview because she was a transsexual person. The
respondents claimed she had been rejected because of her lack of
qualifications, experience and age and not because of being transsexual.
The tribunal accepted the reasons put forward by the respondents. Ms
Clare's claim was unsuccessful.
A v Chief Constable of the West Yorkshire Police [2004] 2 All ER
145
A underwent gender reassignment from male to female in 1996. In 1997 she
applied to join West Yorkshire Police. She made it clear from the outset
that she was a transsexual person and was told that, in accordance with
the Force's equal opportunities policy, this would not be a problem. She
was invited to continue with her application and she successfully
completed the various selection tests. However, she was then informed
that since her initial application had been received, the issue of
transsexual applicants had been further considered and a decision had
been made that transsexual people would not be appointed to the Force.
The Force argued that as a transsexual person, A would be unable to
conduct intimate and body searches of suspects, and could not therefore
comply with the full range of policing functions. (The Police and
Criminal Evidence Act requires that suspects are searched by a police
officer of the same sex).
The case reached the House of Lords who upheld a previous ruling by the
Court of Appeal that to refuse A's application was contrary to the Sex
Discrimination Act.
Fortnum v Suffolk County Council (ET 2000)
Ms Fortnum (a male to female transsexual person) was employed as an
assistant day care officer who was required to give occasional intimate
personal care to the male and female day centre clients. In May 1999,
the Council told her that she could no longer continue to provide this
intimate personal care to one of the female clients with learning
difficulties whom she dealt with as the client's mother had asked that
her daughter be cared for only by female staff. The client and her
mother were unaware of Ms Fortnum's gender reassignment. The Council had
taken the view that as Ms Fortnum was, at that time pre-operative, she
was not a woman. The tribunal considered that the Council's reliance on
a genuine occupational qualification - that these services could not be
provided effectively by some one undergoing gender reassignment (Section
7B(2)(d)) was problematic as Ms Fortnum had been providing these
services effectively to the client for some time before being told not
to do so. There was no evidence to show that the Council had addressed
the issue of whether or not the service could be provided effectively by
Ms Fortnum. Her claim was successful.
A.D & G v Lancashire Health Authority (Court of Appeal; July
1999)
A, D and G were three separate transsexual women (M to F) and each had
been refused NHS funding of gender reassignment surgery which was
recommended by the gender identity clinic specialists dealing with their
cases. The law permits NHS bodies (nowadays Primary Care Trusts) to make
local decisions about how to prioritise the way they allocate limited
public funds to provide treatment for the full range of medical
conditions in their area. The Lancashire Health Authority (as existed at
the time) had decided on this basis not to allow funding for gender
reassignment surgery. The initial hearing at the High Court first had to
establish a position on whether gender reassignment surgery was the
appropriate treatment for Gender Dysphoria. It was agreed that Gender
Dysphoria is a medical condition and that, as such, it should be treated
on the NHS. On the more contentious issue of how to treat it, Justice
Hidden ruled (on the basis of expert testimony) that gender reassignment
surgery was the appropriate intervention. Justice Hidden also ruled that
a funding policy that amounted, in practice, to a blanket ban was
unlawful and irrational. The Health Authority appealed the latter
judgement, given in December 1998, but the Court of Appeal upheld the
findings in July 1999. Note that subsequent high profile cases
contesting other NHS funding decisions (e.g. Rogers v Swindon NHS
Primary Care Trust), whilst referencing the rationale of the A.D.& G
case, have stressed that it still stands even when they have judged
those subsequent cases differently on the facts.