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Challenges of gender identity

15 May 17

Employment briefing: the issue of gender identity is becoming more prominent, and employers should be aware in particular of the need to foster the right attitudes among all staff

by Amanda Jones

Gender reassignment is a protected characteristic in the Equality Act 2010. Indeed, those who were undergoing gender reassignment have been protected under the law since regulations were introduced following P v S and Cornwall County Council [1996] ECR I-2143 (C-13/94), the first case to provide protection to transsexual people in employment or undergoing vocational training.

Gender reassignment however has a relatively narrow definition. It refers to those undergoing, intending to undergo, or having undergone gender reassignment. That process will involve someone living as a man or woman then transitioning to living as a member of the opposite sex.

The legislation has provided some challenges to employers, although there are not many cases reported. Issues have tended to arise in relation to use of toilet or changing facilities. The potential for harassment of someone who is in the process of transitioning, or has transitioned, is also something which should be firmly in the mind of employers who seek to support a member of staff through this process.

However, society and societal norms develop over time. Over recent years it has been suggested that the protection afforded by this legislation is too narrow. The concept of “gender” has become controversial in itself. It may be remembered that recently Dame Jenni Murray, who has presented BBC Radio 4’s Women’s Hour for many years, was apparently warned by the BBC for comments in an article published in the Sunday Times. Dame Jenni suggested that men who become women through gender reassignment grew up with male privileges and therefore cannot have experiences shared by real women.

Law in transition

This controversy arose in the context of an ongoing discussion about the extent to which gender can be said to be binary or something different. For instance, Facebook now offers 51 different gender options. The UK Government launched an inquiry into protection afforded to transsexuals, and various recommendations were made including the non-gendering of official records. The Gender Identity (Protected Characteristics) Bill was introduced in Parliament but fell due to the general election.

The issue is unlikely to go away any time soon. The Scottish Government has indicated that it would consult on the law in this area by summer 2017 to ensure that Scotland is adopting international best practice.

In the US, while the current President has made comments which might suggest that protection will be rolled back in many areas for those in the LGBTQ community, the position is quite different at state level. Equally, the practice of companies reflects a change in approach. The Corporate Equality Index in the USA assessed Fortune 500 companies for LGBT-inclusive policies. Of the 887 companies analysed, 93% had equal opportunities policies which included gender identity and 73% provided transgender-inclusive healthcare policies. While federal law only provides protection on grounds of sex, the law varies in states and many provide protection on the basis of gender identity.

Gender identity can be defined in varying ways. In Massachusetts, for instance, the definition is: “A person’s gender-related identity, appearance or behavior, whether or not that is different from what is traditionally associated with the person’s physiology or assigned sex at birth.”

Keeping staff onside

A change in law in this area is likely to present a number of challenges to employers. They will need to consider their equal opportunities policies and statements, in particular the harassment provisions; how they record staff details (and equality measures); their healthcare policies (for instance whether insurance will cover any treatment related to gender reassignment), dress codes, their toilet and restroom facilities, and what training will be required for staff to make them aware of the issues. The last is likely to be the most challenging issue. The concept of gender as no longer being binary, in that staff may wish to present as women or men or neither, is likely to cause consternation amongst some who are not familiar with the issues involved. The reaction of pressure groups to comments made by Dame Jenni makes it clear that this is an issue that causes feelings to run high.

Employers may query why changes in society should be of such concern to them. However, if a new protected characteristic is introduced where employers will be liable for the actions of their staff, with the potential for involvement in high profile discrimination claims, employers would be well advised to turn their mind to these issues now. Otherwise, they may have a short period of time in which to make what could be perceived as controversial changes and provide training to staff. 

Amanda Jones, partner, Maclay Murray and Spens LLP

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