Transsexual People in the Workplace: PFC code of practice

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Table of Contents

Published by Press For Change, December 1998 (Printed copies available)
ISBN: 0 9527842 2 X

Authors

This document was produced as part of the work of UK Parliamentary Forum on Transsexualism chaired by Dr Lynne Jones MP.

Its authorship was led by the Press For Change Employment Working Group in collaboration with:

• Jan Doerfel, BA, LL.M, PGDL: Chair of the Press For Change Employment Working Group
• Susan Marshall, MA, F.R.S.A.: Barrister, Fellow of Exeter College, Oxford University
• Dr Zoe-Jane Playdon: Regional Education Advisor, South Thames Department of Postgraduate Medical and Dental Education, University of London
• Alexander K. Whinnom, MA, PGDip Youth and Community Work, PGDip Consultancy in the Voluntary Sector: Policy Officer for Manchester Methodist Housing Association
• Dr Stephen Whittle, BA, LLB, MA, Ph.D: Senior Lecturer in Law, School of Law, The Manchester Metropolitan University

For enquiries, contact:

PFC Employment Working Group
BM Network
London WC1N 3XX
England

Email: letters@pfc.org.uk

Contents

1.	Introduction
2.	The Status of Transsexual People in the United Kingdom
3.	Detailed Guidance
	3.1	Recruitment
		3.1.1	Equal opportunities policies
		3.1.2	References and certificates
		3.1.3	Interviews
		3.1.4	Single sex environments and occupations
		3.1.5	Temporary workers
		3.1.6	Voluntary workers
	3.2	Employment
		3.2.1	Records and confidentiality
		3.2.2	Pensions
		3.2.3	Benefits in kind
		3.2.4	Career development loans
		3.2.5	Harassment
	3.3	Medical treatment during employment
		3.3.1	Time required
		3.3.2	Agreeing a process
		3.3.3	Dress codes
		3.3.4	Informing colleagues, clients and the public
		3.3.5	Single sex environments and occupations
		3.3.6	Use of single sex facilities
		3.3.7	“Women Only” space
		3.3.8	Redeployment and retirement
		3.3.9	Prolonged incapacity for work

Annex A.	Unresolved Issues
	A.1	The police and armed forces
	A.2	Indirect discrimination
	A.3	Religious groups
Annex B.	Further Information and Contacts
Annex C.	Illustrative Tribunal Cases
Annex D.	The Medical Process of Gender Reassignment
Annex E.	The Effects of Transsexualism on the Individual

1. Introduction

1.1 On 30 April 1996 the European Court of Justice ruled in the case of P v S and Cornwall County Council that the dismissal from her job of a transsexual woman, because she proposed to undergo medical treatment for her condition, constituted discrimination under the terms of the European Equal Treatment Directive.  The Court found that it was not legal to discriminate against a person on the grounds of their having undergone, or intending to undergo, gender reassignment. [1]

1.2 Like all Member States of the European Union, the United Kingdom is required to implement the ruling in its domestic law, and UK Industrial Tribunals have on the whole successfully interpreted the Sex Discrimination Act 1975 to protect transsexual people. [see Annex C]

1.3 The purpose of this document is therefore to provide a Code of Practice on issues which may be encountered in the application of this new legislation.  Although throughout the terminology of employment has been used, the Code of Practice should be understood as applying to all areas covered by the provisions of the Sex Discrimination Act.  For example, “Recruitment” applies to recruitment for educational programmes as well as for employment.

2. The status of transsexual people in the United Kingdom

2.1 In the United Kingdom a person is allowed to change their name and personal details and to live as a member of the sex opposite to that recorded at birth.  The majority of transsexual people also undergo medical treatment, which can include hormone therapy and reconstructive surgery.  This is only provided following careful assessment by medical professionals, and may take some time. [See Annex D]

2.2 The current position in the United Kingdom is that a person remains throughout their life legally of the sex recorded at birth.  For transsexual people this means that their legal status cannot be amended to reflect their current identity, despite medical treatment and/or a change of social gender.  Following P v S and Cornwall County Council, this anomaly is for the most part irrelevant for the purposes of employment, but see 3.1.4 and 3.3.5 below.

3. Detailed guidance

Recruitment | Employment | Medical treatment during employment

3.1 Recruitment

References and certificates | Interviews | Single sex environments and occupations | Temporary workers | Voluntary workers

3.1.1 Equal opportunities policies

Equal opportunities policies which refer to discrimination on grounds of sex can now be considered automatically to include discrimination on grounds of transsexualism.  Employers who wish to promote anti-discriminatory practice and who have policies and procedures which cover of areas such as sexual orientation, culture and religion, age and HIV status as well as race, sex and disability may add “gender identity” to their list.  Other policies should be checked to ensure they would adequately cover a transsexual employee, particularly those dealing with confidentiality, harassment, allocation of resources (such as office space and equipment), access to development (such as training, secondment, internal job vacancies and promotions), pensions and insurance.

Good practice example: B, a large employer, already had an identified “Sexual Harassment Officer”.  On becoming aware of the existence of transsexual employees in the workforce, B agreed to extend the remit of the officer to include harassment for reason of transsexualism.

3.1.2 References and certificates

Employers should update their records and ensure that any references reflect current name, title and sex.  Certificates of higher education and professional qualifications should be re-issued to reflect the individual’s new details.  These administrative changes protect the privacy of the transsexual person, and the principle of autonomy of disclosure.

Good practice example: N worked for an engineering company prior to transition and was responsible for co-authorship of a number of technical manuals.  “My former employers have been scrupulous about updating not only their references etc., but about consulting me on which names to use in publications that refer to me from the past.”

3.1.3 Interviews

Employers wishing to promote equal opportunities may state that they welcome applications from transsexual people, just as for any other minority group.  However it should not be expected that applicants and interviewees for employment will necessarily wish to disclose transsexual status - some people consider it a very private matter; also many have experienced prejudice and harassment as a result of disclosure.  It is not a question that should ever be asked at interview.

There is no obligation for a transsexual person to disclose their status as a condition of employment.  If they choose to disclose, this is not in itself a reason for not offering employment, and non-disclosure or subsequent disclosure are not grounds for dismissal.

Should an applicant or interviewee voluntarily disclose, the issue should be dealt with in the same way as any other personal disclosure.

3.1.4 Single sex environments and occupations

In most cases, the gender of an employee is of no relevance to their ability to do their job.  However some specific posts are “exempted” under the Sex Discrimination Act 1975 and are open only to a single sex.  In these cases only, it is necessary to decide which sex someone is for employment purposes.  All transsexual people remain at all times legally of the sex recorded at birth; that is, a woman is treated as a male and a man as a female.  However it would be against the spirit of the Sex Discrimination Act to insist that this anomaly persist for the purposes of employment, since it would give rise to absurdities, for example, a transsexual man would be eligible to work in (for example) a women’s refuge.  Practically, therefore, it is more appropriate to treat transsexual people as being of the sex they identify as, ignoring legal sex.  The point of change of social gender is generally the appropriate marker for status in the “new” gender.  It is unacceptable to treat a person as belonging to neither one sex nor the other for employment purposes, either for a period of time or for life.

3.1.5 Temporary workers

Employment placement agencies and agencies providing casual labour are increasingly important in some sectors of employment, for example IT, secretarial, care workers etc.  and for some workers in these sectors frequent changes of employer are the norm.  As part of their own policies, agencies must decide whether to inform clients that job applicants may include transsexual people.  There is in most cases no legal obligation to disclose such information, and no information about the transsexual status of an individual should be provided without the prior consent of the individual concerned.

Good practice example: L, a transsexual man, had been a professionally trained secretary prior to transition, and sought work via a temping agency.  The agency, whilst aware that he was transsexual, did not consider it necessary to inform employers of his status, and because of his ability and qualifications he was much in demand.  However he lost one position after his status became known, and was concerned that discrimination could have taken place.  The agency was exonerated from any possible involvement in that it was able to reassure him that it had a clear policy that this was a confidential issue.

3.1.6 Voluntary workers

No distinction should be made with regard to the rights of people who work on a voluntary basis.

3.2 Employment

Records and confidentiality | Pensions | Benefits in kind | Career development loans | Harassment

3.2.1 Records and confidentiality

Current personnel records for transsexual people should not refer to a previous name, and records made prior to a change of name should be updated.  Because of the anomalous legal status of transsexual people, it may be necessary for some records (e.g. with regard to pensions and insurance) to retain a reference to legal sex.  Access to records showing the change of name and any other details associated with the individual’s transsexual status, such as records of absence for medical treatment in this connection, should be restricted to senior staff who “need to know” for specific reasons.  “Need to know” refers to those directly involved in the administration of a process, for example the Examining Medical Officer, or the person who authorises payments into a company pension scheme.  It does not refer to colleagues, clients or line managers, and breaches of confidentiality should be treated very seriously, as would any other gossip about a personal medical or social situation.  Transsexual people in employment may choose voluntarily to disclose at a secondary level, for example, answering an equal opportunities questionnaire, or asking for support from a line manager.  Again strict confidentiality should be observed.

3.2.2 Pensions

All people born after April 1955 now retire at 65.  But women born before 1950 retire at 60, and those born between 1950 and 1955 retire sometime between 60 and 65.  Because transsexual people remain legally of the sex recorded at birth, those born prior to April 1955 will retire at the age appropriate to their legal sex, that is, transsexual women retire at 65 and men at 60.  Employers should bear this in mind and use legal sex as the determinant for retirement, early retirement, and the administration of pension schemes.

3.2.3 Benefits in kind

All transsexual people remain at all times legally of the sex recorded at birth; that is, a woman is treated as a male and a man as a female.  This means that employers registering staff for corporate insurance and benefits policies are advised to inform their underwriters if they know of a transsexual employee’s status, since some insurers automatically invalidate a policy if transsexualism is not disclosed.  The employer should gain prior written consent from the employee before disclosing the information.  Where an employer is unaware of an employee’s transsexualism, the obligation to disclose falls upon the employee, who could also be held liable in the event of an incident for which no valid insurance cover existed.

Good practice example: C was taken on as an IT consultant by a private company.  The directors were aware that she was transsexual, but not realising the complexity of her legal status, and without consulting her, took out a range of standard cover for her as a female.  The issue came to light only as the result of a query on her private health insurance.  With C’s permission, a total of six different organisations were informed:

• The brokers themselves
• The company car insurers
• The company’s personal pension plan providers
• The Permanent Health Insurance providers
• The company’s life insurance provider
• The private health provider

Without this disclosure, C’s car insurance, health insurance and pension plan would all have been invalid.

3.2.4 Career development loans

Transsexual people may face an additional financial burden of medical loans if they pay for some or all of their medical and surgical treatment privately.  They may also have experienced lengthy periods of unemployment and have missed the usual opportunities for developing skills which enhance their employment prospects.  Employers are encouraged where possible to make special provisions regarding the administration of career development loans to accommodate this.

Good practice example: J was employed as an administrator, but lacked up to date IT skills because he had been out of the job market for some time owing to his transsexualism.  His employer agreed to an interest free loan to enable him to undertake a correspondence course, in addition to paying for extra in-service training.

3.2.5 Harassment

Employees are entitled to expect support from their employer and protection from harassment by other members of the workforce and members of the public.  In the case of an individual harassing an employee, for example, a member of the public objecting to being served by them, or a colleague making personal remarks to a third party, the issue should be dealt with in the same way as discrimination against any other minority group.  Harassment policies and procedures developed to protect other vulnerable groups should be adapted to include this minority group and the usual penalties for breaching them should apply.  Where an employee is being harassed by the media, they should be protected, and consideration should be given, in consultation with the person concerned, to strategies which minimise personal exposure and the need for self defence.  Employers or employees may address a complaint to the Press Complaints Commission.

Good practice example: R, a university researcher, was “outed” to the media by a colleague.  Coverage in the national press was given to the colleague’s personal view that R should not be admitted as a member of a women’s college because of her ambiguous legal identity (all transsexual people in the UK are currently obliged to live with legal ambiguity, whereby their social identity and most documentation reflects the gender with which they identify, whilst their legal status remains that recorded at birth).  R, who had not made a secret of her status to her employer, but who was not widely known as transsexual, found herself the subject of gossip and controversy.  Her employer protected her from direct media harassment at work, and made its own statement to the effect that the matter was between them and R, and that they were entirely satisfied with her qualifications and abilities to undertake the work for which she was employed.  Colleagues were supportive, and the issue was swiftly ended.

3.3 Medical treatment during employment

Time required | Agreeing a process | Dress codes | Informing colleagues, clients and the public | Single sex environments and occupations | Use of single sex facilities | “Women Only” space | Redeployment and retirement | Prolonged incapacity for work

3.3.1 Time required

Transsexual people undergoing medical and surgical procedures related to gender reassignment may require some time off from work.  Assessment by a qualified professional may take several months or years and appointments may involve the individual travelling long distances, and so are likely to be a day in duration each time.  Following this stage there is typically a period of one or more years before the individual is accepted for reconstructive surgery, and the time required for this will vary greatly, from one week to around twelve weeks, depending on the nature of the surgery undertaken.  Employers should try to allow some flexibility so that employers may undergo this treatment. [See Annex D for further details]

Good practice example: S was employed in a small voluntary sector project.  The management committee was able to allow her to use annual leave to attend appointments with her psychiatrist.  But surgical procedures required several weeks off, which the project could not afford.  However an arrangement was reached whereby S took a combination of sick leave and unpaid leave, enabling a temporary worker to be brought in to cover her absence.  Because this was planned in good time, S was able to manage her financial and personal affairs comfortably, and the project ran smoothly in her absence.

3.3.2 Agreeing a process

The most important factor in the successful management of an employee’s transition from one sex to the other is to discuss with them how they would prefer to handle it, and to follow a process agreed with them.  Issues which may be considered include:

• whether the employee is to stay in their current post or be redeployed
• the expected timescale of the medical and surgical procedures
• the expected point or phase of change of name, personal details and social gender
• what time off will be required for medical treatment
• whether the employee wishes to inform line manager, colleagues and clients themselves, or would prefer this to be done for them
• what amendments will be required to records and systems
• whether a transsexual employee is adequately covered by existing policy on issues such as confidentiality, harassment and insurance 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
• how to handle any harassment, hostile reactions or unwanted media interest

Good practice example: D was a popular and respected teacher in a comprehensive school when he announced his intention to transition to male.  In consultation with D, the head teacher and governors drafted a plan of action to include:

• telling colleagues
• telling parents
• telling pupils
• handling the inevitable media interest

In the event, having been well briefed, parents and pupils were happy to accept D in his new role.

3.3.3 Dress Codes

Employers should allow some flexibility in dress codes to accommodate the process of transition from one sex to the other.  They are supported in this by the Disability Discrimination Act 1995, which prohibits discrimination on grounds of appearance.  Practical details such as who pays for a new uniform (if this is required as a result of a change of social gender) should be dealt with according to the employer’s usual policy on similar issues (for example weight loss or gain), or negotiated with the employee.

Good practice example: M was working as a sales assistant when she began her transition to female.  Her employer discussed the possibility of temporary redeployment out of the public gaze, but M preferred to remain with her team.  The company dress code was therefore relaxed along similar lines as for Muslim women and other groups, giving M flexibility over hair length and style, jewellery and make-up, prior to the point at which she felt comfortable in a skirt rather than trousers and without reference to any specific point of change of social gender.  For a period some customers perceived her as female and others as male, but M felt happy to accept this, and indeed used the perceptions of customers as an indicator of when to begin presenting as unequivocally female.

3.3.4 Informing colleagues, clients and the public

There is no general need or obligation to inform colleagues, clients and the public that an employee is undergoing gender reassignment.  Such information is necessary only where the relationship with someone who knew the person prior to their change of status is to continue.  It is usually good practice for employers to take responsibility for informing those who need to know, although the wishes of the individual should be respected as far as possible.  In some circumstances the transsexual person may wish to be the one to make a personal explanation to some or all of their contacts; in this case the employer will need to know when the disclosure is to take place and at what depth, so that they can agree and provide appropriate support.  Education should take place on two levels: general information about transsexualism, and specific information to enable people to understand the situation of the particular person involved.  Annex B provides sources of information for these purposes.  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 used as an opportunity to brief contacts.  In all cases, the legal obligations of management should be explained, and the unacceptability of harassment made clear.

Good practice example: T worked for a local authority.  She agreed with her employer that she would herself explain to long standing clients about her impending transition, but that they would also be interviewed by a manager and those who expressed unease would be offered a new contact.  Her employer arranged briefing by outside trainers for all her colleagues.

3.3.5 Single sex environments and occupations

See paragraph 3.1.4 above.  Although transsexual people remain at all times legally of the sex recorded at birth; that is, a woman is treated as a male and a man as a female, it is more appropriate for employment purposes to treat transsexual people as being of the sex they identify as, ignoring legal sex.  The point of change of social gender is generally the appropriate marker for status in the “new” gender.  Where a person intending to undergo gender reassignment is already employed in a single sex position or environment prior to a change of social gender it is likely to be most beneficial for the employee, the employer and any customers or clients if redeployment or retirement can be negotiated.  In these circumstances it is good practice to discuss options early on, if possible well before any changes take place, and to come to a mutually satisfactory arrangement.

3.3.6 Use of single sex facilities

Employer and employee should agree the point at which the use of facilities such as changing rooms and toilets should change from one sex to the other.  An appropriate marker for using the facilities of the employee’s “new” sex is likely to be the change of social gender.  It is not acceptable to insist on a transsexual employee using separate facilities, for example a disabled toilet.

3.3.7 “Women Only” space

It is consistent with this Code of Practice that transsexual women should be admitted to any spaces or resources reserved for “Women Only” (rather than transsexual men).  See 3.1.4 and 3.3.6.

Good practice example: A woman’s centre was used by a wide range of women, including some transsexual women, some of whom disclosed their status.  The centre initially responded with a policy of admitting only “women born women”; however following lobbying, education and consultation with all users, the centre agreed a policy of access to “all individuals identifying and living as women full-time in all spheres of life”.

3.3.8 Redeployment and retirement

An employee cannot be obliged to accept redeployment or retirement on the grounds of transsexualism against their wishes.  However in some cases the employee may prefer retirement or redeployment, or may be willing to negotiate if this is the option the employer prefers.  In large companies and organisations, a decision to redeploy may be accommodated relatively easily, especially if the employee is able to move to another site or area.  In smaller ones it may be less easy or even impossible.  An inability to accommodate a preferred option for redeployment cannot be offered as grounds for dismissal or retirement.  Where redeployment takes place it is best timed to co-incide with the change of social gender, so that the employee starts their new post in their new gender role.  Negotiated retirement packages should be equivalent to those offered to other employees who accept early retirement.

3.3.9 Prolonged incapacity for work

There is always a small possibility that complications arising as a result of medical treatment for transsexualism could result in a prolonged incapacity for work.  If incapacity continues beyond the normal expectations for the process undergone, a transsexual employee could be retired on medical grounds in the same way as any other person who becomes unfit for duty.

Annex A: Unresolved issues

The police and armed forces | Indirect discrimination | Religious groups

A.1 The police and armed forces

The police have already raised the point that the legal status of a transsexual employee could potentially be used to undermine their authority as a police officer [see Annex C.5].  It would be consistent with this Code of Practice and with 3.1.4 and 3.3.5 above to treat transsexual people as being, for the purposes of employment, of the sex they identify as, ignoring legal sex.  This would enable employers such as the police and the armed forces to recruit and retain transsexual employees without anxiety.

Good practice example: At least one police force has adopted a pragmatic approach to the gender reassignment of a police officer, pending the resolution of the problem raised above.  The officer concerned was redeployed within the force to a post in which she would not have direct contact with suspects, thus avoiding the possibility that her authority could be undermined.

A.2 Indirect discrimination

Because transsexual people remain legally of the sex recorded at birth, heterosexual transsexual people who would otherwise marry their partners are unable to do so, since legally their partner is of the same sex.  Indirect discrimination may as a result take place in a range of areas, for example: paternity and childcare leave; passing on pension rights and insurance policies to partners or children; general employment related benefits such as private healthcare, membership of clubs and admission to events.  It would be consistent with this Code of Practice for the employee to be treated as being, for the purposes of employment, of the sex they identify as, ignoring legal sex.  This would enable employers to offer equal rights to their partners and families.

Good practice example: A, employed by a housing association, pays into a company pension scheme.  The scheme permits members to nominate any person(s) they wish to benefit from their pension in the event of their premature death, and A is thus able to nominate his partner and children.

A.3 Religious groups

Religious groups where they act as employers are obliged to abide by the provisions of the Sex Discrimination Act 1975, and may not adopt a policy of not recruiting or retaining transsexual employees.  Where a job is open only to members of a single sex, for example, if the ministers of a religion must be male, the religious group must decide whether to accept transsexual men or transsexual women in this role.  It would be consistent with this Code of Practice for a transsexual employee to be treated as being, for the purposes of employment, of the sex they identify as, ignoring legal sex.  However a policy opposite to that recommended for mainstream employment could possibly be justified (as long as the status of transsexual people remains ambiguous) providing the policy is consistently applied.

Annex B: Further information and contacts

Literature | Speakers, trainers and advisers | Other contacts

B.1 Literature

Available by post for £1.50 from Press for Change, BM Network, London WC1N 3XX or free on the Press for Change website at http://www.pfc.org.uk/

• de Cegli D, Dalrymple J, Gooren L, Green R, Money J and Reid R (1996) Transsexualism, the current medical viewpoint ISBN: 0 9527842 0 3

B.2 Speakers, trainers and advisers

Gender Identity Research & Education Society (Registered Charity no: 1068137)
Melverley, The Warren, Ashtead, Surrey KT21 2SP, Tel: 01372-801554
http://www.gires.org.uk/

B.3 Other contacts

General information and assistance in dealing with problems related to the employment of transsexual people:

Press for Change, BM Network, London WC1N 3XX
E-mail: letters@pfc.org.uk
Website: http://www.pfc.org.uk

Support for transsexual women:

Gender Trust (Registered Charity no: 803607)
BM Gentrust, London WC1N 3XX
E-mail: info@gendertrust.org.uk
Website: http://www.gendertrust.org.uk/

Support for transsexual men:

FTM Network
BM Network, London WC1N 3XX
Website: http://www.ftm.org.uk/

Annex C: Illustrative Tribunal Cases

Case 1 | Case 2 | Case 3 | Case 4 | Case 5

C.1

P was registered at birth as male and was employed as the general manager of an educational establishment run by Cornwall County Council.  When P informed her employers of her intention to begin living in the female role as part of a process of gender reassignment, she was dismissed and subsequently raised a sex discrimination action.  The Industrial Tribunal found that P had been dismissed because of her transsexualism (not for redundancy, as the employer claimed) but could give no remedy under the relevant law (the Sex Discrimination Act 1975).  The Tribunal made reference to the European Court of Justice as to whether the Equal Treatment Directive precluded the dismissal, and the ECJ found that it was unfair on grounds of sex.

C.2

R was an engineer on the adventure rides at a funfair, who underwent gender reassignment and continued to work at the funfair.  She was the only woman amongst a dozen engineers.  R’s colleagues ostracised her, insulted and intimidated her and prevented her from working (for example by damaging and stealing her tools, refusing to help her lift heavy loads).  R became ill, and when absent following a suicide attempt she was dismissed.  At Industrial Tribunal, R complained of sexual harassment, which is unlawful under the Sex Discrimination Act 1975, and was awarded compensation against the funfair.  The Employment Appeal Tribunal dismissed an appeal by the employer.

C.3

Z worked for a charity under contract to the Prison Service to give counselling to prisoners to help them stop using drugs.  Whilst planning gender reassignment from male to female, Z began to wear make-up and more feminine clothing.  Prisoners ceased to volunteer for her counselling sessions, and the Prison Governor told the charity not to send Z to the prison any more, as the sessions were not assisting prisoners.  The charity dismissed Z as there was no other work.  At Industrial Tribunal there was dispute over whether the dismissal was because of Z’s transsexualism, or whether (as the Prison Service claimed) there was a fear for her safety amongst violent prisoners.  Z was awarded compensation against the Home Office.

C.4

Y, an RAF technician who had been promoted, was temporarily demoted for a period whilst undergoing gender reassignment and medical treatment for transsexualism.  The lengthy medical processes and absences led to the demotion lasting well over a year, at which point the RAF dismissed Y.  At Industrial Tribunal there was dispute over whether the dismissal was because of Y’s transsexualism, or because it was standard RAF policy to dismiss as unfit for service anyone who had failed to meet the required standards of the higher rank for so long a period.  Y was awarded compensation against the RAF.

C.5

X, a female applicant to the police force, had passed all tests until she had to send in medical references, which revealed that some years earlier she had undergone gender reassignment.  The police recruiters rejected X.  At Industrial Tribunal there was dispute over whether her rejection was because of her transsexualism, or because (as the police claimed) because X would be unable to carry out a full range of duties.  The police specified the duty of searching suspects’ clothes and bodies, for example, a female suspect could object to being searched by a transsexual woman officer on the grounds of her being “really” a man, whilst a male suspect could object on the grounds that she is a woman.  The Tribunal found that X’s rejection was justified and not discriminatory.

Annex D: The Medical Process of Gender Reassignment

Diagnosis of transsexualism is carried out by a specialist in this area and may take a matter of months or a period of years.  Preliminary diagnosis is followed by hormone therapy, and typically after around six months the physical appearance of the individual will begin to change.  If an individual has not yet changed social gender, they will be expected to start to do so at around this stage, though they may maintain their usual gender role at work for rather longer.  An employee can continue to work throughout this period.  At some point over the next few months the individual will start to live full time as a member of their “new” sex, and their name and other records will be formally changed; this is the point of change of social gender, after which they should for employment purposes be treated as belonging to their “new” sex.  If there are no extraneous delays, (for example funding problems or waiting lists), the individual proceeds to reconstructive surgery after one or two years of hormone therapy.

Most transsexual men require only one surgical procedure (mastectomy), whilst women may undergo two or three, including complex genital surgery which is not necessarily a one-stage operation.  Most surgical procedures, with the exception of genital surgery, require less than 2 weeks absence from work, whilst genital surgery is more likely to require 2 or 3 months.  It should be remembered that a transsexual person taking leave for surgery is more likely to return fit for duties relatively swiftly as they begin in good health, unlike an employee undergoing surgery as a result of illness or injury.

Please refer to “Transsexualism, the current medical viewpoint” for a full explanation of transsexualism and the process of “gender reassignment” [See Annex B].

Annex E: The Effects of Transsexualism on the Individual

Transsexualism is not a mental illness, and current medical opinion inclines to the view that gender identity is innate and that transsexualism is most usefully classed as a condition of psychological intersex.  Its physical cause may lie in the differential development of the area of the brain which is essential to biological sex. [2] It affects an estimated 5,000 people in the United Kingdom.

Medical treatment to enable transsexual people to alter their body to match their gender identity is highly successful, with up to a 97% success rate. [3] This process is known medically as “gender reassignment”.

By no means all transsexual people opt for “gender reassignment” at an early age.  The syndrome of transsexualism was not introduced to the general medical community until the early 1950s, and its diagnostic criteria were not published until 1980.  This produces a generational phenomenon, which means some people have not gained access to diagnosis or treatment until relatively late in life, whilst others receive care in childhood and adolescence.  Other personal factors can also affect the decision: a minority of transsexual people are ambivalent about which gender they identify with; some adopt a new social identity and live as members of the sex opposite to that recorded at birth without ever undergoing medical or surgical treatment; some people conform to the social pressure to live as the sex recorded at birth for a large part of their adult lives before considering gender reassignment.

There are no particular morphologies associated with transsexualism: individuals occupy the same range of physical, psychological and personal characteristics as all other men and women.  An attempt to apply stereotypes of appearances and/or behaviour to transsexual people constitutes discrimination.

For the individual, living with transsexualism produces similar personal responses to those associated with any other life altering condition.  Transsexual people prior to changing social gender and/or receiving medical and surgical treatment can live under enormous stress; however once the issues related to gender identity are resolved, mental health related problems are no more common in transsexual people than in the population as a whole.

Many transsexual people wish to keep their transsexual status as private as possible, whilst others are willing to discuss it either confidentially or openly.  It is important that employers do not breach the personal privacy of employees, recognising that the right to disclose or discuss their medical history is the prerogative of the individual.  The principle of autonomy of disclosure is particularly important in ensuring that there is no “betrayal of the true essence of that fundamental and inalienable value which is equality”. [4]

Footnotes

1.	European Court of Justice, P v S & Cornwall County Council (Luxembourg: ECJ, 1996)
2.	JN Zhou, MA Hofman, L Gooren & DF Swaab, “A sex difference in the human brain and its relation to transsexuality”, Nature, 2 November 1995, vol. 378: 6552, pp. 68-70.
3.	Green, R & Fleming, DT (1990) “Transsexual Surgery Follow-Up: Status in the 1990’s, Annual Review of Sex Research ed. J. Bancroft, vol. 1, 1990, pp. 163-174.  Of the 130 F-Ms reported in the study, 97% of the outcomes were considered to be satisfactory; of the 220 M-Fs, 87% of the outcomes were considered to be satisfactory.  See also Pfafflin, F & Junge, A (1992) Geschlechtumwandlung Schattauer, Stuttgart/New York for an extensive survey on outcome.
4.	European Court of Justice, Advocate General’s opinion in the case of ’P v S & Cornwall County Council’ (Luxembourg: ECJ, 1995) p. 13