The Gender Trust
Registered Charity No. 803607
BM Gentrust
LONDON WC1N 3XX

E-Mail: info@gendertrust.org.uk/
Web Site: http://www.gendertrust.org.uk/

Ms F A Martin
Sex and Race Equality Division
Level 4
Department for Education and Employment
Caxton House
6-12 Tothill Street
London SW1H 9NF

Friday 6th February 1998

Dear Ms Martin

Re: Consultation Paper: Legislation Regarding Discrimination on Grounds of Transsexualism in Employment

Thank you for the courtesy shown by your department by sending us a copy of the above consultation paper.

It is itself, in our opinion, discriminatory. Far from improving the ’lot’ of transsexual people, it actually destroys many of the hard won precedents of recent years.

It is also insulting. ’Transsexual’ is not a noun! It is an adjective. You would not call someone a tonsillectomy would you?

I will comment on each paragraph in turn and give my conclusion at the end but would ask how the Minister would react if the word ’transsexual’ were replaced with the word ’blind’ throughout this document!

Yours sincerely

Tracy Dean (Miss)
Chairperson

Patrons: Prof. John Money, Prof. Richard Green, Prof. Louis Gooren, Prof. Steven Hirsch, Dr. Don Montgomery. Chairperson: Tracy Dean

Introduction

1. The Government deplores unfair discrimination, and intends to make specific provision in domestic law for the protection given to transsexuals by the European Equal Treatment Directive. The Directive was found to give this protection by the 1996 European Court of Justice decision in the case of P. v S. and Cornwall CC. Details of the decision are at Annex A. The Government will proceed by Regulations made under the European Communities Act 1972, which will effect an amendment to the Sex Discrimination Act 1975.

Transsexual people do not want specific provisions in domestic law for their protection! Surely, if they were legally recognised in their true gender then there would be no need for this legislation. In other countries where legislation has been enacted on behalf of transsexual people it has been to enable full recognition of their new status before the law. Thus women are women and men are men and inappropriate legislation such as this is therefore unnecessary. Would it not be more fruitful for the Government to come into line with the rest of the world in this regard?

2. Transsexualism is a subject where relatively few people have experience and where the Government believes it will benefit from advice. This paper invites organisations and individuals who have knowledge of and an interest in transsexualism and gender re-assignment to contribute. The aim is to ensure the Regulations make the appropriate provisions in the fields of recruitment, employment, terms and conditions of work, training, promotion, dismissal and mistreatment such as harassment at work. (For more detail on the stages of gender reassignment, see Annex B)

There is in fact a large body of experience both in this country and abroad. Suggesting that there is not shows a lack of research prior to the preparation of this consultation paper.

Legal Position

3. Like all Member States the United Kingdom is required to implement European Community Directives, as interpreted by case law, in its domestic law. The rights conferred by the Equal Treatment Directive are reflected in GB by those parts of the Sex Discrimination Act 1975 which deal with discrimination in employment. (and in Northern Ireland by the Sex Discrimination Regulations). Since the 1996 European Court of Justice ruling that the Directive includes discrimination on the grounds of gender re-assignment, Industrial Tribunals in the UK have considered a number of cases of alleged discrimination against transsexuals, and have worked to interpret the Sex Discrimination Act to conform with the ruling.

4. Despite UK Courts’ successful adaptation to date of the Sex Discrimination Act to give protection to transsexuals, the re-interpretation places a strain upon the provisions of the Sex Discrimination Act. The Sex Discrimination Act was not written to operate in a way which conforms to the European Court of Justice’s ruling, nor does it have specific and suitable terminology regarding transsexualism. Furthermore, as with all anti-discrimination legislation exceptions to the principle of protection must be considered. The Government wishes to receive views on whether gender re-assignment gives rise to some circumstances in which it might be considered reasonable to allow employers to treat transsexuals differently from other staff, if only temporarily. In essence, therefore, the Government wishes to ensure its legislation is expressly designed to meet the particular case, and gives protection with clear and appropriate exceptions.

Information about the condition

5. Transsexualism is “A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex and a wish to have hormonal treatment and surgery to make one’s body as congruent as possible with the preferred sex. (International Classification of Disorders). The term “gender dysphoria” is often used to convey the medical problem. The procedure of hormonal treatment and surgery which transsexuals seek is usually called gender re-assignment.

Gender dysphoria also covers those who are transgendered i.e. those that wish to live in the role of the gender opposite to their birth sex but without medical intervention. There appears to be no provision for them here.

6. The diagnostic guideline states that the transsexual identity should be persistent - at least two years - and not be a symptom of another condition such as schizophrenia or of any genetic or chromosomal abnormality. Transsexualism is likely to begin in childhood, and is experienced, it is estimated, by some 1 in 30,000 men and 1 in 100,000 women. The condition is to be distinguished from being a transvestite: transvestites wear the clothes of the opposite sex as a temporary experience but are content with their birth sex, and have not been accepted for hormone treatment or re-assignment surgery.

To enact legislation that protects transsexual persons but does not cover those who are transgendered or intersex would be immoral. They have exactly the same problems of discrimination as transsexual people.

7. Under UK law an acquired sexual identity, whether or not involving gender re-assignment surgery, can be given a degree of official recognition (for instance passport issued in the new name and looks, National Insurance number in the new name) so that transsexuals can in practice live under their new identity. But there are certain areas (notably marriage and receipt of pension) where “sex” cannot be changed by treatment or surgery.

8. Annex C describes a) cases which have appeared before Industrial Tribunals b) other examples of problems which have come to the government’s attention. They illustrate issues arising at work for transsexuals and their employers, which include: harassment; confidentiality; dress code. changing rooms or lavatories, offering alternative work; and jobs with vulnerable individuals.

Each of the cases which are quoted in Annex C have been correctly interpreted by the Industrial Tribunals. The only one where the employer’s case was upheld was X -v- The Police. This would not have been the case if the law recognised the change of gender role with a change of the birth certificate and full recognition before the law.

I have also annotated Annex C b).

Issues arising on which views are sought

9. What comparator? The traditional approach in sex discrimination law was formulated on a basis of comparison of treatment as between men and women. If the test for discrimination should be a comparative one, with whom should the comparison be made? The European Court of Justice used as the test for discrimination a comparison “with persons of the sex to which he or she was deemed to belong before undergoing gender re-assignment.” Should the Regulations allow other approaches? For instance, if absences or poor performance due to gender reassignment treatment are the cause of an employer’s action, then it would seem appropriate to require comparison with the employer’s conduct towards someone undergoing lengthy medical treatment for some illness, or who is undergoing a crisis which may impair job performance.

Definitely both.

10. What defines the individual who needs protection? The Equal Treatment Directive forbids discrimination “on grounds of sex, either directly or indirectly”. To ensure the new Regulations carry forward this principle expressly in the Sex Discrimination Act on the grounds of gender re-assignment, a crucial matter is the point at which protection should begin. An individual’s realisation that radical steps must be taken to overcome his or her gender dysphoria may emerge gradually. The Government believes that a specific request to the medical profession to intervene can mark the appropriate point.

If the person is transgendered, then they have no need of medical intervention, therefore there would not be a specific request to a medical practitioner.

11. Views are therefore sought on the proposal that defining the protected group should involve a medical practitioner. The intention is for the new Regulations to protect from discrimination someone who has formally recorded with a relevant medical practitioner or qualified psychiatrist that he or she has a settled intention to achieve a new sexual identity; is in the process of doing so; or has achieved a permanent new sexual identity. This will mean that in cases of dispute, evidence such as a letter from the individual’s medical or psychiatric consultant or GP can confirm whether he or she is a transsexual as described above.

As transsexualism is not a mental illness but a physical anomaly of the brain/body, only the person themselves can diagnose the condition. What if the medical profession will not write the letter? To place this power in the hands of the medical profession would be counter productive. It is bad enough that patients have to prove themselves to the medical profession in order to obtain treatment, in a situation similar to Napoleonic Law (where you are guilty until proven innocent) without having to do the same in order to get protection under the law.

12. Views are also sought about what, if any, disclosure is required to an employer or prospective employer by the individual and by their medical practitioner, in order to be able to rely on the right not to be discriminated against, and to apply the exceptions below. Such disclosure might be information from the individual’s doctor as to the period during which there will be hormonal, psychological or surgical intervention and advice on when this might be said to have formally been completed. (Good practice seems to recommend any such information should be kept confidential to the minimum number of employer’s staff.)

If the process has been completed, then there is no reason why any disclosure should be made. However, if the process is ongoing then, in the interests of fairness, a prospective employer should be informed. However, if they are not to be discriminated against then this is purely a courtesy. We currently have won the point that disclosure is irrelevant to job protection or appointment, so the only reason for doing so would be so that we can be discriminated against under the exceptions below.

At what point does the government consider the process to be complete? For a transgenderist it would be when they are accepted in their new role. For a male to female transsexual person it may be when they have had genital surgery, but what if doctors advise against surgery due to ill health etc. For a female to male transsexual person genital surgery may not be sought because of the poor results that can currently be obtained with phaloplasty. In short, where do you draw the line? Surely better to give the full rights of the SDA right from the start.

Also, hormone therapy is a life long process in order to maintain good health.

13. What Exceptions? The Sex Discrimination Act 1975 and the Race Relations Act 1976 do allow recruiters and employers, in certain narrowly defined circumstances, to reject an individual on grounds of sex or race, for instance where work involves authenticity in dramatic performances; or a post is in a private household. Industrial Tribunals adjudicate on whether an exception has been correctly applied. Applying the principle of protection against discrimination, but allowing certain exceptions, is complex in the case of gender re-assignment: for instance we propose that some exceptions should “lapse” after completion of the process. Views are sought on the exceptions outlined below - and whether these are sufficient and practicable.

The above are reasonable exceptions as long as the exception is on the grounds of sex and not on the grounds of a persons transsexualism. For example, a transsexual actress should not be prevented from playing the part of a woman, but it may be permissible to prevent her from playing a man.

14. The Government proposes that during the process of gender re-assignment:

a) It will be lawful for the employer to specify that the transsexual individual must use particular facilities for that period (e.g. the male or female lavatories or those for disabled people). The individual will have the right to request a change at the point of believing that he or she would, when observed by a reasonable person, appear to be of the new sexual identity.

This is, in part, a reasonable exception. As long as it is the employee that decides on the timing of the change to the correct facilities and that there is either a disabled or other unisex toilet available. If on the other hand there isn’t, it would be unreasonable to expect a transsexual person to use the toilets of their birth sex. Remember, the purpose of this legislation is to enable employees to live though the ’Real Life Test’ and this includes using the correct facilities exclusively.

b) During the period and for one year afterwards, it will be lawful to exclude the individual from jobs which involve intimate physical contact with members of the public or customers (e.g. body searches by the police, Prison Service, Customs and Excise and airport security, or beauty therapy/massage); or close personal interaction with vulnerable people whom the employer reasonably believes would be disturbed, such as those seeking counselling for rape, or people with mental disabilities.

Why? This is pure bigotry! There is no reason for this exception at all. Would this exception be applied to Gay and Lesbian employees? Of course it wouldn’t, so why should it be applied to transsexual persons who are frequently asexual. What are ’mental disabilities’? Do you mean learning difficulties. Or perhaps bigots? People with learning difficulties vary considerably in their abilities and comprehension. In such a case, a transfer to other duties would suffice, and then only if it proved to be a problem. There is the danger that such a person would think that ’you disappear’ if you wear clothes of the opposite gender. This is obviously an impression that should be avoided. Do remember that people with learning difficulties may also be transsexual. What is so special about the one year after the ’period’?

Many transsexual people make excellent counsellors - they have had the life experiences to help others. As there is no legal control on who can call themselves a counsellor, it would be hypocritical to legislate that transsexual persons cannot.

c) During the period and for six months afterwards, it will be lawful to exclude the individual from jobs involving contact with members of the public or customers who are changing e.g. staff in health clubs, clothes shop assistants, home helps, swimming attendants etc.

Why? Again this is pure bigotry! There is no reason for this exception at all. Again, would this exception be applied to Gay and Lesbian employees? Again, why the six months after the ’period’?

15. What is the position after the process of gender re-assignment? The Government intention is to treat the individual as thereafter belonging to the re-assigned sex for employment and training purposes. Once working in the new sexual identity, the individual would if necessary have the protection of the Sex Discrimination Act in employment in that new sexual identity.

They should have the protection of the Sex Discrimination Act in employment in the new gender identity from the point at which they decide to make the transition (with or without medical intervention) until death.

16. However, the Government proposes certain narrow exceptions even after the gender reassignment is complete. It would remain lawful to exclude transsexuals from posts:

a) where the employment has to comply with the doctrines of an organised religion.

As the doctrines of an organised religion cannot be legislated on by Government, this has to be conceded. However, the exception should only apply if the discrimination is on the basis of sex and not a transsexual history. In other words, an organised religion could stop a transsexual woman from becoming a priest if women priests are against their doctrines but should not be allowed to discriminate purely on the grounds that the person was transsexual.

b) where the transsexual seeks to return to the same employer and activity, and to work with the same people (e.g. patients) who were of an unusually vulnerable nature. This exception seeks to recognise that in such exceptional cases, some vulnerable people could be disturbed by the fact of gender re-assignment in someone they know.

Again this depends on the abilities and comprehension of the vulnerable persons. If their mental abilities are that impaired then they may well not realise that it is the same person or that they have changed gender role. This is particularly the case when the employee’s voice has changed noticeably, as people with severe learning difficulties tend to recognise people by their voice.

This exception would prevent a doctor from working in the same surgery, a nurse working in the same hospital. The bottom line is that it means that people are having to give up EVERYTHING in their lives in order to make the transition. They have to give up enough already without legislation adding to their burdens.

Views are sought on these and on the exceptions referred to in paragraph 13.

17. In very rare cases a person who has been through the process of gender re-assignment may find themselves in a job lawfully restricted to the other sex (e.g. in a single-sex hospital). The Sex Discrimination Act’s genuine occupational qualification exceptions expressly cover acts in the course of recruitment, training, transfer and promotion, but not dismissal. The Regulations would make it lawful to dismiss a transsexual from a post restricted to someone of the ’original’ sex.

That is reasonable. One can’t have it both ways. Assuming, that is, that the restriction to a single sex is lawful to begin with and that the person has FULL recognition before the law as being of the opposite sex to that required by the employer.

18. Restrictions on working with children? The Government seeks views on whether there should be a specific exception for jobs which involve working with children. If so should all children be regarded as vulnerable up until 18, as in the Children Act 1989, or is this unnecessarily restrictive? Information would be helpful about the merits of i) a comprehensive approach permitting discrimination against transsexuals for all jobs in schools, and for any work involving substantial contact with children under age 18, during the gender re-assignment process plus one year, as at 14b) or ii) a narrower approach which allowed employers to exclude transsexuals from work bringing them in contact with children regarding changing Facilities (e.g. swimming trips) and sleeping accommodation (e.g. boarding schools) during the gender reassignment process plus six months as at 14c).

There should be no restrictions on working with children. TRANSSEXUAL PERSONS ARE NOT PAEDOPHILES! To make this exception would give the signal that they may be. This would cause more discrimination than it would stop. It is only by children and adolescents coming into contact with transsexual people that they can be educated out of the discrimination that is prevalent in society. Remember also that children may be transsexual - certainly all transsexual adults were children once! There are many transsexual people in the teaching profession. Should they all be sacked?

Equal Opportunities Commission

19. Under the Sex Discrimination Act the Equal Opportunities Commission has the power to keep under review the working of that Act and the Equal Pay Act 1970, and to grant assistance to individuals who complain under the provisions of those Acts. The Government notes that the Equal Opportunities Commission is now responding to enquiries and requests for help by transsexuals and their employers. The Government proposes the Regulations should formalise this position by allowing the Equal Opportunities Commission the power to help an individual take a complaint to an Industrial Tribunal, but not the power to help an individual take a complaint to other courts, under the Sex Discrimination Act’s provisions for goods, Facilities, services and education.

A good idea for this position to be formalised, but why exclude the SDA’s provisions for goods, Facilities, services and education? Are transsexual persons not entitled to such protection and advocacy?

Consultation process

20. Comments are invited on paragraphs 9 to 19 of this document. Please send them to Ms F A Martin of Sex and Race Equality Division, Level 4, Department for Education and Employment, Caxton House, 6-12 Tothill Street, London SW1H 9NF, by 13 March 1998.

DfEE January 1998

Examples of employment issues encountered

• Where someone works in a job with a uniform or similar “dress code”, what special arrangements might be needed e.g. who is responsible for purchase of a new uniform.

  It would be reasonable to expect whoever pays for a uniform normally to pay for the new uniform.

• Protection against harassment by the employer, colleagues or customers about undergoing gender re-assignment or for having undergone it previously. This should be prevented on the same basis as sexual harassment. (The Courts have ruled that employers have duties to prevent harassment of staff and investigate cases which are brought to their attention, of harassment either by colleagues or by customers or others in the course of work.)

  This is in keeping with the SDA.

• What is appropriate if a person is in a job where, although the gender of the person doing the job is irrelevant, the process of gender reassignment (either the transition phase, or the completed fact) could affect vulnerable persons adversely (such as people with learning difficulties or people in counselling).

  Many transsexual person become counsellors and I am aware of a number of others who work with people with learning difficulties. They do not have any problems because of their transsexualism and the exceptions suggested above would actually remove their existing protection under the SDA.

• Considerations due to changes which the individual experiences (e.g. where it is unclear whether an employer’s male or female toilets or changing rooms are appropriate for maintenance of decency) and whether making special and appropriate working arrangements might be necessary for the individual.

  See answer given previously under 14b).

• Confidentiality: It may become known that someone has not always been of their current gender, e.g. from job references. Whether it is right or practical to maintain a transsexual’s confidentiality at work is a matter for consideration depending on the particular circumstances.

  No-one should have access to confidential records of a transsexual person that would have access to other employees’ records. In these days of IT, breaches of the employee’s confidentiality could be a breach of the Data Protection Act.

• Even where it may be lawful to exclude a transsexual from certain work (either temporarily or permanently), it is desirable to protect individuals against dismissal where possible. Good practice seems to indicate that where it is reasonably practicable, the employer should offer the individual alternative work at the same pay. Where that is not possible, the employer should offer alternative work at lower pay; or if that is not possible, unpaid leave until a vacancy arises or the process of gender re-assignment (as defined by the time limits in paragraph 14) is complete. Dismissal should be the last resort.

  These items are indeed good practice. They would have to be included in any exceptions that were part of the legislation. However, there should not be any exceptions in the first place!

• Some employers have been known to suggest that an individual who is going through the gender-reassignment process would be more comfortable if transferred to other duties - e.g. involving less public contact - or if sent on leave then transferred to a new work area with new colleagues. These may be acceptable offers as far as the individual is concerned, but extreme care is needed lest he or she feels forced into an unacceptable detriment.

  These offers must be acceptable to the employee and must not be allowed to be forced on them.

Conclusions

While we accept that the intentions of the Government are to protect transsexuals from discrimination, the exceptions that are proposed appear to have been formulated to protect society from transsexuals. To enact the proposals as they stand would be most detrimental to the rights of transsexuals.

If a change was allowed to the birth certificate, then this legislation would not be necessary. It is only the Government’s intransigence in it’s refusal to acknowledge a person’s gender identity with the full force of the law that creates the anomalies in the SDA.

We would therefore suggest, that the whole basis on which this consultation paper has been drawn up be re-examined. If you start (and apparently you have) from an incorrect premise then you cannot end up with a fair and workable piece of legislation.

There seems to be much confusion within this document with regard to terms. In particular, the confusion in the mind of the writer of this document between ’sex’, ’sexual’ and ’gender’. I therefore offer the following definitions:

Gender

Gender is expressed in terms of masculinity and femininity. It is how people perceive themselves and how they expect others to behave. It is largely culturally determined.

Gender Dysphoria or Gender Identity Disorder

Refers to the dissatisfaction with one’s gender (masculinity or femininity) which is in conflict with one’s physical sex. The term is usually but not always, restricted to those who seek medical and surgical assistance to resolve their difficulty.

Gender Identity

The gender to which one feels they belong.

Gender Role

To interact with society as a member of a specific gender (i.e. as a man or woman) by following arbitrary rules assigned by society that define what clothing, behaviours, thoughts, feelings, relationships, etc. are considered appropriate and inappropriate for members of each sex. Which things are considered masculine, feminine or gender neutral varies according to locations, class, occasion, time in history, and numerous other factors.

Physical Sex

To what sex does the body match, i.e. male, female, hermaphrodite or neuter.

Hermaphroditism and Intersexuality

Where the physiological sex is ambiguous. The situation may, or may not, be accompanied by various degrees of gender dysphoria. The condition may be due to chromosomal complexes, such as Turner’s or Klinefelter’s syndromes, congenital errors of metabolism such as androgen insensitivity syndrome and adrenogenital syndrome. There may also be effects from the hormone balance in the foetus or the placenta.

Transvestite

The clinical name for a Crossdresser. A person who dresses in the clothing of the opposite sex. Generally, these persons do not alter their body.

Transsexual Person

A person who feels a consistent and overwhelming desire to transition and fulfil their lives as members of the opposite gender. Most transsexual persons actively desire and complete Sexual-Reassignment Surgery.

Transgender

A term used to include Transsexual persons, Transvestites, and Crossdressers. It can also represent a person who, like a Transsexual person, transitions - sometimes with the help of hormone therapy and/or cosmetic surgery - to live in the gender role of choice, but has not undergone, and generally does not intend to undergo, SRS.

The Gender Trust
Registered Charity No. 803607
BM Gentrust
LONDON WC1N 3XX

E-Mail: info@gendertrust.org.uk/
Web Site: http://www.gendertrust.org.uk/