Cross Dressers - Transgendered - Transsexuals - TG - TS - Wives & Partners
The Northern Concord |
What
follows is taken from the United Kingdom’s Department for Education and
Employments:- A
GUIDE TO THE SEX DISCRIMINATION Gender
Reassignment REGULATIONS
1999 And
transcribed for you by the Northern Concord to promote the spread of this
information. What are the Sex Discrimination (Gender
Reassignment) Regulations 1999? The
Sex Discrimination (Gender Reassignment) Regulations 1999 clarify GB law'
relating to gender reassignment. They are a measure to prevent discrimination
against transsexual people on the grounds of sex in pay and treatment in
employment and vocational training. This reflects a ruling by the European Court
of Justice that the dismissal of an employee undergoing gender reassignment is
contrary to the European Equal Treatment Directive. The UK (and all Member
States) is obliged to implement such European law. The effect of the Regulations is to insert into the Sex Discrimination Act 1975 a provision which extends the Act, insofar as it refers to employment and vocational training, to include discrimination on gender reassignment grounds. Thus, for the purposes of employment and vocational training, discrimination on grounds of gender reassignment constitutes discrimination on grounds of sex, and is contrary to the Sex Discrimination Act. Employers who breach the Sex Discrimination Act 1975 in respect of discrimination on gender reassignment grounds will be liable in the same manner they would, for example, for discrimination against a woman on grounds of sex. (
1 England, Scotland and Wales. The Regulations do not apply to
Northern Ireland. ) Detailed information about the
Sex Discrimination Act 1975 can be found in the Department for Education and
Employment's publication: A Guide to the
Sex Discrimination Act 1975.
What
is the purpose of this Guide? This
Guide has no special legal status and is not intended to equate with a Code of
Practice. Its purpose is to provide guidance in relation to the application of
the Regulations; and to suggest some aspects of good practice for employers and
employees on the issues which may be encountered in accommodating an individual
for whom gender reassignment grounds exist in the workplace.
What
is transsexualism and the process of gender reassignment? Transsexualism
affects an estimated 5,000 people in the United Kingdom. Medical treatment to
enable transsexual people to alter their bodies to match their gender identity
is highly successful. The process is known medically as "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 can be
expected to start to do so at around this stage, though they may maintain their
usual gender role at work for rather longer. 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 (e.g. driving licence and
passport) may be formally changed. If there are no extraneous delays, (for
example funding problems or waiting lists), the individual usually proceeds to
corrective surgery after one or two years of hormone therapy. This period of
therapy, during which the individual is expected to live and work in their new
sex, is often referred to as the "real life test". The extent of any surgical
procedures will vary according to the needs of the individual. Most surgical
procedures require less than two weeks absence from work, whilst some are more
likely to require two or three months. It may contravene the Sex Discrimination
Act to dismiss an individual because of impending gender reassignment treatment,
in the same way that it is unlawful to dismiss a woman for pregnancy. For the individual, living with transsexualism
produces similar personal responses to those associated with any other
life‑altering condition, which will naturally lead to some individuals
suffering stress. However once the issues are identified and gender reassignment
commences, such problems are usually resolved. Many
transsexual people wish to keep their transsexual status as private as possible,
whilst others are willing to discuss it confidentially or even 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. What
is the legal position In the United Kingdom a person
is allowed to change his or her personal details and to live as a member of the
opposite sex to that recorded at birth. The majority of transsexual people
also undergo medical treatment, which can include hormone therapy and
corrective surgery. This is only provided following careful assessment by
medical professionals, and may take some time. While it is not at present
possible for a UK citizen who has undergone gender reassignment to alter his or
her Birth Certificate, it is possible to obtain other official documents in the
new identity. These include a passport, driving licence and National Insurance
Number. PART
TWO Application of the Sex Discrimination (Gender Reassignment)
Regulations 1999 The
Sex Discrimination (Gender Reassignment) Regulations 1999 insert into the Sex
Discrimination Act 1975 a provision which extends the Act to cover
discrimination on grounds of gender reassignment in employment and vocational
training. Therefore, any reference to discrimination in employment against men
or women in parts II and III (so far as it applies to vocational training) of
the 1975 Act should be read as applying similarly to discrimination on gender
reassignment grounds. Thus, a claim can be brought against an employer or
individual employee for any unlawful discrimination, including harassment. The
Regulations cover only direct discrimination. How
is “discrimination on grounds of gender reassignment” defined? It is unlawful to discriminate
against a person for the purpose of employment or vocational training on the
ground that that person intends to undergo gender reassignment, or is undergoing
gender reassignment, or has at some time in the past undergone gender
reassignment. This ensures that the various stages of the gender reassignment
process, including the very initial stage, where an individual indicates an
intention to commence gender reassignment, are covered by the Regulations. It is
not necessary for all three circumstances to apply for discrimination to have
taken place. Unfavourable treatment means
treating a person less favourably on gender reassignment grounds than you treat,
or would treat, a person for whom no gender reassignment grounds exist. This
will also apply to recruitment, unless a Genuine Occupational Qualification
exists. Are
there any exceptions from the provisions of the Regulations? Yes, in limited circumstances.
It may not be unlawful to discriminate on grounds of gender reassignment where:
In addition, see the limited
temporary exceptions which apply during the process of gender reassignment only. How
do the exceptions for posts with a Single Sex Genuine Occupational Qualification
work? The new Regulations reflect
the difficulties which can occur in relation to single sex occupations.
Employers should already be aware that under the Sex Discrimination Act it is
unlawful to discriminate on grounds of sex at the point of recruitment, except
for certain jobs where a person's sex is a Genuine Occupational Qualification (GOQ)
for that job (see s7(2), 7(3) and 7(4) of the Sex Discrinimation Act 1975).
There are very few instances in which a job will qualify for a GOQ on the ground
of sex. However, exceptions may arise such as where considerations of privacy
and decency or authenticity are involved. This could include, for example, a job
which requires the job holder to model clothes, or work in the presence of
people who are in a state of undress. When a GOQ exists it also applies to
promotion, transfer or training for that job. A fuller description of the
circumstances where a GOQ can exist are set out in paragraph 14-17 of the Equal
Opportunity Commission's Code of Practice on Sex Discrimination. The GOQ provisions introduced
by the Sex Discrimination (Gender Reassignment) Regulations acknowledge the
unique situation of a person recruited for a specific single sex GOQ post who
commences the gender reassignment process whilst still employed in that post. In
such circumstances, the Regulations allow an employer to consider dismissing an
individual or taking some other form of action. The employer must be able to
show that, firstly, an applicable GOQ exists, and secondly, that any treatment
accorded to the individual is reasonable in all the circumstances of the case.
It is emphasised that an unreasonable action could well lead to a finding of
unlawful discrimination, regardless of an existing GOQ. Action short of
dismissal, such as re-deployment to another part of the organisation where
no such single sex GOQ exists, might be negotiable, especially in larger firms,
and should be the first option considered in such circumstances. Part Three of
this Guide, describes good practice involving discussing options with the
employee at an early stage to try to come to a mutually satisfactory
arrangement. What
about recruitment to a post which has a Single Sex GOC? With respect to recruitment to
a post to which a GOQ applies, employers should be aware that failure to recruit
a person to whom gender reassignment grounds apply and who is living and
presenting in their "new" sex may be considered unreasonable and lead
to claims of discrimination by those aggrieved. The onus will be on the employer
to show that he or she acted reasonably in the circumstances. Do
the Regulations create any supplementary GOCs in the Sex Discrimination Act,
relating specifically to Gender Reassignment grounds? Yes. In addition to the
provisions of s7 of the SDA, the new Regulations introduce supplementary GOCs
relating to gender reassignment grounds. These include provisions which relate
to intimate physical searches pursuant to statutory powers (e.g. Police and
Criminal Evidence Act); and a private home exception where reasonable objection
can be shown by an employer because of the need to preserve privacy and decency. Financial and organisational
concerns may not automatically constitute reasonable grounds for applying a GOQ.
It may be that where a job involves only occasionally undertaking the duties for
which a GOQ applies, employers consider instead re-allocation of tasks. Do
the Regulations apply to Ministers of Religion? The Regulations do not apply
to employment for the purposes of an organised religion where, in order to
comply with the doctrines of that religion, or to avoid offending the
susceptibilities of a significant number of its followers, the employment is
restricted to people who are neither undergoing, nor have undergone, gender
reassignment. Are
there any exceptions which apply only during the process of gender reassignment? Provision is also made in
limited circumstances to excepting posts where individuals have to share
accommodation, and it is not reasonable on privacy or decency grounds for an
individual to do so with either sex while in the process of undergoing gender
reassignment (for example, work on board a ship where private facilities are not
provided). In such a case, an employer must be able to show that it would not be
reasonable to expect him or her to provide alternative accommodation for an
individual undergoing gender reassignment. Where an individual already
working in a post requiring him or her to share accommodation commences gender
reassignment, an employer should attempt, where possible, to take all reasonable
steps short of dismissal in dealing with such circumstances. This could include,
for example, redeployment, or temporary replacement of the individual while
undergoing gender reassignment. It is also not unlawful for an
employer to make special arrangements where a post requires the holder to
provide vulnerable individuals with personal services promoting their welfare,
or similar personal circumstances, and in the reasonable view of the employer,
those services cannot be adequately provided by a person whilst undergoing
gender reassignment. It is envisaged that this exception will apply only in very
rare circumstances and is not a general defence for discrimination on gender
reassignment grounds against individuals who provide such personal services. It
should not be assumed that vulnerable people automatically include children,
patients undergoing medical treatment, elderly people, mentally ill people or
any other group. The onus is on the employer not only to show that a particular
individual, or individuals are vulnerable but also to show that he or she acted
reasonably in concluding that the personal welfare services in question could
not be effectively carried out by a person undergoing gender reassignment.
How
much time do the Regulations allow for medical treatment? The Regulations do not specify
a minimum or maximum time employers should allow a person undergoing medical
and/or surgical treatment related to the process of gender reassignment. However
an employer must not treat any less favourably a person absent while undergoing
gender reassignment than he or she treats, or would treat, a person absent due
to illness or to some other cause. In the latter case the employer should act
reasonably and have regard to all the circumstances. To illustrate, "some
other cause" could include arrangements for an employee to take leave,
either paid or unpaid, to nurse a sick relative, or take a sabbatical. However, as with any major
treatment, 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. Part
Ill suggests good practice for dealing with the absence of an employee
undergoing the gender reassignment process. Do
the Regulations cover protection from harassment? Yes. Harassment of an
individual on the ground of gender reassignment either by his or her employer or
by fellow employees will give rise to unlawful discrimination. Such
discrimination should be dealt with in the same serious manner as harassment is
dealt with for any member of staff who is being discriminated against, for
example, on the basis of their sex or race. Do
the Regulations provide protection from victimisation of individuals? Yes. The Regulations make
unlawful victimisation on gender reassignment grounds, just as it is unlawful to
victimise someone for asserting their rights on grounds of sex. For example, the
new regulations make it unlawful to victimise an individual following a
complaint made in good faith that they have been discriminated against on ground
of gender reassignment. It is equally unlawful to victimise someone who gives
evidence on behalf of a person who has complained. Why
do the Regulations not extend protection to transsexual people in the provision
of goods and other services? The Regulations have been
introduced to reflect the ruling of the European Court of Justice that
discrimination on grounds of gender reassignment is contrary to the EC Equal
Treatment Directive. The Directive applies only to the fields of employment and
vocational training. These Regulations therefore have to be limited to
employment and vocational training and do not impact on the existing provisions
in the Sex Discrimination Act relating to coverage of goods, services and
facilities. PART
THREE Good Practice in Accommodating Individuals for whom Gender
Reassignment Grounds Apply in the Workplace Equal
Opportunities Policies Equal opportunities policies
which refer to discrimination on grounds of sex should also include
discrimination on grounds of gender reassignment. Employers who wish to promote
anti‑discriminatory practice in general may well have policies and
procedures about topics such as sexual orientation, culture and religion, age
and HIV status as well as race, sex and disability: they may consider it
appropriate to add "gender reassignment" to their list. Equal
Opportunities in Recruitment It should not be expected that
job applicants and interviewees will necessarily wish to disclose transsexual
status since many consider it a very private matter. It is not a question that
should ever be asked at interview, just as, for example, a woman should not be
asked about her plans to have children. However, individuals for whom gender
reassignment grounds apply should be aware of the limited exceptions to the
requirement that employers must not discriminate. In circumstances where an
exception might apply, an individual would be expected to disclose his or her
transsexual status. Where no exception exists, questions relating to gender
reassignment are irrelevant. Accommodating
an employee’s transition to the new gender – agreeing a process One of the most important
factors 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:
Good practice example: D, a
popular and respected teacher in a comprehensive
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. Understanding
the likely timescale for treatment It is good practice to discuss
as far as possible in advance what time will be required
to undergo gender reassignment treatment. Employers should try to allow some flexibility so that
employees may undergo this treatment, and are reminded that it may constitute
unlawful discrimination if their treatment of an individual absent while
undergoing gender reassignment treatment is less favourable than their treatment
of those who are or would be absent because of illness or other medical
treatment. Discussing
the point of gender change for employment purposes: and agreeing the process for
informing contacts. There is no general need or
obligation to inform colleagues, clients and the public that an employee is
intending to undergo, is undergoing, or has undergone 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. At the point of change of 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 others. 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.
Amending
Personal Records and References. Where
it is reasonable and practicable, it is good practice for employers to update
their records to ensure that any references reflect current name, title and sex.
In some instances, it may be necessary to retain records relating to an
individual's identity at birth, e.g. for pension or insurance purposes. Access
to any such records showing the change of name and any other details associated
with the individual's transsexual status, (e.g. records of absence for medical
treatment in this connection) should be restricted to staff who require such
information in order to perform their specific duties. These staff could include
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.
Breaches of confidentiality should be treated in the same serious manner as
disclosure of personal details of any other member of staff. 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. If giving a
reference for someone moving to a new job, a reference should be in the name
which will be used in the new job and not "hint at a former name. It may
sometimes be necessary for a transsexual person to disclose a previous identity
in order for references from past employers to be obtained. Once again, strict
confidentiality and respect for dignity should be applied. Insurance
matters 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 a major fact such as gender
reassignment is not disclosed. The employer should inform the employee before
disclosing the information. If an employer is unaware that an employee has
reassigned gender, 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. Pensions Everyone born after April 1955
now receives state pension at 65. But women born before 1950 can claim state
pension at 60, and those born between 1950 and 1955 can claim it at a point
between 60 and 65. Because, for state pension purposes, transsexual people can
only be regarded as the sex recorded at birth, those born prior to April 1955
can only claim state pension at the age appropriate to this sex that is
for transsexual women at age 65 and for transsexual men at 60. It is the
responsibility of the employer to take suitable steps to keep confidential the
reason for the individual's apparently early or late retirement. Flexibility
regarding Dress Codes Many employers operate a Dress
Code system. It is good practice to allow enough flexibility in the dress code
to accommodate the process of transition from one sex to the other. 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. Use
of Single Sex Facilities The 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 may, for example, be the
point at which the individual begins to present permanently in the sex to which
they identify. It is not acceptable to insist for the long term on a transsexual
employee using separate facilities, for example a disabled toilet. Transsexual
employees are entitled to expect support from their employer including any
necessary discussions and explanations with other members of the workforce or
members of the public. Similarly, a transsexual employee should be granted
access to "men only" or "women only" areas according to the
sex in which they permanently present. The
role of the Equal Opportunities Commission The
Equal Opportunities Commission is a principal source of advice and guidance to
the public on the Sex Discrimination Act. That now includes advice and guidance
regarding the provisions of the Act which relate to discrimination on grounds of
gender reassignment. The
EOC's address is: Equal
Opportunities Commission Tel.
0161 833 9244 Fax
0161 835 1657 Department
for Education and Employment - April 1999 ©
Crown Copyright 1999 Reproduced
for this web site by Northern Concord To Contact Northern Concord write to: The
Northern Concord, or E-mail JennyB@northernconcord.org.uk The Northern Concord is a completely voluntary organisation and has no commercial ties whatsoever. 1987 - 2017 Working for the transgender community for the past 29 years
|