Society is a strange beast. It’s trite to say that each of us is an individual – but it happens to be a universal truth: we each have our own fears, strengths, aspirations and desires. Many of us keep some or all of those facets of ourselves hidden away but there are some in society who are unable to do so. Amongst such people are those who were born, quite literally, in the wrong bodies. A man is born in a woman’s body and vice versa – that is a very basic definition of transsexualism. This fact has been recognised by academics and the medical fraternity for many years. People have, medically speaking, been able to reassign their gender, to correct what nature may have got slightly incorrect, for many years. Legally and socially, however, transsexuals have suffered enormous indignities in doing what they had to do to live a dignified life within their bodies. A quiet revolution then took place in 1999: the law started to recognise the rights of transsexuals.
The Sex Discrimination (Gender Reassignment) Regulations 1999 (“the Regulations”) amended the Sex Discrimination Act 1975 (“the SDA”) by clarifying that transsexual men and women are expressly included in the SDA if they happen to suffer discrimination as a result of undergoing gender reassignment or if they are about to undergo such a procedure. More recently the Gender Recognition Act 2004 (“the 2004 Act”) ensures that transsexual people can be recognised, can marry and can be given a new birth certificate with their new gender officially recognised. The requirement is subject to registration with a gender recognition panel.
There have been a number of high profile cases involving transsexual employees where such people have been subject to discrimination by reason of their gender reassignment. Litigation extends to cases involving transsexual partners of long standing employees being allowed a survivor’s pension if the employee pre-deceased their transsexual partner. European law also now requires that a transsexual person must be recognised in his or her reassigned gender for the purposes of sex discrimination law.
There are thousands of transsexual people in the UK today. Surgery has been used in an increasing number of cases to “reassign” their genders. Such surgical intervention is a painful and lengthy procedure involving not only plastic surgeons but also psychologists. In comparison to other discrimination claims, the number of claims arising under the Regulations or the 2004 Act is small. However, such claims have highlighted that successful employers do need to aim to ensure diversity in the workplace and recognise that good employment practice is vital for an organisation, and extends to all employees regardless of race, sex, disability, sexual orientation or gender reassignment.
It was the case that transsexual people were the subject of derision and abuse. What the law is seeking to achieve is some level of social engineering akin to that achieved by the SDA or the Race Relations Act at the time they came into being – it is a case of re-educating society at large to foster some greater understanding and acceptance of people who have a need, and not merely a want, to reassign their gender to match their identities.
The employment tribunal case of the budget airline FlyBe in November 2005 highlights the criticism that can be levelled at employers for failing to provide transsexual workers with appropriate support in the working environment. Many employers are unaware of how they can deal with the sensitive issue of transsexualism whether it is dealing with those employees in providing support or training or guidance to other employees. The legislation helps and as it starts to take effect and receives the appropriate level of publicity, it should assist in treating transsexual employees as human beings entitled to the same rights and level of dignity as all other employees.
When laws change, society changes. We shall wait to see how the courts and tribunals actually deal with the cases as they arise but in the meantime employers have to consider whether equal opportunities policies, harassment policies and access to training and benefits (amongst other things) currently cover transsexual employees, or whether they will need to be appropriately amended.
Data protection issues will also have to be considered as gender reassignment may lead to a change of name and personnel details as well as gender, and the sensitivities involved in the use of male or female-exclusive facilities (such as toilets) will have to be addressed. Dress codes will also have to be considered as will time off for medical treatment, particularly given that gender reassignment surgery can be a long process. Announcements regarding the gender reassignment will also have to be handled sensitively, and there may need to be a period of education and adjustment for the workforce in consultation with the gender reassigned employee. The aim is a noble one: discrimination of any kind should be left as a footnote in history.