Legal Protection for Transsexuals under the Sex Discrimination Act
[UNITED KINGDOM] - The Sex Discrimination Act 1975 (SDA) makes it unlawful to discriminate on the ground of sex in employment, education and the provision of housing, goods, facilities and services. The Sex Discrimination (Gender Reassignment) Regulations 1999 have extended the SDA to make it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training. The Regulations do not apply to discrimination in education or in the provision of housing, goods, facilities and services.
In employment and vocational training, the SDA protects individuals who are discriminated against because they:
* Intend to undergo gender reassignment
* Are currently undergoing gender reassignment
* Have already undergone gender reassignment
Anyone who is treated less favourably by an employer or vocational training body on any of these grounds compared with someone for whom no gender reassignment grounds exist will have a claim under the SDA.
Individuals have the right not to be treated less favourably compared to others because they have acted in good faith to assert their rights under the SDA. You will have a victimisation claim if your employer treats you less favourably than another employee because you have complained about discrimination on gender reassignment grounds; for example if your employer dismisses you or does not promote you because of your complaint.
Who is covered by the SDA?
The SDA covers a broad range of workers, including contract workers, and also:
* covers people who are applying for jobs or vocational training
* applies regardless of service in employment and regardless of the number of hours worked
* allows you to take a case to an employment tribunal. If your case is successful, you will be awarded compensation for any financial loss you have suffered; an award for injury to feelings can also be made.
Examples of discrimination in employment
Employers must not discriminate on gender reassignment grounds:
* at the recruitment stage - this covers the arrangements made for filling a vacancy, and in deciding who should have the job
* during employment - this covers equal treatment in promotion, training, transfer, and access *to employment related benefits, including pay, and entitles you to a working environment free from harassment on the grounds of gender reassignment
* when ending your employment - this covers dismissal and selection for redundancy
Discrimination in vocational training
There must be no unlawful discrimination against transsexuals who apply for vocational training provided by employers or training organisations, including the Training and Enterprise Councils and their suppliers (in Scotland, the Local Enterprise Companies). There must be no unlawful discrimination against you by such bodies in terminating your training. This means equal access to training on equal terms - and an equal chance to complete it.
Exceptions to the SDA
In certain limited circumstances it is lawful to discriminate in recruitment, training, promotion and transfer in a job for which the sex of the worker is a genuine occupational qualification (GOQ). The SDA allows an employer to restrict applications for a vacancy to women (or men) if the essential nature of the job, or particular duties attached to the job, calls for a woman (or a man).
GOQ's can only be claimed in relation to:
* Physiology (excluding physical strength and stamina) - for example, a female model for women's clothes
* Privacy and decency - for example, a male care assistant whose job involves helping men dress or use the toilet
* Certain work in private homes - for example, a live-in carer
* Single sex accommodation - for example, working on board a submarine
* Single sex establishments - can only be claimed when the job holder has to live in the premises provided, which are normally occupied by persons of one sex and there is no separate sleeping accommodation for persons of the opposite sex
* Personal welfare or educational services - for example, a female counsellor in a rape crisis centre
* Jobs outside the UK in a country whose laws or customs are such that the job can only effectively be done by a man
* The employment of married couples - for example, residential posts of female warden and male caretaker.
* An employer cannot claim that a GOQ applies if there are enough other members of staff of the appropriate sex to cover the duties in question. For example, it would be unlawful for an employer to restrict a vacancy in a clothes shop to women on the grounds that part of the duties involved assisting in the changing room, if there were enough women sales assistants already employed to cover that aspect of the job.
* If someone who has been recruited to a single sex GOQ post commences gender reassignment, the amended SDA allows the employer to consider dismissing that individual, but only as a last resort after all other avenues, such as transfer or redeployment, have been explored.
* The amended SDA also includes the following GOQs which apply only in cases of discrimination on grounds of gender reassignment:
* The job involves the holder conducting intimate searches pursuant to statutory powers, for example The Police and Criminal Evidence Act
* The job involves the holder working in a private home and the employer because of the intimate contact in those circumstances can show reasonable objection.
* There are also some temporary exceptions which apply only during the actual process of gender reassignment:
* The job involves the postholder sharing 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). Where an individual already working in such a post commences gender reassignment, the employer should either provide alternative accommodation, or, if this is not possible, take other steps such as redeployment or temporary replacement until gender reassignment has been completed. If there are no steps, which can be taken, the employer may dismiss the individual, but only as a last resort.
* The job requires the postholder 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 while undergoing gender reassignment. An employee in such a post who commences the gender reassignment process should be transferred where possible to other duties.
Discrimination in education, and in the provision of housing, goods, facilities and services
The Regulations that amended the SDA were introduced to ensure that the SDA complies with the Equal Treatment Directive, which outlaws discrimination in employment and vocational training. The Regulations have not been extended to cover discrimination on gender reassignment grounds in education, or the provision of housing, goods, facilities and services. Although the Regulations do not apply, it is not clear how a court would view a case brought by a transsexual person under any of these provisions of the SDA in light of the decisions already made by courts under the employment provisions. Cases taken under these sections of the SDA are heard in the county or sheriff court. If you have been discriminated against in any of these areas, you can contact the EOC for further information. There is a six month time limit for bringing claims to the county and sheriff courts.