Legal Update for Employees

It is currently unlawful to discriminate against a person if they intend to undergo, are undergoing, or have in the past undergone gender reassignment. For example, it would be unlawful to dismiss an employee because they are planning to undergo gender reassignment treatment. This has been the case since the Gender Reassignment Regulations 1999 amended the Sex Discrimination Act 1975.

Under the Gender Recognition Act 2004 ("the Act"), which will come into force on 4 April 2005 individuals who have gender dysphoria, a condition whereby gender identity does not match appearance or anatomy, will be able to apply for a Gender Recognition Certificate, if they meet the conditions set down by the Act. Individuals will not actually have to undergo gender reassignment surgery in order to apply for a certificate.

The certificate will enable them to acquire all the rights and responsibilities of their new gender. These will include:

• a new birth certificate;
• the ability to marry a person of the opposite sex;
• a pension in accordance with their acquired gender from the point of transition (when the individual begins to live with their acquired gender).

Information about an individual's application for a Gender Recognition Certificate will be 'protected information' for the purposes of the Act. If an employer acquires information concerning an employee's application, they will commit a criminal offence, punishable by a fine of up to £5000, if they disclose the information to any other person, unless one of the exceptions listed in the Act applies. The two significant exceptions are that the employee would not be identified by the disclosure, or that they have given their consent.

Employers should also be aware that information about transsexualism and gender reassignment is 'sensitive personal data' for the purposes of the Data Protection Act 1998 and can only be processed for specified reasons or with explicit consent.

Employers must ensure that internal records, such as personnel records and pension arrangements are changed to reflect the individual's change of gender.

Guidance on Employing Transsexuals

Employers must be able to deal with transsexual employees (or job applicants) in accordance with their new gender recognition rights and without subjecting them to unlawful discrimination.

Transsexuals usually live and work for some period in their new gender role using hormone therapy, before embarking on any corrective surgery. Employers should discuss what arrangements may need to be made during the transition period and afterwards. Details may include:

• the expected time scale for surgery or other medical treatment such as hormone therapy;
• whether any time off will be required;
• who the employee wishes to inform, for example, their line manager or colleagues;
• whether the employee has an expected timescale for changing their name and legal gender under the new Act;
• the use of single sex facilities;
• agreeing how any dress code will be adhered to;
  

Employers should be extremely careful not to breach the privacy of transsexual employees. Information about the reassignment process should be kept confidential and usually only disclosed with explicit consent.

Summary

• Make sure that your Equal Opportunities Policy refers to transsexuals.
• If the organisation has a policy on gender identity, managers should be made aware of it.

The Equal Opportunities Commission highlights that one of the most important factors in successfully managing an employee’s transition from one sex to the other is to discuss with them in advance how they would prefer to handle it and to follow the agreed plan. This may include when and how to tell colleagues and clients to what changes will be needed for records and systems, access to those records and when the changes will come into effect.

For a copy of the Women and Equality Unit's Gender Reassignment Guide for Employers, please click here.

For more information about equality issues visit the Equal Opportunities Commission website at www.eoc.org.uk

For a copy of the 2004 Act, please click here.

For a copy of the Gender Recognition Panel's Guide to the new Act, please click here.

Back to Employment On Line Update 7 - 11 February 2005.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2005. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

The information you access via the links on this update is subject to the terms and conditions of the website provider accessible via their home page and we recommend that you read such terms.

Reproduced by kind permission of TLT Solicitors

All the information in this information sheet, including the web versions remains copyrighted by TLT Solicitors, with all world wide rights reserved.

This information sheet was edited for Transsexual UK by Krystyna Haywood, 23rd July 2006.

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