Trans Employment Discrimination

1. Trans Employment Discrimination James Morton Scottish Transgender Alliance www.scottishtrans.org

2. P v. S & Cornwall County Council(C-13/94) [decided on 30 April 1996] • The ECJ held that transsexuals can rely on the 76/207/EEC directive providing for the equal treatment for men and women as regards access to employment. • Article 3 of the Directive specifically prohibits discrimination on grounds of sex. The court disregarded the contention that no discrimination could be established as the requirement for an adequate comparator could not be met. • ‘Sex’ is thus to be given a broad meaning that encompasses the gender reassignment process. ‘The scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one sex or the other sex.’ • GR discrimination is based on the sex of the person

3. Who is protected?

4. Current trans evidence • 86% cited employers being fearful of possible customer/client reaction towards a transgender employee as a barrier in employment • 50% had experienced anti-trans harassment or discrimination in their previous or current job • 63% of those complained to manager • 30% said their complaint was handled poorly Government Equalities Office trans survey of 412 UK trans people in 2011. http://tinyurl.com/geotranssurvey

5. Current trans evidence • 35% suspect they were turned down for a job due to being transgender • 26% more than once • 1% within last week, 17% within last year • 37% are currently unemployed • 9% had not provided references because of fears of revealing their gender reassignment history • 7% resigned from job due to anti-trans harassment or discrimination without a new job to go to. STA trans survey of 665 UK trans people in 2012 http://www.scottishtrans.org/Uploads/Resources/employ2012.pdf

6. Marland v P&O Portsmouth14 December 2006; case nos. 3100891/05 and 3101697/05 http://21.enable.com/rubenstein/getfile.asp?k:A0:5F:24:D0:17:89l:D5 Gender Reassignment Discrimination & Constructive Dismissal Trans woman awarded £65,000 (inc. £20,000 for injury to feelings) • Tribunal found she "had to endure from a significant number of her workmates, a constant atmosphere of resentment, intolerance, intimidation, taunting and aggression". • Incidents included highly personal remarks, the making of crude comments about her gender reassignment, and referring to her as "he, she, it, whatever". • Tribunal found respondent carried out inadequate grievance investigation and "increased, quite needlessly, the injury to the claimant's feelings caused by the harassment on board ship".

7. High risk of becoming unemployed • “I was a senior manager at a software company, and the directors could not deal with the thought that I might transition – so we agreed redundancy as opposed to me taking them to tribunal. I got many interviews but only vague explanations as to why I didn't get any subsequent jobs.” • “Due to staff members and management being unable to accept my transition, I was laid off after 17 years by a compromise agreement. I feel I cannot apply for other jobs in same sector as it is not pleasant for trans people.”

8. Example of seeking employment • “Found out from a friend who already worked somewhere I had been turned down for: • that the manager felt "He/She'd be a huge disruption to the rest of the staff. We'd have to make all sorts of changes. I mean, which toilets would he/she use?!" (a direct quote, I'm assured. Also of note is that there are unisex toilets on site). • Manager sounded really keen on me on the phone, loved my experience, and answers to her questions. When I got there she took one look at me and her face fell, she barely asked me any questions and what she did ask was largely "How would you deal with a customer who had a problem with you being... er... You know." • …Due to this kind of reaction at several interviews I've stopped applying for customer facing jobs to avoid this kind of treatment in future.”

9. Access to facilities • “I didn't feel safe enough to use the bathroom at my last job as a result of being trans and people getting angry when I tried to use the bathroom.” Privacy • “I had to leave this employment due to employers giving out personal info [my gender reassignment history] that only human resources should have known about. I was then subjected to abuse by colleagues.”

10. X v Brighton and Hove City Council (2006/2007) • http://www.equalityhumanrights.com/advice-and-guidance/your-rights/transgender/transgender-case-decisions/ • £34,765 awarded for twice victimising and discriminating against a trans ex-employee on grounds of gender reassignment • In response to reference request the respondent disclosed her former name, previous gender, used multiple pronouns and speculated “no reason to suppose that he or she is any less effective a teacher as a result of the gender change, unless publicity around the case has caused social difficulties which make effective teaching a problem”

11. Occupational Requirements Equality Act 2010 • Where there is an occupational requirement to be a particular sex, this can impact on trans people • There is also the potential occupational requirement to NOT be a transsexual person • The application of the occupational requirement needs to be a proportionate means of achieving a legitimate aim