With gender reassignment a protected characteristic, how can employers ensure the rights of the individual are respected when it comes to transgender employees?
Under the Discrimination (Jersey) Law 2013 gender reassignment is a protected characteristic. A transgender person is protected if they are undergoing or have undergone a process of changing their sex by changing physiological or other attributes of sex or even if they have just told someone that they are intending to do this. This means that if someone adopts a new gender role by changing their name, title and pronoun and/or by wearing different clothing, altering their body language, speech and hairstyle, they have reassigned their gender. As part of their gender reassignment some people may choose to take hormones and/or have surgery, but medical intervention is not an essential part of gender reassignment.
- By way of example, for employment purposes, treating a transgender person less favourably than another person in the following areas would amount to discrimination:
- Recruitment and selection for employment or provision of vocational training
- Provision of contractual terms and conditions
- Opportunities for promotion
- Acceptance to a professional or trade organisation
- Acceptance to a professional body
The protections afforded under the Discrimination Law also extend beyond the employment arena to ensure our communities are more inclusive, including for transgender people. This includes ensuring fair access in line with a person’s new gender to education and public premises. It is unlawful for a business to discriminate against a customer because they think the person is transgender, even if they are not. A key requirement, especially in the retail sector, is ensuring fair access to goods, services or facilities. Refusing to provide, or applying terms or conditions to the provision of those goods, services or facilities, because of a person’s gender, is discriminatory.
So what about when it comes to the practicalities, such as the use of male/female washroom facilities by a transgender customer or employee. Consultation with the transgender person is imperative. Subject to their views, established practice would be to allow the transgender person to use the facilities aligned with their new gender, unless there is fair and reasonable justification for not doing so.
Advocate Caroline Dutot is a specialist in employment law and can be contacted by telephone on 01534 481809 or by email on cdutot@ardentchambers.com
