Transsexualism
Recent Developments in Equality and Diversity Legislation
Gender identity and gender dysphoria are complex and sensitive issues. Definitions are personal, and terms are often interchangeable. There is now extensive legislation and guidance to help Higher Education Institutions support staff who are transsexual - that is - a person intends to fully transition from one gender to another. Society often thinks that trans issues are similar to those of sexual orientation. Although there are some common concerns for members of the lesbian, gay, bisexual and transgender [LGBT] community, there are very specific concerns of the transsexual community.
- The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the Sex Discrimination Act (1975) to cover people from the very start of their gender change process against [direct] discrimination on grounds of past, current or future gender reassignment in employment and vocational training (including all higher education students) unless a "Genuine Occupational Qualification" exists. E.g. a job may involve the holder having intimate contact with others (in a caring role fro example) or conducting intimate searches in accordance with statutory powers such as the Police and Criminal Evidence Act. In such cases the gender of the post-holder is relevant, but these cases will be rare in Higher Education except perhaps for areas where students and staff also have a role in Social Work or the NHS.
- The Gender Recognition Act 2004 provided clear and unequivocal protection for those people who have taken decisive steps to live fully and permanently in their acquired gender on the grounds of gender reassignment has always been illegal under the Sex Discrimination Act (1975), but this Act provided legal recognition from transsexual people. The process of gender re-assignment can take several years to complete. There are different legislative protections at each stage of the process. For example: any reference to discrimination in employment against men or women in parts II and III of the Sex Discrimination Act (1975) also applies to individuals who have gender dysphoria. A claim, therefore, can be brought against an employer or individual person fro any unlawful discrimination, including harassment.
- The Gender Recognition Act (2004) also allows transsexual people who are able to satisfy the evidence requirements to apply to Gender Recognition Panel, (new body consisting of judicially trained lawyers and doctors), to seek full legal recognition. This includes the possibility of obtaining a new birth certificate which makes no reference to the gender transition. There is a register of those who have changed gender, but it will not be open to public scrutiny.
- Transsexual people will be explicitly covered by part of the Gender Equality Duty which was introduced in the Equality Bill 2006. This gender duty will be implemented from April 2007:
- The first element of the duty, requiring public authorities to have due regard to the need to eliminate unlawful sex discrimination will cover transsexual people in employment and vocational training
- The second element of the gender duty, dealing with the promotion of equal opportunities between women and men does not included a specific obligation to promote equality of opportunity between transsexual people generally. However, as men or women, will benefit from the general obligation to promote equality of opportunity between the sexes.
- Legal protection for transsexual people will be further extended when the Government implements its commitment to bring in legislation to prevent discrimination against them in the provision of goods and services (due by 21 December 2007). The Discrimination Law Review will also be looking more broadly at the protection from discrimination fro transsexual people.
- Although no case has yet been brought under the Disability Discrimination Act (1995) a person who has gender dysphoria could potentially be protected under this legislation. A person may have diagnosed gender dysphoria for over a year before receiving any treatment. Although there is no legal precedent, it would be best practice for the institution to make reasonable adjustments for that person in this position. This can include adjusting working hours if necessary and allowing the person to be absent during normal working hours fro rehabilitation, assessment or treatment.
It is therefore good practice to ensure that transsexual people are treated as being of the gender they identify with, rather than their original legal sex. It is unacceptable to treat a person as belonging to neither one sex nor the other for employment purposes, either for a period of time or for life.
