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Gender identity and discrimination: recent developments

Gender identity and discrimination: recent developments

By Ben Smith   - 30 July 2018

The past few weeks have seen some interesting legal developments relevant to the treatment of transgender people in the workplace. These are not seismic shifts in the law, but they are a useful indication for employers that the direction of travel is towards embracing a more expansive approach to the protection of transgender people from discrimination.

There is likely to be further movement in this area that will directly affect employers, so the opportunity should be taken to get ahead of the wave and take stock of how your business’ practice and policies accommodate transgender employees and what steps need to be taken to minimise the risk of discrimination and other claims (particularly as this is not an area that tends to be very well understood by employers).

EU court finds refusal of state pension to trans woman was sex discrimination

In a recent case the Court of Justice of the EU examined whether the refusal of the state pension to a transgender woman at the usual age for women amounted to sex discrimination. The individual in this case, MB, is a transgender woman who, when she was living as a male, had married a woman. MB later transitioned yet she and her wife wished to remain married for religious reasons. As UK law at the time did not allow for same-sex marriages, MB did not obtain full legal recognition of her change in gender in the form of a Gender Recognition Certificate as doing so would require her to divorce her wife.

The applicable state pension age was 60 for women and 65 for men. As MB was legally considered male, she was refused the state pension at 60 – unless she had her marriage annulled and obtained legal recognition of her gender.

The CJEU found that this requirement amounted to sex discrimination. The Court found that it was open to EU states to determine their own rules for when a person could legally change gender, though for the purposes of EU law someone who was living in their preferred gender and has had a gender reassignment operation is considered to have changed gender.

While narrow on its own facts – and moot now the UK has legalised same-sex marriage – this decision shows the CJEU’s progressive stance on discrimination based on a person’s gender identity. The willingness to protect a trans person from discrimination despite them not having acquired full legal recognition of their change in gender is interesting in pointing the way to a more expansive protection of trans people from discrimination under EU law.

Government consultation

The government has opened a consultation on the process for trans people to legally change their gender. Some form of gender self-identification – which might remove some of the current requirements for recognition, such as medical diagnoses – is likely to come into force. Given Brexit, implementation of this is unlikely to be an immediate priority for the government, so we would not expect changes before Autumn 2019 at the earliest.

These changes won’t have a direct impact on the Equality Act 2010, which prohibits discrimination in employment based on gender reassignment, but they are likely to bring more people within the protection of the existing category of gender reassignment and therefore increase discrimination risk. Therefore, employers should not be complacent and should be considering their discrimination risk and how robust policies can help protect employers and create a more inclusive, productive working environment.

Employers should be conscious of best practice on supporting trans employees. This might include:

  • A robust anti-discrimination and harassment policy;
  • The need to be sensitive to trans employees who change their name or have specific needs in the workplace (such as accessing gendered toilets or shower rooms) – this is something that should be coming from the top of an organisation;
  • Specific inclusivity/LGBT+ policies or at the very least being conscious of LGBT+ issues within existing policies;
  • Policies that accommodate the medical needs of trans people – whether that be to time off for medical appointments or changes to duties following surgery;
  • Some employers go much further, like law firm Herbert Smith Freehills which has announced that it will fund gender confirmation surgery for its trans employees.

This can be a complex area for employers to navigate and it will often be crucial to consult with relevant employees to ensure their concerns are addressed. Acas and Stonewall have some useful guidance for employers.

Contact your usual GQ|Littler contact to discuss any queries.