Employment

The most noteworthy legal event for trans people in 1999 was the passing of The Sex Discrimination (Gender Reassignment) Regulations 1999 which came into force on the 1 May 1999. This was as a result of a monumental case of P v S and Cornwall County Council in which the European Court of Justice ruled that discrimination by reason of gender reassignment is "sex discrimination" under the Equal Treatment Directive. The success in this case meant that the scope of the Sex discrimination Act 1975 is in effect extended to cover discrimination against transpeople.

The regulations specifically provide that "a person (A) discriminates against another person (B) in employment or in vocational training if he treats B less favorably than he treats or would treat other persons, and does so on the ground that B intends to undergo, is undergoing or has undergone gender reassignment".

The regulations also make it clear that there is a duty on employers to treat absence for gender reassignment treatment in the same way as sick leave. Gender reassignment is defined under the regulations as: "a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing Physiological or other characteristics of sex, and includes any part of such process".

The above definition is very wide and does not necessitate that a person undergo any specific medical or surgical process. You do not need to undertake or propose to have any surgery as you will be protected by law by merely being under medical supervision. The Regulations will therefore cover anyone from the moment they announce their intention to change over.

There is also no general obligation for a trans person to disclose their transsexual status to an employer. This was confirmed in an Industrial Tribunal case in November 1998. This case involved X who was employed after an interview as a mental health support worker. On her first day she was dismissed after a colleague told the employer that she was a transsexual. X challenged the dismissal on the basis of Sex Discrimination but the employer countered that the dismissal was valid because X was dishonest in not disclosing her transsexuality prior to employment. The Tribunal dismissed this argument and trans people are under no general obligation to disclose their status to an employer.

Whilst the Regulations are on the whole good news for trans people there are problems with what are known as Genuine Occupational Qualifications (GOQs). A GOQ is where it is perfectly legal to discriminate by choosing a man or a woman to do a specific job. A number of GOQs are already contained in the Sex Discrimination Act 1975 and the new regulations address these existing GOQs for trans people by stating that "no account shall be taken of a case where a man or a woman is undergoing or has undergone gender reassignment". The Regulations do however contain a number of new GOQs that will apply only to trans people.

For instance the Regulations prohibit trans people from employment in the Police on the grounds that they cannot perform intimate physical searches. This clause was included by the government despite the fact that a Industrial Tribunal in the case of A v W Yorkshire Police in March 1999 held that the Police had contravened the Sex discrimination Act 1975 by refusing to offer employment in the office of constable to a transsexual woman.

A second GOQ allows discrimination against a trans person in any job which involves living or working in a private home in circumstances where the householder might reasonably object. This would include such jobs as nannies, mothers helps and other domestic trades where trans people are forced to disclose their status, or risk dismissal if they are discovered later.

A third GOQ allows discrimination where "reasonable objection" could be taken to them sharing accommodation and facilities, on the grounds of preserving decency and privacy, This GOQ only applies to people intending to undergo or in the process of undergoing gender reassignment. However the employer has to be able to show it is not possible or reasonable to make alternative arrangements. It is possible that this provision was enacted with the armed forces in mind.

The government announced in August 1999 that transsexuals will be allowed to stay in the Army under new MOD guidelines. The policy rethink came after the case of Sgt Major Joe Rushton now Joanne Rushton of the Royal Electrical and Mechanical Engineers.
Previously any transsexual in the Army would have been eased out of the ranks. Now under the new guidelines transsexuals will be restricted in rising through the ranks, as women are allowed to serve only in non-combat units which ~sent 70 per cent of Army jobs. The guidelines also state that men who change sex should be able to stay as long as they are Physically capable of performing military duties.

Another GOQ is probably the most contentious and dangerous which applies only to those people intending to undergo or in the process of undergoing Gen~ Reassignment, and concerns trans people involved in the provision of personal services to "vulnerable people". The problem is that there is no definition of vulnerable people in the Regulations but the term could be construed as covering mental health workers, care assistants, nannies or child minders. This GOQ is potentially a serious problem for any trans person in any occupation that may be construed as dealing with vulnerable people.

Despite the drawbacks of some of GOQs in the Regulations the employment rights of trans people have considerably improved since the victory in P v S and Cornwall County Council. Much of the effort in attaining these changes has been spearheaded by Press for Change and it is hoped that they will continue to try to change the governments mind on the anti trans people GOQs that are contained in the Regulations.

Government Inter-departmental Working Group on Transsexuals

On another note on the 14 April 1999 Jack Straw the Home Secretary announced that an Inter-departmental Working Group on Transsexuals has been set up and that it has the following terms of reference: "to consider, with particular reference to birth certificates. the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue". The working group is due to report by April 2000.

GRS Funding

Finally there was good news in the case of A, D and G in December 1998 where the High Court ruled that NW Lancashire Health Authority's decision to refuse treatment for three transsexuals was unlawful and it had acted without consideration of what was "the proper treatment of a recognised illness". The judge further commented that " The health authority's policy, in my view, is flawed in two important respects. Firstly it does not in truth treat transsexualism as an illness but as an attitude or state of mind which does not warrant medical treatment". He stated that the authority's attitude to transsexuals amounted to blanket policy against funding treatment for the condition "because it does not believe in such treatment".

The case is a resounding victory and is of very practical assistance to everyone waiting for funding for gender assignment surgery.