PFC response to the DfEE's paper
PFC response to the DfEE’s consultation paper
February 25th, 1998
Preface
Press For Change’s response to the DfEE consultation will not be the first received by the government. In the weeks since the consultation paper was received, soundings have been taken from PFC members and other interested groups; advice has been taken from specialists in employment law; and work of Press for Change’s Employment Working Group has proved invaluable in offering on a pool of relevant cases to illustrate the pitfalls of the government’s proposals.
The final document was scrutinised by a range of people with relevant expertise, and we belive that it is representative of the views of trans people in general and of Press For Change members in particular. It draws heavily on Press For Change’s Five Principles, and on our previously stated principles on employment law :
| 4.08 | The right not to be refused employment, discriminated against in employment, or dismissed from employment on the grounds of wishing to have, or having undergone, gender reassignment. |
| 4.09 | The right to enter a chosen profession on the same basis as non-transsexuals. |
Andrew Smith MP
House of Commons
LONDON SW1A 0AA
25th February 1998
Dear Mr. Smith
CONSULTATION PAPER: LEGISLATION REGARDING DISCRIMINATION ON GROUNDS OF TRANSSEXUALISM IN EMPLOYMENT 16th January 1998
You will remember writing to Dr. Whittle of Press for Change in October 1997, inviting us to take part in a consultation exercise about the implementation of the ECJ ruling in the case of "P v S and Cornwall County Council". We were very pleased to be invited to be involved, and heartened by the tone of the letter, which suggested that the Government is keen to ensure "P" is fully enacted in UK law.
As we told you at the time, we set up an employment working party consisting of seven Press for Change activists, all themselves transsexual and mainly lawyers with expertise in the area. They have in turn been consulting widely within the transsexual and transgender community about possible loopholes in the present system, and points which people would wish the government to highlight in any guidance notes for employers.
In the first week of February we received a bombshell: a "consultation document" from Mrs. Margaret Scott of your department.
The document is absolutely horrifying. It basically proposes TAKING AWAY many of the rights which we won in the European Court of Justice. It sets out to create an interminable list of exceptions when it will be acceptable after all to discriminate. It also shows a startling ignorance of the medical and social factors relating to transsexualism and of the process of so-called gender reassignment.
We asked initially for the paper to be withdrawn. This was apparently not possible, and so despite the very short timescale (six weeks) during which responses are required, we have taken the trouble to consult our members and to compose a very comprehensive commentary, which I attach.
We trust the Government will consider very carefully both this response and those of other organisations and individuals. We would very much like to take this discussion forward constructively, and await your acknowledgement.
Yours sincerely
Alex Whinnom
Vice President, Press for Change
Mrs. Margaret Scott
c/o Ms. F.A. Martin
Department for Education and Employment
Caxton House
6 - 12 Tothill Street
LONDON SW1H 9NF
25th February 1998
Dear Mrs. Scott
RESPONSE TO CONSULTATION PAPER: LEGISLATION REGARDING DISCRIMINATION ON GROUNDS OF TRANSSEXUALISM IN EMPLOYMENT, 16th January 1998
Please find enclosed a response to the paper on behalf of Press for Change. The response has been written by the Vice Presidents after taking into account the views of many of our members and the findings to date of our Employment Working Party. Unfortunately the time you have allowed for responding has not enabled us to canvass the views of every member, but we are encouraging individuals to make their own responses also.
We are dismayed by the paper, but have taken the trouble to compose a very comprehensive commentary, which we trust the Government will indeed consider carefully as you promise. We would very much like to take this discussion forward constructively, and await your acknowledgement.
Yours sincerely
Alex Whinnom
Vice President, Press for Change
RESPONSE TO CONSULTATION PAPER: LEGISLATION REGARDING DISCRIMINATION ON GROUNDS OF TRANSSEXUALISM IN EMPLOYMENT, 16th January 1998
We must begin by stating that we are very disappointed that a document which contains proposals for major changes to legislation which would drastically affect the lives of all trans people in the UK has been drawn up without any input from the trans community itself or, apparently, from other recognised medical and legal experts on the issue. It suggests a certain arrogance which is inconsistent with the stated aim of the paper.
There is actually a wealth of expert medical and legal experience, both in the UK and internationally, upon which the Government could - and should - have drawn, and consultation with the trans community in the UK could easily have been undertaken in advance of the publication of the paper through Press for Change. We have a current membership of around 2,000, and are in contact with a further 2 - 3,000 people through the various self help networks, as well as with trans people internationally.
Indeed on receipt of Andrew Smith’s original letter to Press for Change (in which he proposed drawing up government guidelines to ensure the full implementation of the ECJ judgement into UK law, and which we welcomed) we as you know immediately set up a specialist working party consisting of seven people (four of them professional lawyers) who are experts in employment legislation as it affects transsexual people. They have been consulting widely in the community and are ready to assist the Department in any way they can to ensure that any measures to be taken really do "make specific provision in domestic law for the protection given to transsexual people by the European Equal Treatment Directive". Our concern is, however, that the present proposals if implemented would give trans people even less protection in employment than we had prior to the European Court of Justice judgement in the case of "P". Far from being a proposal to help protect UK trans people from discrimination within society, the paper’s nineteen main paragraphs amount to a comprehensive attempt to "protect" society from trans people.
Why is this considered necessary? And why is it proposed to legislate to prevent other sections of the Sex Discrimination Act from being applied to trans people? Substitute the names of other oppressed groups (e.g. women, gay people, disabled people, black people, Jewish people) in the text and it becomes a masterpiece of prejudice and bigotry. The Government has stated that it aims to embrace the Human Rights Convention and yet seems to be proposing a range of measures which would withdraw the protection of the SDA from trans people in the vast majority of cases where discrimination is likely.
Recent research by Liberty shows that by far the majority of countries in the Council of Europe and the world as a whole, have social policies which recognise trans people as members of their correct sex. Britain is alone in Europe, with just three other countries (Ireland, Albania and Andorra) in setting its trans citizens apart as it does.
Ironically, many of the proposed special provisions would be inconceivable were it not for the unworkable legal gender status imposed upon trans people following reassignment … a case of legislation being proposed to alleviate the discrimination problems created solely by the discriminatory interpretation of other legislation. The plain fact is that if transsexual people were given full legal status in their "new" gender following reassignment, the issues would not arise.
The judgement of the European Court of Justice in the case of "P" quite simply says that the Equal Treatment Directive applies, as it stands, to trans people in the whole of Europe, because discrimination on grounds of transsexualism is held to be discrimination on grounds of an aspect of the individual’s sex. In the UK, the relevant domestic legislation is the Sex Discrimination Act. There is no need for additional legislation. Case law in the UK since "P" has generally interpreted the SDA successfully to protect trans people, and is setting precedents which clarify how the Act should be applied.
The example given at Annex C 4 is the only case which has gone to Industrial Tribunal since "P" in which the complaint of a transsexual applicant has not been upheld. The reasons for this are instructive: the police force felt unable to take on "X", a transsexual woman, lest her incongruent legal status should leave the police force open to accusations that the officer was "really" male and so could not for example perform searches on female suspects, yet could not, for obvious reasons, be permitted to search males either. This impasse would not exist if the transsexual woman concerned were recognised legally as being of female gender. (We believe this judgement is probably itself contrary to the Equal Treatment Directive, as it again constitutes discrimination on grounds of sex: the applicant was treated less favourably than she would have been had her legal sex - as recorded on her birth certificate - been female.)
The intention of the ECJ ruling was to ensure that no aspect of transsexualism or gender reassignment should be used as an excuse for discrimination but far from providing "protection with clear and appropriate exceptions", the proposals contained in the paper actually consist of a comprehensive list of "exclusion" clauses for any employer who wishes to discriminate. "P" herself was originally dismissed in circumstances which would fall within several of the proposed "clear and appropriate exceptions".
If the SDA requires any further interpretation this must be done in such a way as to ensure its protection applies to every individual equally at all times without exception, regardless of the sex they are or appear to be. Guidelines for employers clarifying this point would be a good mechanism.
The process of "gender reassignment" outlined in the paper [paras 5 - 6 and Annex B] is actually a gross over-simplification of reality and only applies to a small minority of individuals. Many trans people live and work for many years before seeking medical intervention, some never do, some cannot undergo treatment for health reasons, and many who do seek it are unsuccessful or wait for even more years before obtaining it. With the current lack of NHS funding in many areas, waiting lists for surgery for transsexual people are measured in years, not months. Many cannot even get accepted on to a waiting list. Further, there is no clear demarcation point when the process of reassignment might be said to be complete. And whilst some trans people "pass", after a time, so well that "he or she would, when observed by a reasonable person, appear to be of the new sexual identity" [para 14], others NEVER do. But though their appearance may remain ambiguous throughout their lives, their "desire to live and be accepted as a member of the opposite sex" is no less firm and valid.
(It may be worth noting in passing that the proposed legislation, as it stands, could well lead to claims against the NHS because a delayed treatment led to the exploitation of a dismissal loophole.)
To suggest that the protection of the SDA should be withdrawn from trans people during and for a period after any process of gender reassignment is to suggest the withdrawal of protection at the time we are most vulnerable to discrimination (as was "P" herself). Medical professionals providing gender reassignment treatment actually strongly recommend that transsexual people should remain in employment throughout the process. Neither is it right to suggest that employment protection should only be provided on the recommendation of a medical practitioner, for the reasons stated above. Would this caveat sound reasonable if it referred to people with any other condition - for example, if legislation were proposed which ensured that people with cancer, or women with Androgen Insensitivity Syndrome (AIS), were not protected from discrimination in employment without showing a doctor’s letter? (Should gender reassignment treatment lead to prolonged absences from work, or to impaired performance - and in most cases it does not - there is adequate provision in current law which allows employers to dismiss or retire any employee who can be shown not to be fit for their job.)
The current state of UK law, post "P", is that ALL trans people are covered by the SDA. The issue of whether or not to disclose one’s status to an employer is thus irrelevant (allowing privacy), as are any attempts to pin down the process or outcome of any gender reassignment treatment.
The suggestions contained in paras 16, 18 and 19 are completely unacceptable and are based on a fundamental misunderstanding. For example there is absolutely no evidence to suggest that "vulnerable" people or children could be adversely affected by contact with trans people or are traumatised by the gender reassignment of someone they know. Rather the opposite is the case, provided it is handled correctly. It is also important to remember that these groups will themselves include trans people; it is of great benefit, for example, to transsexual children, who typically feel they are "the only one in the world", to see positive adult role models. It is surely also desirable that all children and all members of our society should recognise the diversity of people, and see that all are respected and treated equally regardless of irrelevant differences such as skin colour, accent, physical impairments or sex.
The suggestion in para 17 that a male transsexual could be dismissed from a female-only position (and vice versa) appears at first reading to be reasonable, provided options such as redeployment were explored as in any other case where a person becomes unable to undertake specific duties, and provided he IS entitled to be employed in positions reserved for males (and vice versa). However it is by no means clear that this last proviso actually applies at present (see remarks above with regard to "X" and the police). The only fair position whilst this ambiguity with regard to legal sex continues is to apply the law consistently: if a transsexual man is to be considered legally female for the purposes of employment in, for example, the police force or the armed forces, he should also be considered female for the purposes of single sex occupation exemptions.
It is certainly possible that co-workers, members of the public or customers might object to the presence of a transsexual employee, perhaps for example in the situations mentioned in paras 14, 15, 16 and 18. However it is outrageous to suggest that the answer to this is to permit legalised discrimination against the victim of the prejudice. This is made clear if we substitute the example of a black employee. No-one but the most extreme racist would expect a black person to use a specified toilet, to abstain from "intimate physical contact" with members of the public, or be excluded from employment in situations where people are changing their clothes!
Most of the UK public are nowadays well educated about transsexualism, and the experience of individual trans people shows that discrimination or prejudice from people who have been properly informed about the issue is virtually unknown. In a recent case, a transsexual woman who was a regular client at a leisure centre in Torquay was told by the manager that she could not use the ladies changing facilities or toilets and must change in a store-room. The issue was resolved when all the other women using the centre went and changed in the store-room with her; in the face of this act of solidarity, the manager backed down.
An employer’s answer to a staff member who won’t work with a trans person for whatever reason should be the same as to the employee who won’t work with a black or disabled person, or to a misogynist who objects to female colleagues: it should be that such attitudes are unacceptable bigotry, and a potentially dismissable offence. The answer to a customer or member of the public who objects to receiving a service from a trans person (or someone they believe may be a trans person) should be similarly dismissive.
With adequate education, most reasonable people come to see that their fears of trans people - usually unarticulated and irrational - are totally unfounded. Two cases last year demonstrated this very clearly: those of Toni Bradley (the teacher) and Joanna Browne (the GP): in line with the ECJ ruling, their employers correctly retained them in employment whilst they went through the process of gender reassignment. In each case, knowing that the easy option of dismissing or "retiring" the transsexual person could not be taken, a careful public relations exercise including a thorough education in the issue of transsexualism was undertaken with the full co-operation of the individuals concerned: with parents and pupils in Ms. Bradley’s case, and with patients in Dr. Browne’s case. The result was that the overwhelming majority were totally accepting and supportive, and had it not been for obsessive media interest, the process would have been entirely painless for all involved.There are transsexual people working even now in the UK in jobs which fall within the "exceptions" suggested in paras 13, 14, 15, 16 and 18. We know of transsexual people employed in the acting profession, in security, in massage and therapy, in clothing shops, in leisure centres, as counsellors, as nurses, as teachers (of all age groups), as school governors, in the Scout and Guide movements, working with vulnerable people such as those with learning disabilities and mental health problems, or women who have suffered rape or domestic violence - the list is endless. The proposals in this paper would have the effect of withdrawing employment protection from a huge percentage of those transsexual people who are currently in employment, and make it virtually impossible for anyone not in employment to obtain a position unless with the "good will" of individual enlightened employers. Fortunately there are in fact many of these - many larger employers actually have developed procedures for dealing with the situation - and many transsexual people these days are assisted to remain in post throughout the process of reassignment. There is no evidence that this presents any problems.
In conclusion we urge the Government to withdraw these proposals, which if implemented would be unworkable and unfair and would clearly contravene the Equal Treatment Directive and the intention of the ECJ judgement in the case of "P". We would welcome an open and honest discussion on the issues and the real problems of ensuring the equal treatment of transsexual people in employment, and indeed in other aspects of our lives. You have admitted that you are in need of advice - please listen to us.
Christine Burns
Mark Rees
Sarah Rutherford
Mjka Scott
Alex Whinnom
Stephen Whittle
Vice Presidents, Press for Change
25th February, 1998
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Read the Consultation document |
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Read some comments by Stephen Whittle |
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Please DO take the time to send in your comments — either directly, or by using our on-line form |
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Read the Letter from Employment Minister Andrew Smith MP announcing the consultation process (October 1997) |
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The Gender Trust’s submission to the government |
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Who are the government ministers involved? |