Transgender discrimination continues to make the news with a ferry operator recently agreeing to remove the words 'ladies' and 'gentlemen' from its toilet doors and replace them with symbols.
In January 2016 we reported on the outcome of the House of Commons Women and Equalities Committee transgender equality review which confirmed that transgender people continue to suffer prejudice in and out of the workplace.
Employees, customers and service users are protected against unlawful discrimination on the grounds of gender reassignment under the Equality Act 2010. Gender reassignment covers a person who is proposing to undergo, is undergoing or has undergone a process to reassign their sex.
Erin Bisson recently brought claims of discrimination against the ferry operator, Condor Limited (the 'Company'), in the Jersey Employment and Discrimination Tribunal. Ms Bisson, who is a transgender woman, complained that she felt completely embarrassed after she was told by staff members that she would have to use the disabled toilets rather than the 'ladies' when travelling.
She had in fact taken the initiative and phoned the Company in advance to understand the 'toilet arrangements' because of her gender reassignment, rather than face any possible humiliation on her trip.
The Company later admitted to the Tribunal that there had been a 'non-intentional and non-malicious act of discrimination' towards Ms Bisson. As such, the Tribunal found Ms Bisson's complaints of discrimination to be well-founded, and with the agreement of the Company and Ms Bisson, made a series of recommendations for the Company to implement by way of remedy, including:
- Updating its Equality and Diversity policy and sending a copy to Ms Bisson;
- Updating its Employee Assistance Programme, and training all staff on diversity, to ensure that transgender persons are treated sensitively; and
- Altering the signage on its toilet facilities on all its vessels so that transgender persons can use their facilities without fear of humiliation or embarrassment.
Interestingly in this case, the Company had discussed and agreed with Ms Bisson these recommendations prior to the Tribunal's decision.
Best practice in relation to transgender persons and toilets
While the latest case involved a customer bringing a claim against a service provider, the principles apply equally in the workplace.
Previously, we looked at how to best manage situations involving transitioning men and women in the workplace, and explained an employer's obligations towards their employees throughout the gender transition process.
From an employment perspective, employees should be able to use the toilets and changing facilities appropriate to his or her acquired gender from the point that the individual declares that he or she is living and working as that gender.
All employers should support an employee's right to use appropriate single sex facilities and should not expect the individual to use separate facilities or a disabled toilet.
Employers might consider using neutral signage with symbols rather than words for their toilet facilities.
When managing transgender employees, consultation is vital. A plan of action should be agreed between employer and employee at the outset and, where needed, appropriate support should continue to be provided throughout the transition process. Any use of a separate toilet should not be a permanent arrangement.
Transgender discrimination issues continue to make the news, both employers and service providers should ensure that they foster an open and supportive environment free from discrimination and should be ready to deal with any situation involving a transgender person with understanding and dignity. The key to this is likely to be educating and training the workforce.