Employment, The Equality Act and My Transsexual Summer

I have not seen last night’s episode – I’ll watch it tonight – but I understand that there was a scene in My Transsexual Summer that some people have expressed surprise at where Drew is refused employment in a Bridalwear shop on account of being a Transwoman.

Unfortunately, this is not only permitted under the Equality Act (EA2010), it’s one area where Trans folk had rights stripped away as a result of the new legislation. Prior to the EA2010, if someone had a Gender Recognition Certificate (GRC) then they could not – except for a tightly defined set of circumstances involving intimate searches and the like – be discriminated against. This came from the Gender Recognition Act 2004 (GRA2004) amendments to the Sex Discrimination Act 1975. The explanatory notes from the GRA2004 say:

If, for example, the nature of the job requires a woman, it is open to the employer to show that it is reasonable to treat a male to female transsexual person as being unsuitable for that job. The amendments made by Schedule 6 mean that these exceptions will not be available once a person has been recognised in the acquired gender

I don’t know if Drew has a GRC or not, but it’s now irrelevant. The EA2010 removed this rule regarding having a GRC, such that it’s just as legal to discriminate against someone just because you think they might be Trans. (They do not actually have to be Trans, you just have to have “reasonable grounds” to believe they might not be cisgendered)

To add insult to injury, there’s a “passing clause” in the guidelines issued by the Equalities and Human Rights Commission. If you’re “visually and for all practical purposes indistinguishable from a non-transseuxal person of that gender” then it’s much harder, almost impossible, to justify discrimination.

Paradoxically, every other protected characteristic allows you to employ a person with that characteristic – you can insist someone is from a certain ethnic background for example, if you can show that it’s needed to do the job. It’s reversed for Gender Reassignment in that you can insist someone is cisgendered, (Not Transgendered) such as in this case. You can not however insist that someone is Transgendered, no matter how relevant that is to the job as that would be unlawful discrimination.

There’s possibly some room for debate on if being cisgendered might be a “Genuine Occupational Qualification” in this case. It’s arguable that it’s not, but as Sarah put it, “I wouldn’t want to take that one on as a test case”. There’s a strong possibility you’d be having to stuff people into tight-fitting wedding dresses and wield the tape measure, so it’s a step up from just the “changing room problem”.

For more background, I’ve tagged earlier posts that relate to the EA2010. Particularly relevant are “Some Equality Act Clarifications and Good, Bad and Ugly, both from October 2010.

Featured on Liberal Democrat Voice(Edited at 1345: I’m told it was Drew that encountered this, not Donna as I originally stated)

14 comments

  1. I did watch it last and I did wonder about the legal position of the employers in the Bridal shop, who had let’s say interesting responses to the situation. So thanks for pointing this out.

    Now what are we going to do to get this sorted out.

    1. I doubt we’re going to see any Trans-specific bills this parliament, so my current plan is to ensure that any equalities or employment legislation has an appropriate clause in it amending the EA2010. This could be either by talking to the civil servants drafting such legislation or getting MPs/Lords to submit amendments to such legislation once it hits the house.

      (Even if such amendments get defeated, a parliamentary debate should ensure it comes to the attention of said civil servants for the next piece of legislation after that…)

  2. Long conversation required…although i am not at all sure i agree with this analysis. The “problem” is that the protected characteristic in respect of transgender is written uni-directionally, to protect those who are trans.

    This IS different from how other protected characteristics are phrased: but that is not necessarily a bad thing.

    Happy to eat my words if a case fails on the grounds you suggest: however, i’d say it IS down to cases…and so far no evidence that employment tribunals will take the view you believe they would.

    jane
    x

  3. Actually: will drop a line later with a view to chatting some time.

    I don’t have an axe to grind on this – beyond the fact that i am very focussed on the law. Clearly, we’re both fairly switched on to this stuff: yet we’ve read the same text and possibly come up with radically different interpretations.

    Would be worth exploring to see if we can understand one another’s reasoning better.

    Or at least just agree to disagree.

    jane
    x

  4. first its a TV programme it was all set up. Cameras in the shop, scripted. Even if it wasnt regardless of your gender recognition certificate, if you wear a dress but still have male genatalia then you are still a male assisting in and observing the opposite sex i.e. a biological female perhaps in their underwear or perhaps naked. If the female being assisted is under the assumption that due to dress the assistant is biologically female while really having male genetalia is fraud and that person could sue the transgender assistant for sexual or personal assault (& if the groom found out – it could be much worse). So your equality act in real life is worthless

  5. I’m really not very versed in legalese, but I’ve had a look at Schedule 9 of the Equality Act 2010 (page 170, which is the 182nd page of the pdf) which I presume is the bit under discussion.

    To simplify, I’ve written the appropriate bit out, paraphrasing slightly for ease of reading:

    A person (A) is not acting unlawfully in certain circumstances (given in Schedule 9 1(2)) by requiring a particular characteristic (i.e. sex, gender reassigment etc), if A shows that … (c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

    Then, for gender reassignment, it gets modified to:

    A person (A) is not acting unlawfully in certain circumstances (given in Schedule 9 1(2)) by requiring someone not to be a transsexual person, if A shows that … (c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

    You can also require that someone not be married or civil-partnershipped in the same way.

    So it really does seem to be that you can require someone to be of a particular age, to have a particular disability or be of a particular race (etc) if it’s an occupation requirement and the requirement is proportional. All you need to refuse someone is reasonable grounds that they do not have that characteristic.

    However, it’s reversed for gender reassignment and marriage/civil-partnership – you can insist that someone does NOT have that characteristic, and all you need is reasonable grounds that they have had gender reassignment / are married/civil-partnershipped.

  6. I think it was appauling the way that Drew was treated in that interview. The level of predudice was just astonoshing. I didnt realize that there were still so many judgmental people in this world. Appauling !!

  7. I was disgusted when I saw this part of the program. When I was choosing my wedding dress (a decade ago now) it wouldn’t have bothered me whether I was served by a man, woman, or transwoman. What was important to me was choosing THE dress for my special day and being treated with respect. What worried me more when trying on dresses (which were all tried on in a changing room, and adjusted in the room, so no-one would see my underwear anyway, as someone pointed out as an objection to having assistants who are transwomen) was the thought of being judged, eg, my size, budget, etc etc.
    I would rather be served by someone who is interested in serving me and wanting to make my wedding day special, than be served by judgemental bints like those two women.

  8. we’re back to the can’t have PERVERT TS getting close to near naked women argument?
    what do youpeople thinka MtF is going to do with another woman?
    I’ve read of women who had dykes saleswomen pawing them in chnaging rooms but are dykes banned from sale positions?

  9. yeah so your daughter goes into a bridal wear shop strips down to her undies and a chick with a dick is in there with her, measuring her up. If she dosnt mind, fair enough but if the your daughter or future wife is getting touched up by a tranny who hasnt had the op & still has a dick, is that not counted as personal or sexual assault ? No matter what liberal laws or put in place, if the father or groom of the bride batters the tranny because of it, whos the judge going to favour (you may not like the way Ive described this scenario but the trans community get too carried away with thinking their no different to anyone else). Also theres no such thing as “cisgender” using that term will just cause more resentment to the T community !!

    1. Kim: Would he beat any other woman who helped her change? He ought to.

      Some women have XXY chromosomes or may be intersexed, which wouldn’t show in their clothed appearance. Would he have them all do blood work before touching his daughter? Some people identify as neutrois and thus, while they may look and act feminine, they may not be self-identified women. What about transmen who crossdress (female-bodied men dressed as women). What about transmen who aren’t ‘out’ because they don’t want to get fired? Would look like a regular woman, but inside they’re perfectly queer. What about gay women? What about closet gay women? Would he have them all interviewed personally and checked out by psychologists or private investigators to ensure this isn’t so? Perhaps the only way to make sure nobody queer touches his daughter is to put her in a potato sack.

      You seem to think you’re in a bubble where this will never touch you, but you’ve probably interacted with hundreds of people who feel like this and live like this in your lifetime and never had any idea because, uh. They’re just there. Doing their job. Helping you out. Like everyone else. And they’ve done nothing to get this hate. It might make you feel safer to think of the world as ‘normal’ and ‘other’ but the balance is not quite so tipped in the favour of normativity as you seem to think.

      Regarding a man beating a transwoman for being a transwoman who was just doing her job, what you’re describing is a hate crime and you’re saying it like it’s reasonable. Ergo, you’re a narrow-minded piece of shit.

      And cisgendered is a thing like heterosexual is a thing. The majority doesn’t automatically exempt itself from labelling by virtue of being the majority. There’s plenty of ground to cover ‘cis privilege’ in one’s day-to-day life and, as with this brazen instance, it sure pays for it to have a label.

Leave a Reply