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Richard O'Dair writes on 'Some problems with Transgender Rights'

21st June 2016

Some Problems with Transgender Rights

Stonewall is currently focusing very much on the rights of transgender people in the health service (see its recent publication “Unhealthy Attitudes”) and so it is timely to consider some of the problems the health service might face as employer and service provider in seeking to accommodate the needs of transgender staff and service uses.

Suppose that in a maternity unit a number of Muslim women make it clear that they do not wish to be examined by a Beryl a (male to female) transgender nurse who is very open about her transition but who has not yet undergone surgery. Can the hospital assign Beryl to other patients?

Or suppose – a somewhat similar problem – a GP Surgery which has a high incidence of Asian women on the register who would prefer to be seen by a birth woman. The facts are such that the appointment of a women as opposed to a man would be an occupational requirement under Schedule 9 of the Equality Act. But could the partners therefore refuse to appoint Mary a male to female transsexual doctor?

A situation similar to the first of these situations arose in the case of A v Chief Constable of Yorkshire [2005] 1 AC 51. In that case, it was accepted that Police Constables were required to perform intimate body searches. Nevertheless, the House of Lords held that it would be unlawful discrimination to refuse for that reason to employ a transsexual as a constable. This was on the basis that the ECJ had decided n P v Cornwall County Council that the Equal Treatment Directive should be interpreted as requiring equality of treatment for transsexuals. Their Lordships (unlike the Court of Appeal) did not require that the Claimant’s status be disclosed.

Subsequently there came into force the Gender Recognition Act 2004 which entitles transsexuals to a Gender Recognition Certificate if they have suffered dysphoria and have lived in the opposite gender for two years. Such a certificate is conclusive of gender identity subject to any contrary enactment.

Since then the Equality Act 2010 has come into force including Schedule 9 which creates an exception for genuine occupational requirements. It provides.

1(1) A person (A) does not contravene [the Act] by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—
(A) It is an occupational requirement,
(B) The application of the requirement is a proportionate means of achieving a legitimate aim, and
(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).
Importantly the Equality Act does not address its relationship with the Gender Recognition Act.
As stated the Gender Recognition Act does not resolve the issue in either the GP case or the hospital case because its provision for recognition is subject to any contrary enactment. Schedule 9 of the Equality (which applies to partnerships) would seem to offer considerable scope particularly in the case of the GP. This is reinforced by the fact that the partnership might well be able to rely on the patients’

Article 8 (Right to Privacy) and Article 9 (Freedom to Manifest Religion) rights as the basis for a broad interpretation of Schedule 9.

A difficulty in the case of the Hospital case is that Schedule 9 applies does not apply to detriment claims but only, broadly speaking, to decisions to employ. It may be that the Hospital could rely instead on Schedule 3 which makes it lawful to discriminate if doing so is a proportionate means of achieving a legitimate goal in cases where separate services are provided to the different sexes. It could be argued that accommodating patient choice was a proportionate means of protecting their Article 8 or Article 9 rights.

It is fair to say that the case of A V Chief Constable suggest a different answer to both of the questions considered here. The House of Lords interpreted P v Cornwall [1997] IRLR 397 as requiring an absolute prohibition on less favorable treatment of post-operative transsexuals. Lady Hale could not see how any subject of an intimate body search could rationally object to being searched by a post-operative transsexual. She expected the forthcoming Gender Recognition Act to confirm this result. However as has been seen the Equality Act has not provided for such a clear outcome.

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