Effective equality measures start with good communications
When it comes to equality, toilet facilities are important. Whenever we use them at work or in a public space, we are making a statement about our gender identity. For transgender employees, using the segregated facility appropriate to their acquired gender can be fundamental to feeling comfortable and accepted at work.
Gender reassignment is a ‘protected characteristic’ under the Equality Act 2010. It is unlawful to directly discriminate against employees by treating them less favourably than others because of gender reassignment or to discriminate indirectly by imposing a provision, criterion or practice that disadvantages transgender employees and which cannot be justified objectively. These provisions also extend to businesses supplying goods and services to transgender members of the public.
In a recent tribunal case, Bisson v Condor Ferries, a transgender passenger succeeded in claiming direct discrimination against a cross-channel ferry company which had advised her to use the disabled toilet when she asked which facilities she should use. Signs with the words ‘Ladies’ and ‘Gents’ which the company was using to indicate its toilets were also held to indirectly discriminate against transgender customers. The ferry company admitted to a “non-intentional and non-malicious” act of discrimination, and the tribunal ordered it to use symbols instead of words on its toilet signs and to update its equality and diversity policy and employee assistance programme.
This case does not change the law in the UK. It is a ‘first instance’ Channel Islands tribunal decision heard in Jersey, which is self-governing and which operates its own local anti-discrimination laws. However, it may mark out the direction of travel for future tribunals to follow on the mainland. It reinforces the view that it will not generally be acceptable to ask transgender employees to use separate facilities, such as a disabled toilet, even if they offer or agree to do this in the short term (perhaps during a sensitive transitional phase). Requiring them to use separate facilities on a long-term basis may be discriminatory.
The claimant’s preference in this case for symbols instead of words to denote male and female facilities is in line with the idea that words are stronger markers of identity, and carry with them certain social assumptions. However, legally, the tribunal’s finding of indirect discrimination is difficult to fathom. Although the company changed its signage, its facilities remained separate and transgender customers were still faced with a binary choice. It will be interesting to see if the notion that the use of symbols alleviates any disadvantage stands up to future scrutiny.
In recognition of the difficulties gender-segregated facilities can cause, many organisations are opting instead for single-occupancy gender-neutral toilets (perhaps marked with a simple WC sign or both male and female symbols) effectively removing this difficult barrier for transgender employees.
However, before employers call in the builders, it is important to remember that, as always, effective communication is the most important factor. Engaging transgender employees, listening to their views and empowering them to make day- to-day choices in line with their broader gender identity is key to avoiding discrimination. New signage is simply window dressing without this kind of focused support.
Recent government guidance on the recruitment and retention of transgender employees provides helpful insight. It suggests that transgender employees should be free to select the facilities appropriate to the gender in which they present. For example, when transgender employees start to live in their acquired gender role on a full-time basis, they should be afforded the right to use the facilities appropriate to the acquired gender role.
Employers may be concerned about the potential discomfort this approach may cause other employees. However, a transgender employee is entitled to expect support. Any objection or inappropriate comments by work colleagues to transgender employees using the facilities of their chosen gender should be tackled promptly and firmly.
Stuart Jones is head of employment, pensions and immigration at Weightmans LLP
For more employment law articles, visit HR-inform
