Irish Tribunal Finds For Transgender Employee

A&L Goodbody Solicitors, Dublin, Ireland - Knowledge Team, Know How: In a recently published determination, the Irish Equality Tribunal recognized the inclusion of transgender people under the gender heading of the Employment Equality legislation. The Tribunal also awarded €35,400 in damages after it found that the claimant had been discriminated against on the grounds of gender and disability.

The Irish Emigrant - Transsexual sales manager wins Dublin discrimination case

The Irish Emigrant - Transsexual sales manager wins Dublin discrimination case: "Louise Hannon (50) a sales manager from Arbour Hill, North Dublin, recently became the first transsexual worker to successfully use the Employment Equality Act in a case of discrimination on the grounds of transsexualism."

British Columbia's Transgender Rights Bill Passed

B.C. MP's transgender rights bill passed by House of Commons | Vancouver, Canada | Straight.com: "MP Bill Siksay’s bill to protect transgender people from discrimination was passed by the House of Commons today (February 9).

Members of Parliament voted 143 to 135 to pass Bill C-389 through third reading."

The bill still has to pass the Senate.

Government battle over transgender protections in India

Protections have been put in place for transgender people in India, but there is some confusion as to its implementation. This story discusses a court case regarding the protections, and the implication seems to be that the central government is dragging its feet.

Note that the story uses the term "eunuch," which is commonly used in India to refer to trans people. It does not have a negative connotation there. In the US, however, the term is not generally used, and would likely be considered pejorative.

Transgenders: Centre silent on PIL

UK Employment Discrimination

The UK last week saw a landmark ruling regarding workplace discrimination. The Bishop of Hereford was assessed £47,345 in compensation to John Reaney, a gay man who brought a claim of employment discrimination. Reaney, a 42-year-old from North Wales, took the Hereford Diocesan Board of Finance to an employment tribunal after his appointment to the role of youth worker was blocked on the grounds of his sexuality by the Bishop of Hereford, the Rt Rev Anthony Priddis.

According to the LGBT History Month UK Blog, research shows that, in the UK, as many as 1 in 10 gay men and 1 in 8 lesbians have been harassed at work in the past year because of their sexual orientation. However, it is also noted that the numbers show that very few cases reach the courts.

http://lgbthmuk.blogspot.com/2008/02/social-enterprise-tackles.html

Japanese employee suing over gender identity firing

From the Mainichi Daily News:

February 14, 2008

SHIZUOKA -- A man born as a woman on Wednesday sued a company here seeking compensation, saying it withdrew a job offer because it learned he is suffering from gender identity disorder.

The man has asked the Shizuoka District Court to declare the withdrawal of the job offer from advertising design company Ad Technica illegal and for the firm to pay 1.98 million yen in compensation.


"If people with gender identity disorder openly disclose their condition while applying for jobs, they haven't got a hope in hell of being employed. If the company is allowed to get away with this, it will rob the rights of gender identity disorder sufferers to live," said a lawyer for the plaintiff, a 33-year-old man who has the physical characteristics of a woman.

Click here to read more

The Japanese Gender Identity Disorder (GID) Law was enacted in July 2003, allowing some transgender people in Japan to change their gender status in their family registers. By the end of 2005 about 330 people had done so. The legal situation in Japan is covered in this article and this one.

New Zealand Human Rights Act includes gender identity

The New Zealand Solicitor-General, the government's chief legal advisor, has issued a legal opinion stating that the country's Human Rights Act, which prohibits discrimination based on sex, includes discrimination against transgender people. I find it interesting that the NZ Solicitor General has adopted the same position as a number of federal courts around the U.S. that have interpreted the reference to "sex" discrimination in the Civil Rights Act of 1964 as including transgender employees.

While New Zealand has prohibited discrimination on the basis of sexual orientation since 1993, this point has long been in dispute in New Zealand. Labour MP (Member of Parliament) Georgina Beyer, who is transgender herself, had introduced a bill in Parliament to address the issue. Her Human Rights (Gender Identity) Amendment would have amended the Act to include "gender identity," but she has said she will withdraw the bill since the law has been clarified by the Solicitor-General's opinion.

There have been some allegations in the New Zealand press that she was pressured to withdraw the bill by opponents of the bill in her party, who were afraid of controversy that would harm the party in the polls. MP Beyer, however, said that she did not withdraw the bill because of pressure, and that there was little controversy in the Parliament, where there were more than enough votes to pass the bill. She said that her withdrawal of the bill was "finesse."

Her explanation makes a great deal of sense to me. Trying to get a bill passed that would certainly generate controversy, whether or not one accepts her claim that there are more than enough votes to pass it, when she already has in hand a legal opinion that will be, at the least, very persuasive under New Zealand law, would be putting politics over people.

At the same time, however, I would imagine that the opinion is not set in stone and could be changed if the political waters change. From the little I understand about New Zealand law, the Solicitor General is the government's executive branch advisor on legal matters, a non-political officer who is subject to the authority of the more political Attorney General. The relationship between the Solicitor General and the judiciary is closer than it is in the U.S., so it's unclear to me whether a judge would feel it necessary to follow that opinion. I don't get the impression that the Solicitor General's opinion is binding on the courts, though I would imagine it is most persuasive.

Bottom line: Ms. Beyer's a politician who knows how to work the system to get real results for transgender people, without getting hung up on "rights talk" and insistence on political unreality. It's too bad she's stepping down from her post.

Employer admits discrimination against transgender employee

In news across the ocean, the employer of a British transsexual ferry crew member has admitted sex discrimination, but denies unfair dismissal.

Drusilla Marland claimed that co-workers in the engine room of the P&O ferry Pride of Bilbao made jibes about her sex change such as referring to her as "he" and saying things such as "we are all men here" P&O Ferries' own investigation found that a number of co-workers admitted saying inappropriate things to her. On the other hand, some crew members reported Marland to their bosses because she made them feel uncomfortable by pouting, blowing kisses and acting "camply".

The case is ongoing.

News: Canadian Federal Bill considered

Legislation has been introduced in Canada's House of Commons to include "gender identity and expression" in the country's Human Rights Act. The current federal practice is to include discrimination complaints on the basis of transgender identity as a part of "sex" discrimination. The Northwest Territories already provide explicit protections. Others, like Ontario, Quebec, Manitoba, and British Columbia, have interpreted laws to include protection. A similar bill was introduced last year, but not passed.

News: British lawsuit against Japanese company

A transsexual who moved to Britain because she thought it would be more tolerant than her US midwest home is bringing what is thought to be the biggest discrimination claim to be launched over a sex change.

Jessica Bussert, formerly Josh, is seeking £500,000 from Hitachi Data Systems, who demoted her from her high-level IT job after she had facial and breast surgery. Ms Bussert, who transferred from the American branch of the technology firm two years ago, is also pursuing $3.6m (£1.93m) damages against the company in a parallel claim in the US.

Discrimination claims on the basis of gender identity are rare, but lawyers say the size of the claim by Ms Bussert, who earned £88,000 last year, is almost certainly a record. The case is expected to go to an employment tribunal within three months.

Since a ruling of the European court of justice 10 years ago, it has been unlawful to discriminate against transsexuals in the workplace. The Sex Discrimination (Gender Reassignment) Regulations 1999 make it clear that this covers employees who intend to undergo gender reassignment, are going through the process or have done so in the past. There is no cap on the damages that tribunals can award for discrimination cases.

For Josh Bussert and his wife, Sharon, their former home in Indiana was "a great place to bring up kids". They lived with two of Mr Bussert's three children from his first marriage and two girls the couple adopted from Haiti 12 years ago. But when he decided to change his gender, small-town America did not seem like the right place to be.

"About 45 minutes away from where I lived in Indiana, about three months before I left, a 19-year-old transsexual woman and a friend of hers were brutally murdered and, because that wasn't good enough, their bodies were set on fire. That's the kind of environment that we were worried about," Jessica Bussert says.

Josh Bussert had started working for Hitachi in the US in January 2001. At the end of 2003 he was diagnosed with gender dysphoria, a condition in which an individual's biological sex is at odds with his or her psychological gender. Mr Bussert, who remembers wanting to be a girl from the age of four, was in effect a woman in a man's body.

That month he applied for a transfer to the UK branch of the company, covering Europe, the Middle East and Africa. The Busserts, who are still a couple and say they are closer than ever, decided to move to London, which they saw as a more accepting and tolerant environment.

"I interviewed for a job with an individual that would have been a wonderful supervisor, very liberal, very open-minded. He later told me that I had the job before I even came for an in-person interview," says Jessica Bussert, 41.

In April 2004 the family made the move, renting a house in west London. But the man who had conducted the interview and would have been Bussert's boss moved on soon after.

A few months before beginning the new job Josh had begun the transition that would transform him into Jessica, starting with hormone therapy, electrolysis to remove facial and body hair, and growing longer hair. Outside the workplace he was Jessica, but at work the right moment had not yet arrived to go public.

Relations with his new boss, Steve Larkin, were good at first. In July 2004 during a business trip to Hamburg, which Mr and Mrs Bussert had gone on as a couple, a colleague made a comment about the length of his hair. He replied, apparently joking but testing the water, "Oh, I'm planning on having a sex change."

Most of his co-workers laughed but, as the Busserts now recall, Mr Larkin replied: "Don't do that to me, Josh. I had to work in an office with someone who did that once and it was weird." Mr Bussert passed it off as a joke, and Mr Larkin said: "That's good because it would just be too strange. Don't ever do that to me."

By October 2004 the physical changes were creating pressure to reveal the truth, she says. She broached the subject with Mr Larkin light-heartedly, but "he made it quite clear that he did not want any of 'those people' working for him. I quickly passed it off as a joke but he was becoming suspicious."

Two work assignments followed, in Spain and the Netherlands, where she says Mr Larkin went over her head to make substantial changes to business agreements she had reached, destroying her credibility with the sales team.

She was experiencing substantial stress and decided to tell the human resources director, Janet Musgrave, who initially seemed supportive. But after Ms Bussert returned from having facial feminisation and breast surgery in the US - she is yet to have genital surgery - she was effectively demoted, she says.

Although her salary remained the same, she no longer reported to Mr Larkin but to Nick Lewis, who had been hired as her equal a few months earlier. She says neither Mr Larkin nor Ms Musgrave told her of the demotion: she learned of it during a "totally humiliating" presentation given by Mr Lewis.

Ms Bussert says she was given administrative tasks normally performed by secretaries, and that her representations to senior management were dismissed. Two days after filing her discrimination claim last September, she says she had an employee appraisal with Mr Larkin at which he delivered "the most devastating employee evaluation of my entire professional career". After that she went on sick leave suffering from "workplace stress causing clinical depression, together with anxiety and panic disorder", she says.

The company stopped paying her salary in February, and the Busserts are living on their savings while she looks for another high-level IT job.

A spokeswoman for Hitachi UK said: "This is subject to employment tribunal proceedings and we don't think it's appropriate to comment, other than to say that we deny those allegations and will be defending them to the full extent."

News:"He-she" not biased; Trans MP bathroom issue

Does calling someone a 'he-she' signal job bias?: The U.S. Circuit Court of Appeals for the Sixth Circuit recently heard an appeal from the dismissal of a Title VII employment discrimination case involving a transgender employee. The trial judge said there was not enough evidence of discrimination to bring the case before a jury. The plaintiff had worked at the employer for 17 years without complaint, but after change of management, received 12 reprimands in a year and was fired. The plaintiff brought a witness, a priest working at the department, who testified that the supervisors repeatedly referred to her as a "he-she." The trial judge dismissed the case, ruling that the employer's use of the term "he-she" did not show discrimination. A decision is expected in six months to a year.

Where does a transgender MP go to the bathroom?: An Italian lawmaker suggested in parliament that the transgender MP, Vladimir Luxuria, be required to use a restricted bathroom. Some other Italian legislators have not been particularly friendly either. Alessandra Mussolini, granddaughter of Il Duce, attacked her on state television, saying "better a fascist than a faggot." (Click here for the video) Another group of politicians assaulted her, throwing fennel (in Italian finocchio, a word also meaning "faggot").

News: EU Court rules in favor of transsexual pension rights

The European Union's Court of Justice has ruled that a British law which granted pension rights to transsexuals based on their original gender was illegal. Females are pensioned off at 60, whereas males are pensioned at 65. "The unequal treatment in this case is based on Ms. Richards' inability to have the new gender which she acquired following surgery recognised," the court said. "That unequal treatment must be regarded as discrimination."

On another British front, the Cabinet Minister for Women, the Rt. Hon. Tessa Jowell MP, recently released a guidance document for businesses regarding the Gender Recognition Act, discussed in a previous post. The implementing tribunal is the Gender Recognition Panel, which has issued detailed regulations and guidance regarding legal recognition of transsexual people in their acquired gender.

It is important to note that the references to "transsexual" here, rather than "transgender," mark an important distinction. The Gender Recognition Panel's standard application guidelines require that applicants show that they "have, or have had" gender dysphoria; have lived "fully for the last two years" in the acquired gender, and "intend to live permanently" in the acquired gender. Thus, those who do not intend to transition from one gender to another on a full-time basis, or to do so permanently, are not covered by the law. While the guidelines do not seem to require genital surgery, they are narrower than the definition of "transgender."

News: London seeks transgender figures

Suppliers working on contracts to renovate London have been asked to provide extensive details about their workforces, including the number of transgender staff they employ. The London Development Agency move is part of a wider government drive to increase gender and ethnic diversity among its suppliers. Questions include the percentage of staff and company owners who are from black, Asian or minority ethnic groups and the percentage of disabled employees, as well as the number of lesbian, gay, bisexual and transgender staff.

This task is likely to be complex for London HR personnel. The questionnaire asks "What is the % of Lesbian, Gay, Bisexual, Transperson (LGBT) staff in your company workforce?" It defines "transpersons" as "people who have the desire to live and be accepted as a member of the opposite sex ." Measuring that desire is not easy because most transgender persons do not reveal it to their employers until they choose to transition from one gender to another. Once they have transitioned, they may choose to live in their new gender without revealing the fact to new employers. In addition, the English laws contain provisions that further complicate matters.

According to Dr. Stephen Whittle, a professor of law at Manchester Metropolitan University, the Gender Recognition Act of 2004 (GRA) allows transgender employees to obtain a "Gender Recognition Certificate" from authorities, requiring employers to recognize a change in gender. The certificate can be obtained upon a showing that they have been diagnosed with "gender dysphoria" (in the US, generally referred to as "gender identity disorder") and have lived in their new role for at least two years, or have had sex reassignment surgery. However, it also makes it a crime, with a fine of up to £5,000, to disclose that a person has a Gender Recognition Certificate. It is a strict liability offense, so 'reasonableness' is not a defense. In addition, a transgender person is not obliged to disclose whether they have obtained a certificate. Another law, the Data Protection Act, requires that information should only be retained while it is relevant. Keeping a copy of the Gender Recognition Certificate in the employer's files may violate the law if the file is accessed by unauthorized personnel.

As a result, HR personnel may not know if a person is transgender, or has obtained legal gender recognition. It is likely that the numbers will reflect fewer transgender personnel than actually exist.