Under new legislation, a persons preferred gender will be fully recognised by the state.

Analyse the affect of this new legislation on employment law and on organisational practice.
Highlight potential issues for companies as well as opportunities to strengthen inclusion and
diversity initiates.

Contents

Introduction............................................................................................................ 3
Definition.............................................................................................................. 3
Legislation in Ireland................................................................................................ 3
Transgender in the workplace...................................................................................... 4
Dr Lydia Foy.......................................................................................................... 4
Family issues.......................................................................................................... 5
Effect of this new legislation on employment law.............................................................5
Issues and concerns for other employees........................................................................6
Opportunities to strengthen inclusion............................................................................ 7
Conclusion............................................................................................................. 8
Bibliography........................................................................................................... 9
Introduction
Transgender issues have been grabbing headlines in many countries in recent months.
Possibly the most notable story is that of Bruce Jenners televised announcement about his
gender transition. Mr Jenner, the Olympic gold medallist, and a member of the Kardashian
family, informed Diane Sawyer during his TV interview that he was making the transition to
female from male (NY Times, 2015). Beyond the mass media and TV culture, a series of
litigation and legislation is causing employers to now pay better attention to all events that
may arise in transgender cases in the workplace, so as to prevent discrimination and related
issues (Orick, 2015).
In the following paragraphs, I will identify what transgender is, and how the recent changes
in Irish law could impact on companies. I will also discuss how managers might effectively
accommodate people who are transgender in the workplace as well as dealing with any issues
which might arise from other employees.

Definition

According to the HSE, gender dysphoria is a complex condition that can be difficult to
understand. Therefore, it helps to distinguish between the meanings of a number of different
gender-related terms. Gender dysphoria is a condition that describes the feeling of being
trapped in a body of the wrong sex. Gender identity is the gender that you feel you should
be. Transsexual is someone with an extreme and long-term case of gender dysphoria, who
seeks to alter their biological sex to match their gender identity (HSE, 2015).

Legislation in Ireland
On 15th July 2015, The Gender Recognition Bill was passed by the Oireachtas. One week
later the Gender Recognition Act was signed into law by President Michael D. Higgins.
The bill enables transgender people to change their birth certificates and to achieve full legal
recognition of their preferred gender. The bill is an updated version of a previous bill of 2008
and removes a clause, which required a supporting statement from a doctor (RTE, 2015).
Ireland has become the fifth country in the world to specifically introduce legislation based
on self-determination for transgender people. Ireland has now joined Argentina, Denmark,
Malta and Colombia, in removing such medical criteria from the legal recognition
process. This means there is now no perquisite for medical interventions or diagnosis of a
mental disorder. Transgender people over the age of 18 will be able to self-declare their
gender, by means of a statutory declaration. (TENI,2015)
Transgender in the workplace
The transgender bill was passed months after the people of Ireland backed same-sex marriage
by a landslide in a referendum that marked a dramatic social shift in a country that
decriminalised homosexuality just two decades ago (The Gardian, 2015). Acceptance of
transgender people has fortunately become more commonplace in our society albeit many
possibly feel that they do not understand fully the mind set of those who choose to change
gender identity, not to mention the associated correctness and use of terminology in
addressing those who change their gender. We are unsure of acceptable behaviour in
conversation and do not fully know what is and, is not offensive both in social settings as
well as in the workplace. It is important that we need to become clearer in our knowledge of
transgender as part of our acceptance. People tend to confuse a persons orientation with their
presentation. This confusion is not limited to heterosexuals. Many people think that all
transgender people are also gay. This is not true, evidence shows that 33 percent of
transgender people are heterosexual; 33 present are homosexual, 33 percent are bisexual and
the remaining 1 percent is asexual (Canas & Harris, 2011).

Dr Lydia Foy
The passing of the recent legislation is in many ways due to the much campaigning by the
transgender community and its supporters. This was often lead by Lydia Foy, who was the
first person to legally challenge the Irish state, in an attempt to gain legal recognition (Time,
2015). The story of Dr Lydia Foy is one of many years of effort in order to be recognised as
having fully legal rights as a transgender person. Had it not been for her persistence in
leading legal challenges over the last twenty years, it is unlikely that Ireland would have
passed its recent transgender legislation.

In the early 1990s Lydia Foy underwent the physical transgender process, and in 1992, she
underwent irreversible surgery to complete her transgender progression (Irish Times, 2007).
In 2007, the High Court ruled that Irish law in her case was incompatible with the European
Convention on Human Rights (Irish Times, 2007). The judge said that on this issue Ireland
as of now is very much isolated within the member states of the Council of Europe (FLAC,
2013). He also expressed considerable frustration at the failure of the Government to take
any steps to assist transgender persons in the five years since the Goodwin decision in the
Strasbourg Court. By 2008, the State decided to appeal the high court judgment in the Foy
case (Irish Times,2008). However, in June 2010, the Irish Government withdrew its appeal
and set up an inter-departmental committee on the legal recognition of transsexuals. The
report which was generated from this Gender Recognition Advisory Group was published in
July 2011 and made Recommendations on the legislation required to enable the Minister for
Social Protection to set up a scheme whereby the State formally recognises the changed
gender of transsexuals who have made a permanent transition to the preferred gender (DSP,
2011) Launching the report, the Minister for Social Protection said the government would
introduce gender recognition legislation as soon as possible, but by February 2013, no
legislation had been introduced (FLAC, 2013)

So again, in February 2013 Free Legal Advice Centres (FLAC), representing Lydia Foy,
announced that she had issued new proceedings in the Irish High Court seeking orders
requiring the government to act on the judgment of Mr Justice McKechnie in 2007 and
enable her to obtain a new birth certificate recognising her female gender. Her case was
successful.

Family issues
In addressing transgender issues, whilst we often see these issues as very public and legal
challenges, it should not go unsaid that there is often a human element of sacrifice and of loss
involved also. Family issues were not absent form the Lydia Foy story either. She had left
the home in 1990, and subsequently lived entirely as a female. A judicial separation was
granted on 13 December 1991. While Foy was at first granted conditional access to the
children, who lived in custody of their mother, in May 1994 the Circuit Court prohibited all
access (Family Law Ireland, 2011). In the first transgender appeal case, raised by Dr Foy in
October 2000, Foy's former wife and their two daughters contested her plea, claiming that it
could have "an adverse effect on their succession and other rights (Irish Times, 2007).
Despite these problems, Foy continued her pursuit of justice.

Effect of this new legislation on employment law

A former Saks employee Leyth Jamal, filed a lawsuit alleging that Saks discriminated against
her for being transgender. In January 2015, Sacks Fifth Avenue claimed that they had a right
to discriminate against their transgender employees and filed for an ex-employees
discrimination lawsuit to be dismissed because transsexuals are not a protected class under
Title VII the part of the 1964 Civil Rights Act that bans employment discrimination based on
race, religion, or sex (Bloomberg, 2015). In conclusion of this issue, Saks settled the lawsuit
(Orrick,2015). In a workplace context, an employer can be liable for the acts or omissions of
its employees, provided it can be shown that they took place in the course of their
employment. Going forward, this issue of vicarious liability in relation to transgender
discrimination is one which will need consideration and due diligence by Irish employers
also.

Issues and concerns for other employees

In the case of Flynn v Power, the court found in favour of the employer where Eileen Flynn
who decided to take up residence with a married man, was deemed to be not upholding the
ethos of the school in which she worked (RTE, 2010). Eventually, two years prior to her
death in 1998, Flynn was reinstated into a permanent teaching position. There have been
other cases, where, even in the interviewing process maintaining the religions ethos was not
found to be a justification for asking probing questions about sexuality and religion and
personal opinion regarding these matters.

A primary school teacher (represented by INTO) won a discrimination case in 2015, when,
during interview, a nun asked the interviewee about her personal views on the Forum on
Pluralism and Patronage, set up by former minister Ruairi Quinn to reduce the dominance of
the Catholic church on primary education and then went on to ask 'what about the homos?'

The Equality Tribunal ruled that the teacher, who was deputy principal in the school at the
time, and was passed over for the job by a less experienced colleague, was discriminated
against on the grounds of age, religion and sexual orientation. The Equality Officer found
that this question was asked to ascertain her general religious outlook, which he found was
outside the remit of the exemptions granted to schools under legislation to protect their
ethos (Irish Times, 2015). It is becoming evident in Ireland, that whilst religious beliefs and
ethos are to be upheld where ever possible, we, as a nation are becoming more secular. With
this in mind, employers and interviewers should take additional care to omit conversation
relating to marital/civil status, number of children, date of birth, age, place of birth, or the
medical history of the applicant or employee.

Jane Faye, a prominent UK transgender campaigner stated that "There are people, who for
religious reasons, find it difficult to accept having transgender women at work and there has
to be a space for them to explore that". Faye also describes the role of the employer, by
saying "the key thing is the employer needs to make it absolutely clear that there will be no
leeway or concessions for people who act in a discriminatory manner as it not only reflects
on the company, but will be treated as a criminal offence Guardian, 2012).
Opportunities to strengthen inclusion
According to the HSE, it is estimated that 1 in 4,000 people is receiving medical help for
gender dysphoria. However, there may be many more people with the condition who have
yet to seek help. On average, men are diagnosed with gender dysphoria five times more often
than women (HSE, 2015). Amnesty International currently estimates that up to 1.5 million
people across Europe are transgender (Amnesty International, 2014). As the law in this area
continues to develop, employers should be proactive in their approach towards transgender
employees so as to eliminate risk of harassment or discrimination complaints within the
workplace. Such policies that should be considered are updating or re-writing non-
discrimination and anti-harassment policies to include transgender status, as well as gender
identity, expectations, or stereotypes (Orrick, 2015).

One of the actions which employers can take to prevent discrimination issues around
transgender, would be to actively endorse the non-discrimination policies, laid out by law,
such as the Employment Equality Acts 19982011, which prohibits discrimination on nine
grounds in employment, including access to and vocational training and work experience
(IHRC 2015), as well as the Equal Status Acts 20002012, which prohibits discrimination on
nine grounds in goods, facilities and services, accommodation, and education. (IHRC, 2012)

On a more practical note, employers should consider ensuring that all employees have safe
and adequate access to restrooms consistent with their gender identity, and if possible, adding
a gender-neutral option or a single-occupant restroom. Also re-examining gender-based
dress codes may be necessary, as well as making make any necessary adjustments (Orrick,
2015)

With regard to health benefits, our companies may need to examine health insurance policies
to determine whether procedures related to gender transition are covered (Orrick, 2015) as
well as implementing domestic partner benefits that are realized for other employees (Canas
& Harris, 2011)

Human resources departments might need to create a gender transition policy/procedure that
will allow the employee and an appropriate company representative, to discuss the more
practical issues around transgender, such as the timing of any surgery and whether time off
will be needed. The softer issues, such as what name the employee will want to use, whether
the employee wants co-workers to know about the change, and any other accommodations or
requests the employee might have will need to be addressed also (Orrick, 2015).
Employers could establish employee-resource groups with both mentoring and reverse
mentoring programs. The idea behind this is to recognise and develop potential solutions to a
wide variety of workplace challenges, often affiliated to their identity affiliation. The goal is
to create relationships and networking opportunities as well as to guide and enhance overall
business growth. Resource groups should be inclusive and not seen as a go-to group or issues
and policies (Canas & Harris, 2011).

Conclusion
Transgender people have attempted for many years to let us understand the complexity of
their everyday lives and give us a true insight into their difficulties they face both in law and
in the workplace. Whilst the Irish government has passed new legislation to give transgender
people more recognition and rights, the fullness of time will help us to realize the full
implications both in law and in the workplace for this change in legislation as well as give
great companies the opportunity to prove how inclusion in the workplace is always a positive
move.
Bibliography

Books & Journals

Kathryn A Canas, Harris Sondak, 2011; Opportunities and Challenges of Workplace

Diversity, Second Edition; Prentice Hall

Websites:

Newyork Times - Bruce Jenner story

[Online] http://www.nytimes.com/2015/04/26/business/media/bruce-jenners-transgender-
announcement-draws-16-8-million-on-abc-news.html?_r=0
[Accessed 1st November 2015]

Emergence of Transgender issues in the workplace raises questions for employer

[Online] http://blogs.orrick.com/employment/2015/05/21/emergence-of-transgender-status-
issues-in-workplace-raises-compliance-questions-for-employers/
[Accessed 1st November 2015]

Bruce Jennner TV interview

[Online]. https://www.youtube.com/watch?v=JaqLG3myKUk
[Accessed 1st November 2015]

HSE, Gender Disphoria

[Online] http://www.hse.ie/portal/eng/health/az/G/Gender-dysphoria/
[Accessed 1st November 2015]

RTE News, Gender recognition bill

[Online] http://www.rte.ie/news/2015/0715/715016-gender-recognition-bill/
[Accessed 1st November 2015]

Transgender Equality Network Ireland

[Online] http://www.teni.ie/news-post.aspx?contntid=1409
[Accessed 1st November 2015]

The Guardian Ireland Transgender Law, Gender recognition bill passed

[Online] http://www.theguardian.com/world/2015/jul/16/ireland-transgender-law-gender-
recognition-bill-passed
[Accessed 1st November 2015]

Time.Com, Ireland Transgender Law

[Online] http://time.com/3961941/ireland-transgender-law/
[Accessed 1st November 2015]

Irish Times, Dentist Tells of Identify Trauma

[Online] http://www.irishtimes.com/news/dentist-tells-of-identity-trauma-1.1202431
[Accessed 1st November 2015]
Irish Times, State To Appeal Judgement in Foy Case to Supreme Court
[Online] http://www.irishtimes.com/news/state-to-appeal-judgment-in-foy-case-to-supreme-
court-1.908534
[Accessed 1st November 2015]
Department of Social Protection, Report of the Gender Recognition Advisory Group
[Online] http://www.welfare.ie/en/Pages/Report-of-the-Gender-Recognition-Advisory-
Group.aspx
[Accessed 1st November 2015]

FLAC, Foy Briefing notes

http://www.flac.ie/download/pdf/foy_case_briefing_note_feb_20131.pdf
[Accessed 1st November 2015]
Family Issues
Family Law Ireland; She, He or It
[Online] http://www.familylawireland.ie/she-he-or-it/
[Accessed 1st November 2015]

Irish Times; Dentist tries again to have birth registered as female

[Online] http://www.irishtimes.com/news/dentist-tries-again-to-have-birth-registered-as-
female-1.1202218
[Accessed 1st November 2015]

Business week, Saks and Company in legal fight over transgender former employee.
[Online] http://www.bloomberg.com/bw/articles/2015-01-09/saks-and-company-in-legal-
fight-over-transgender-former-employee
[Accessed 1st November 2015]

Orrick; Emergence of transgender issues in the workplace raises compliance questions

[Online] http://blogs.orrick.com/employment/2015/05/21/emergence-of-transgender-status-
issues-in-workplace-raises-compliance-questions-for-employers/
[Accessed 1st November 2015]

RTE, Scannal - Eileen Flynn

[Online] http://www.rte.ie/tv/scannal/eileenflynn.html
[Accessed 1st November 2015]

Irish Times; Teacher wins case over questions on teachers who are homos
[Online] http://www.irishtimes.com/news/education/teacher-wins-case-over-questions-on-
teachers-who-are-homos-1.2071022
[Accessed 1st November 2015]

The Guardian; transgender issues in the Workplace

[Online] http://www.theguardian.com/careers/transgender-issues-in-the-workplace
[Accessed 1st November 2015]

Amnesty International; Europe, Transgender people face discrimination

[Online] https://www.amnesty.ie/news/europe-transgender-people-face-discrimination-and-
inhuman-and-degrading-treatment
[Accessed 1st November 2015]