by Emma Quinn, Senior Associate, Employment at Lewis Silkin Ireland
The UK Supreme Court made it clear that transgender people should not be discriminated against, and that they are protected under the characteristic of “gender reassignment”. Transgender individuals are also able to claim direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender.
However, the question that the UK Supreme Court was being asked to consider was whether a transgender person who has a gender recognition certificate would be treated as their acquired sex for the purpose of the Equality Act, or whether the definition of ‘sex’ under the Equality Act was limited to a person’s biological sex.
In determining that such terms are strictly limited to biological sex, the decision impacts the way transgender people in the UK access services and single sex spaces under UK equality legislation. One of the most publicised issues for employers in this context is probably in the provision of toilets and changing facilities. The decision means that, whereas previously it was considered discriminatory not to let transgender employees use the toilet or changing facilitiy that align with their gender, to do so now raises complex legal considerations in the UK.
In this insight we consider how, if at all, this decision impacts the rights of transgender employees in Ireland insofar as our employment equality laws are concerned.
The gender ground and transgender rights in Ireland
At the outset, it is important to note there are some keys differences to be aware of between the legal position here under Irish employment equality legislation and that in the UK. Unlike the UK, Ireland does not have a distinct “gender reassignment” ground for discrimination claims. Also, the protected grounds in Ireland are slightly different to the protected grounds in the UK. The relevant ground in Ireland is “gender” and in the UK is “sex”. The two terms have a slightly different meaning with gender, arguably, being wider. The Supreme Court judgment expressly commented just on “sex”.
Therefore, transgender individuals seeking redress under equality law in Ireland do so on the basis of the “gender” ground as defined by Employment Equality Acts (EEAs) and the Equal Status Acts 2000-2018 (ESAs)
The EEAs prohibit gender discrimination in the workplace and the ESAs prohibit gender discrimination in the provision of goods and services. The gender ground is defined in the ESAs as where one person “is male and the other is female”. Under the EEAs, it is defined as where one person “is a woman and the other is a man”.
Under both Acts, the accepted position in Irish case law is that transgender persons are protected against discrimination under the gender ground – i.e. a transgender woman should be treated as if born biologically female. If a transgender woman brings a claim of discrimination, the appropriate comparator is a cis woman.
These laws, along with the Gender Recognition Act 2015, protect transgender individuals from discrimination both in terms of services and in an employment context. Furthermore, the more recent Work Life Balance and Miscellaneous Provisions Act 2023 expressly extends maternity protections to transgender men, further bolstering the rights of transgender employees in Ireland.
A look as caselaw in Ireland
Certainly, Ireland’s legal framework concerning transgender individuals has evolved significantly since the landmark Foy v An tArd Chlaraitheoir decision in 2007. In that case, Dr. Lydia Foy, a transgender woman, sought to have her birth certificate amended to reflect her female gender and a change of name. The High Court ruled that the failure to recognise Dr. Foy’s gender identity constituted a violation of her rights under Article 8 of the European Convention on Human Rights. This ruling paved the way for the Gender Recognition Act 2015, which provides legal recognition of an individual’s gender, reflected in the issuance of a Gender Recognition Certificate.
The scope of the gender ground was further clarified in Hannon v First Direct Logistics Limited [DEC S2011-066], where the claimant successfully argued that she was unfairly dismissed upon revealing her gender identity. The Equality Tribunal found in her favour and awarded €35,000, affirming that transgender individuals fall within the protections afforded under the gender ground.
Other notable cases include Deirdre O’Byrne v AIB [DEC-S2013-015], where the claimant was awarded €5,000 under the Equal Status Acts after AIB refused to update her bank account to reflect her new name. The Tribunal ruled that there was “no fundamental difference” between a name change by deed poll and a name change due to marriage or civil partnership.
In Lee McLoughlin v Paula Smith Charlies Barbers [ADJ-00011948], a transgender man was refused a haircut, with the barber stating, “We don’t cut ladies’ hair.” The Workplace Relations Commission found this to be gender-based discrimination and awarded the complainant €5,000.
Conclusion
While UK case law is often regarded as persuasive by the Irish courts, the Irish legal position is unlikely to shift to reflect the UK Supreme Court’s decision. Therefore, going back to the provision of toilets and changing facilities example referred to above, having any policy in place in Ireland which sets out that transgender individuals are expected to use the toilet or changing facility which corresponds to their biological sex is highly likely to be determined discriminatory on gender grounds.
For employers with operations in both Ireland and the UK, they should be mindful of the implications of this judgment and ensure their diversity, equity, and inclusion (DEI) policies are tailored to align with the legal frameworks of both jurisdictions.
