Transgenderism Protections in Irish Employment

by Breda O’Malley Partner, Head of Employment Law, Hayes solicitors LLP

There have been legal developments for transgender persons in Ireland, since the High Court decision in Foy v An tArd Chlaraitheoir in 2007. The Foy case itself involved a transgender woman who had been born psychologically female with male chromosomes and genitalia. This condition is known as ‘Gender Dysphoria’ or ‘Gender Identity Disorder’. The plaintiff sought to have her details in the Register of Births amended from “male” to “female” and a change of name. Upon failure to do so, the Court ordered a declaration of incompatibility with the legal regime in place and found that the applicant’s right to dignity and equality were infringed.

The Foy case led to the introduction of the Gender Recognition Act 2015 which provides for legal recognition of an individual’s gender. This change may be reflected in a gender recognition certificate for which the individual can apply to the Minister for Social Protection.

Additional protections for the rights of transgender persons arise from the Work Life Balance and Miscellaneous Provisions Act 2023. Under this Act, maternity protections now extend to transgender men. This contrasts with the previous protections under the Maternity Protection Act 1994, which were offered to female employees only.

Case Law

In Ireland, the case law regarding discrimination in the context of transgender employees has produced mixed outcomes.

Hannon v First Direct Logistics Ltd [DEC-S2011-066]

This case provided that the protection of the Employment Equality Acts 2000 to 2008 applies to transgender individuals.

Ms Hannon was diagnosed with ‘Gender Identity Disorder’ in and around 2005 and is a male to female transsexual. She claimed that she informed her employer of her true identity and her need to live in this identity. Ms Hannon claimed that she received discriminatory treatment in relation to her working conditions and discriminatory dismissal on the grounds of her gender and / or disability.

Ms Hannon was asked to wait a couple of months to begin her transition to her female identity at work to allow for a new member of staff to get settled first. She was also asked to complete sales over the phone in a male identity and was told that her Operations Manager would meet any clients personally, if required. Ms Hannon was told she would need to work in a male identity for a period of time after coming to the office in her true female identity. It was also requested that she work from home while the Respondent waited for its new offices to open. After a time, Ms Hannon requested that she return to the office. This was refused on the basis that her presence created a “bad atmosphere” and was told that she was free to seek alternative employment.

The Equality Officer was of the view that the approach of the Respondent was not realistic in terms of timing and noted there was no evidence that the Respondent revisited or adjusted their approach when Ms Hannon informed them of her difficulties. The Equality Officer found that requesting Ms Hannon to switch between male / female identity whenever the Company needed it constituted direct discrimination on gender and disability grounds. The Equality Officer also found that the Respondent’s approach amounted to discriminatory dismissal on the gender and disability grounds.

Ms Hannon was awarded 79 weeks’ gross remuneration.

Stanislawska v Jaguar Land Rover Ireland (ADJ-00023582)

In this case, the Workplace Relations Commission (the “WRC”) found in favour of the employer, where a transgender employee claimed to have been discriminated against on the grounds of gender and sexual orientation. The employee submitted that she was dismissed from employment based on an internal complaint she made regarding alleged discriminatory workplace practices. The WRC held that the complainant did not establish a prima facie case of discrimination and decided not to uphold the claim. This claim was brought under the Employment Equality Acts 1998 – 2015.

Customer Service Advisor v Financial Services Provider (0012014)

Similarly, in Customer Service Advisor v Financial Services Provider, the complainant brought a claim under the Employment Equality Act 1998 – 2015, on the basis they alleged to have been discriminated on the grounds of their gender. The complainant identified as a nonbinary transgender person. They claimed that the application form for their employment did not provide an option for transgender and therefore, the complainant had no option but to identify as female on the form, prior to commencing employment. The complainant alleged to have been subjected to constant misidentification at their workplace, which caused them distress and which they raised with HR. As with the previous case, no prima facie case of discrimination was found and the WRC decided that the complaint was not well founded.

McLoughlin v Paula Smith Charlies Barbers (ADJ-00011948)

Although not a complaint in a workplace context, a complaint brought by a transgender male was successful, where the complainant was refused a haircut in a barber, which resulted in discrimination on the grounds of gender. In this case, McLoughlin v Paula Smith Charlies Barbers, the complainant had been told by the respondent, “we don’t cut ladies hair” and refused to provide the service. The WRC awarded the complainant €5,000 under the Equal Status Acts.

UK Position

A UK case from last year found that a transgender employee was unlawfully discriminated against, in circumstances where their details had not been updated on the employer’s administrative system. The female employee sought redress where her “deadname” had been continued to be used after her transition. The employment tribunal awarded the employee £25,000 in compensation.

Key Takwawys for Employers

Employers should ensure compliance with the Gender Recognition Act 2015 and other relevant legislation, including the Work Life Balance and Miscellaneous Provisions Act 2023 by taking the following (non-exhaustive) steps:

• Ensuring that employee records are kept up-to-date, correctly detailing the employee’s gender identity, preferred pronouns, etc;
  • Updating their application processes, particularly where requesting information regarding employees’ identities and genders;
  • Checking what ‘reasonable accommodations’ may be made for employees who are transitioning;
  • Providing refresher training to all employees on their ‘dignity at work’ policies; and
  • Updating policies to reflect any new legislative developments, e.g. regarding who may avail of breaks for breastfeeding.

About the author

Breda O’Malley practises in Employment law and leads the Employment Law team at Hayes solicitors. She advises both employers and employees on all aspects of the employment relationship. Breda adopts a commercially pragmatic approach to dispute issues, avoiding litigation for her clients where appropriate, and using her skills as an accredited commercial mediator.

Breda is a prominent adviser in the area of the Transfer Regulations (TUPE), where she has advised employers outsourcing and changing service providers. Her previous legal practice in commercial law work strongly influences her pragmatic business focused approach to the clients she advises. Breda acts for a broad spectrum of clients from multinational corporations, large public entities and European Works Councils to indigenous Irish businesses, charities and private clients on the employer side. She also acts for C-suite executives in PLCs and multinationals.