Landmark transgender case a ‘warning’ to every organisation

A transgender woman has won a case of both direct and indirect discrimination against Condor Ferries after a staff member advised her to “use the disabled loos”.

As part of the ruling, Condor Ferries – which sails between the Channel Islands and Poole, Portsmouth and France – has been told to remove the words ‘ladies’ and ‘gents’ from its toilets, and update its equality and diversity policy and employee assistance programme, to bring them in line with the Islands’ gender discrimination laws, which were introduced in 2015.

Taxi driver Erin Bisson, from Jersey, first lodged a complaint in November last year, after calling the company to ask which toilets she should use. Bisson said the Condor employee’s advice to use the disabled toilets amounted to direct discrimination, while the use of words rather than symbols on toilets amounted to indirect discrimination.

The Jersey tribunal agreed that both counts of indirect and direct discrimination were “well founded” and Condor Ferries admitted to a “non-intentional and non-malicious act of discrimination”.

The company has since worked with the claimant to draw up a list of measures “to remove the possibility of inadvertent discrimination”, and said it had implemented an all-staff diversity training programme for the first time in March.

Caroline Dutot, employment and discrimination law specialist at Jersey firm Ardent Chambers, said this “first of its kind” case was a warning to all businesses, “especially those providing goods and services to members of the public, to review their policies and practices around transgender persons”.

“This case shows that something as simple as the way in which a person is addressed or the manner in which they are directed to use washroom facilities can result in findings against a business of indirect discrimination.

“The tribunal will not consider a lack of employee awareness an acceptable explanation for any discriminatory conduct.”

As a Crown dependency, Jersey maintains autonomy from the UK, and the case – heard in Jersey’s courts – was the first of its kind under the Discrimination (Jersey) Law.

However, Claire Williams, director of inclusion and diversity at Inclusive Employers, said there were lessons to be learned across the whole of the UK, and that the case from the Channel Islands represents “another step towards best employment practice and true inclusion for trans colleagues”.

“Employers should certainly be checking their signage and moving towards symbols rather than words,” she advised. “This is the easy bit though. The most important thing is to develop a culture where all staff feel confident to respond appropriately to simple questions, such as the one posed to Condor by Erin.”

Williams said the recently published Government Equalities Office guidance on recruiting and retaining transgender staff was a good place for HR and employers to find practical tips.

She added: “Please do not assume that because you don’t have any trans staff this doesn’t impact on you – you may have trans colleagues that haven’t come out and, if you want to secure the very best talent, you must be seen as a ‘trans friendly’ employer. Simple steps contribute to demonstrating an inclusive culture.”

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