Tribunal finds trans woman was discriminated against

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Earlier this year an employment tribunal has found that a trans woman was discriminated against when she was asked about her use of the changing areas. This discrimination was based on the protected characteristic of gender reassignment.

The full case information can be found here and is the story of a trans woman, identified only as V, suing a teaching hospital over discrimination. The full decision shows that the tribunal finds that the trans woman was discriminated against for being transgender but does not support her claim she was discriminated against for disability and mental health.

Reading the whole decision the specific instance of discrimination was regarding V making comments to a colleague about feeling unwell. In which she is reported to have said she’s had to wring her underwear out. This colleague then passed these comments along to a more senior member of staff which she says she did out of concern for V’s health.

The senior member of staff took a note of this, leaving exclamation marks around the underwear comment, and later would approach V for a conversation. The conversation did not talk about V’s health and instead focused on V having taken her underwear off in the changing rooms and whether she was dressing appropriately. In the absence of a good explanation; these comments helped the judge find that the trans woman was discriminated against based on gender reassignment.

Specifically the judge, employment judge Davies, writes that the burden is on the teaching hospital to prove that their questioning of V was not due to her being transgender. They could not do so therefore the judge found that the trans woman was discriminated against.

There’s a bunch of other stuff in the decision too regarding mental health; specifically depression and anxiety and disabilities such as dyslexia. Some of it makes for hard reading as issues alleged by the claimant are dismissed where I don’t necessarily believe they should be, or would be if the judge had a better understanding of how these issues can manifest.

For example, one part of the decision dismisses her claim that she was warned about discplinary action by senior staff stating; “These discussions were in response to
the Claimant’s questions, they were not warnings issued by the Trust“. This in reference to three times she asked staff to clarify something – two of which gave her incorrect information.

The first incorrectly told her she would receive a letter – she did not. The second correctly said the thing she was concerned about was a matter of discretion. The third incorrectly said she didn’t have to worry because it wasn’t going to happen. In my view she sought this information out repeatedly due to her anxiety and the dismissal of them being warnings because of that seeking is, in my opinion, a failure to understand anxiety as a condition.

The same can be said for dyslexia later in the decision. The judge appears to handwaive away an issue because V could have just filled in another form and sorted out the issue. But I have dyslexia too and the last thing I want to do is fill in forms. It’s not just that it’s difficult its that the condition itself makes me put it off until I forget about it – especially if I’m under stress as I imagine V would have been here.

Mainstream media at the time didn’t really focus on the fact that the tribunal found that a trans woman was discriminated against and that actually yes; it is discrimination to treat us differently for being transgender. Instead opting to focus on the sensational aspects of the story such as making references to her underwear. Alongside comments from Miriam Cates MP who didn’t agree with the decision.

One of the better articles on it is from Pink News, which still leads with the fact that V alleges finding a note in her locker which included a transphobic slur and told her to get out. But that isn’t the important part of the story at all in my opinion, as attention grabbing as it might be.

The important part of the story is that they treated this woman differently than they would any other woman because she is transgender. This is what led the judge to find that the trans woman was discriminated against. To my knowledge, employment tribunals don’t set legal precedent but they do add some legal weight to future decisions nonetheless. So we should absolutely be talking about this and ensuring more trans people understand the law and their rights.

Gemma Stone
Gemma Stone is a transgender writer who has been covering the rise of transphobic hate campaigning in the UK. She has written hundreds of articles dissecting aspects of transphobia including debunking blatant disinformation. She is very tired and trying her best, and hopefully having a positive impact on such a beautiful community.

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