We have moved a long way in recognising discrimination against transgender people in recent times, but visibility does not necessarily equate to tolerance or genuine acceptance.
In an American study conducted by Pew Research Centre in 2022, 64% of respondees favoured protecting transgender people from discrimination, yet 60% still thought that a person’s gender is determined by their sex assigned at birth, regardless of their self identification.
In the same study, 38% said society had gone too far in accepting people who are transgender whilst 36% said it had not gone far enough. A large number (43%) expressed discomfort at how quickly views on transgender or non-binary people were changing.
The study also revealed that people who believe that a person’s gender can differ from the one that they were assigned at birth, are more likely to favour laws that protect transgender people from discrimination.
80% of respondees believed that transgender people face some level of discrimination and relatively few considered that society is extremely or very accepting of people who are transgender.
The results of this study portray a somewhat confused picture of a society seeking to demonstrate, at least outwardly, a greater level of acceptance of transgender people, whilst also fundamentally failing to understand the complex issues facing this community.
The fact that there remain deep seated prejudices is reflected in two recent cases in the employment area. The first case was heard by the New Zealand Teachers Disciplinary Tribunal in February of this year. In that case a New Zealand high school teacher refused to recognise the gender identity of a transgender student. The 14 year old student was in the process of transitioning from girl to boy and a preferred male name was listed in the school’s online portal. The teacher refused to refer to the student by that name, and continued to use she/her pronouns.
The teacher argued that doing so was contrary to his religious beliefs and would encourage the student to “go down a path of sin”. He went so far as to claim that he would be guilty of misconduct and child abuse if he was complicit in this.
During the hearing, the teacher made a number of frankly outrageous statements and continued to misgender the student. The submissions made by the teacher in his “defence” included:
“I should not be compelled to call a student by a name that was never presented to me as a legal change, only a change in the school roll and an instruction by the school principal”.
“In this case the student was deciding to try and be identified as a boy even though she admitted that she was born a girl, and therefore wanted to be called by a boy’s name and boy’s pronoun. If this is okay in society, then could not this faulty logic be given as reason for students to identify themselves as anything that is not their actual identity? Apart from gender, this may be race, age, position in society, even identifying as an animal!”.
The Tribunal found that the teacher was not qualified to offer “gender dysphoria” advice – the teacher should have referred to the student by their preferred name and left it at that.
Further, the Tribunal said “For a trusted adult teacher to not only ignore the student’s wishes (and the instruction of the school), but also to isolate them and advise them it was wrong, risked quite significant harm in our view.”
The balance of the teacher’s submissions were found to be “borne from unrealistic hysteria”.
In result, the Tribunal held that the teacher’s conduct adversely reflected on his fitness as a teacher and was likely to bring the profession into disrepute. He was found to have committed serious misconduct and his teaching registration was cancelled.
In another recent case, Ms AB v Royal Borough of Kingston-upon-Thames, which was determined by the UK Employment Tribunal in July 2023, the employer was found to have breached the protections against discrimination on the basis of gender reassignment in the Equality Act 2010.
In that case, the claimant gave notice to her employer that she was intending to transition some 8 months prior to doing so. She complained that she was given no support and that her employer had failed in its duty of care, including by failing to implement appropriate policies to safeguard her health and safety.
The Tribunal found that the failure to implement appropriate policies was an HR failure on a wider scale and not because of the claimant’s protected characteristic. Nor was the employer obliged to conduct a risk assessment as there was no evidence that gender reassignment was a health and safety risk that required this.
However, the employer’s failure to update the claimant’s name in its internal systems meant that she was dead named for nearly 2 years. The Tribunal noted that she was not able to contact anyone to rectify this because doing so would have meant outing herself to a committee of people.
The Tribunal’s finding of discrimination on the basis of a protected characteristic – gender reassignment - may not have been available under New Zealand law. This is because our Human Rights Act does not expressly protect transgender, intersex, or non-binary people, although it is arguable that this falls within the broader category of sex based discrimination.
Prior to the election, former Green MP Dr Elizabeth Kerekere had a private member’s Bill before parliament to outlaw discrimination on the basis of gender identity or expression, and variations of sex characteristics.
These two cases reinforce the importance of clear legal recognition of discrimination on this basis. Whilst a simple law change will not in itself change attitudes, it is a meaningful step in the direction of genuine acceptance and equality.
This article was originally published in The Post
