Gender reassignment creating 'a legal minefield' for employers

The demand for gender reassignment surgery is rising by 15% a year, research presented by WPA at The Royal College of Physicians recently found.

Around 3,500 people are coming forward for treatment each year, out of the 200,000 to 500,000 transsexual people nationwide estimated by the government.

COVER reports on the findings following an article in The Times just over a week ago which drew attention to criticism aimed at Bank of America Merrill Lynch (BAML) for offering free gender reassignment surgery to its UK staff, but without fertility treatment (IVF).

BAML was one of the first companies to extend its health insurance policy to pay for transition three years ago, with IVF treatment excluded partly because it is available on the NHS. With the NHS under strain and the firm offering US employees IVF through their fertility assistance programme, its absence in the policy has come under fire in the UK.

With the inclusion of gender dysphoria within corporate healthcare schemes gaining more attention, WPA's research explored cultural, legal and medical considerations relating to the issue, highlighting that firms such as Lloyds Bank, Goldman Sachs and Netflix are offering gender reassignment as a healthcare benefit to employees.

‘Legal minefield'

According to the report, 'generous offers' to cover cosmetic secondary surgery for transgender people could create a legal minefield if the same offer is not available to other employees, especially considering that gender reassignment treatment can cost up to £100,000.

With pressure to add the treatment as a benefit likely increase within organisations, companies should seek expert advice and ‘tread carefully in this new era of equality of healthcare provision', the report said under the legal direction of Paul McAleavey, a law specialist from Girlings.

‘When employers are deciding what healthcare benefits to include or exclude they must ensure the access to and level of benefits could not be construed as causing any form of victimisation, harassment or direct or indirect discrimination,' reads the report. ‘Indirect discrimination might affect vulnerable people with protected characteristics defined by the Equality Act 2010. This protected group includes individuals before, during and after gender reassignment.'

Discrimination 

McAleavey drew attention to the 10 core treatments available on the NHS and further seven non-core that are not considered essential and highlighted that the cost of trans penis construction is up to £100,000 compared to £70,000 for a male transitioning to female. ‘There is therefore a risk of discriminating against trans men compared with trans women if a healthcare scheme puts an identical financial cap on benefits,' the report said.

There is also a risk that employers could inadvertently discriminate against gender dysphoric employees by not carefully aligning all benefits, such as counselling (viewed as a core part of reassignment by NHS), while offering egg and sperm storage or breast storage to cis gender employees but not for trans employees could also constitute ‘direct discrimination'.

On average, people stay in a job for five years, but gender transitioning may take longer than that and under the Equality Act 2010 former employers may still be able to bring discrimination claims against an ex-employer. ‘Although there is no free-standing obligation for an employer to continue funding treatment, employers should think carefully about what happens with unfinished treatment when employment ends.' 

Scheme limits

While healthcare trust schemes commonly include an annual benefit limit or an overall maximum limit, an employer which states that they are not covering gender reassignment on the grounds of cost only may also be seen as discriminatory. ‘However if gender dysphoria treatment is not offered because it is outside the overall cost, nature and scope of the scheme then this is more likely to be legally justifiable,' the report said.

It also speculated that a recent consultation on reform on the Gender Recognition Act 2004, currently under review, could result in the process of changing gender to a less medicalised and more administrative process.

‘It is currently too early to predict the implications of these developments but they are expected to have profound social consequences,' concluded the report.

Further reading

Aon extends employee PMI scheme to cover gender dysphoria

• PMI
• 03 September 2018

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• Topics
• Employee Benefits
• Group PMI
• discrimination
• transgender
• gender transitioning
• transgender rights
• gender dysphoria
• equality and diversity
• Paul McAleavey