Equality Tribunal Decision on Transgender: A Good Beginning Towards the Protection of the Rights of Transgender People

 

CCJHR blog is pleased to be able to repost this blog by Dr Tanya ni Mhuirthile from Human Rights in Ireland

The recent decision of the Equality Tribunal that discrimination on the basis of gender identity amounts to a breach of rights under the Employment Equality Acts is to be welcomed. It represents a huge step forward in terms of protection for those who have questioned their gender at birth.

As has been well reported (here and here), the case before the Equality Tribunal concerned a male-to-female transgender woman, Louise Hannon, who was constructively dismissed from her workplace when she revealed her preferred gender identity to her employer. A large part of the treatment for gender identity disorder requires ‘real life experience’ where the person lives in the preferred gender role without the need to revert to the gender role of birth. In this case, her employer informed Ms Hannon that she could only dress in her female identity while in the office and would need to change to her previous male identity when meeting clients. She was not permitted to use the female toilet at her workplace, even though it was not unusual for her male colleagues to use it if the male toilet was occupied. Despite a number of requests to do so, her employer failed to provide her with an email address in her new legal name. Finally, her employers requested that she relocate to new offices and, as these were not yet ready, that she work from home for a short while. When, having on a number of occasions over the ensuing months informed her employer that she was finding it impossible to work from home, Ms Hannon requested that she be permitted to return to the office she was informed that a new person had started working in the office and that there was no room for her. The Equality Tribunal found that there is a legal obligation on employers to enable people with gender identity disorder work in their preferred gender. In this case, it found that the employer’s request that the complainant switch between male and female identity was ‘clearly ludicrous’. Thus the tribunal held that the approach of her employer to the issue of Ms Hannon’s gender identity amounted to discriminatory dismissal on gender and disability grounds.

This is a historic decision as it represents the first time where the Employment Equality Acts have been successfully used to provide protection from discrimination for transgender people. This is an important step towards securing the long term wellbeing of a small but marginalised group within Irish society.

Transphobia is the fear of, or aversion to, or discrimination against transgender people or people who transgress (or are perceived to transgress) norms of gender identity or gender expression. Consequently, it has a negative impact on a person’s ability to fully participate in society. Transgender people face daily discrimination, as the facts of this case clearly illustrate. The report ‘Transphobia in Ireland’ produced by Transgender Equality Network Ireland (TENI) in 2009 identifies the wide ranging nature of transphobia experienced in Ireland. Of particular concern in this regard is the lack of express protection under equality or hate crime legislation for transgender people. Under Irish equality legislation, one of the grounds for discrimination the ‘gender ground’ is currently defined as ‘that one is male and the other is female’. Although this decision of the Equality Tribunal is to be welcomed for interpreting the gender ground as including trans identity, such protection could be considerably strengthened by a simple amendment of equality legislation to include expressly the phrase ‘ or on the grounds of gender identity and/or gender expression’ within the gender ground.

The social disenfranchisement experienced by trans people is heightened by the lack of legislative framework to enable the recognition of trans people’s preferred gender identity. Famously, in the Foy case, the High Court ruled that this absence is incompatible with the State’s obligations under the European Convention on Human Rights. (I’ve previously blogged about the introduction of such legislation here.) The Gender Recognition Advisory Group is due to report to Joan Burton, Minister for Social Protection shortly with proposals for the introduction of gender recognition legislation. Such legislation will ensure that a person is legally treated as being of the preferred gender identity from the moment of recognition onward. However, it will not guarantee protection for those people who are not yet recognised. Therefore, people who are at the most vulnerable and early stages of the transition process will not be explicitly protected by legislation. To ensure that their dignity is fully respected, the Equality Acts must be amended to account for issues of gender identity and gender expression.

The recent census represents a golden opportunity missed in terms of assessing the multiplicity of gender identities in Ireland. In response to the question on gender only two options were available on the census form: male or female. Had a third box ‘other’ with space for inclusion of one’s own identity been available, this would have been a simple and inexpensive way to research the issue of gender identity in Ireland. The failure to do so reflects the institutionalised invisibility of transgender identities. Ireland’s civil and public service is sorely lacking in policies on gender identity issues. With the notable exception of the passports legislation which will grant a passport reflecting a person’s preferred gender identity in certain circumstances, interaction with officials of the State is heavily dependent on the goodwill and understanding of the individual public servant. This situation needs to be rectified by the introduction of trans friendly policies which ensure parity of treatment with all other people irrespective of gender identity.

The decision of the Equality Tribunal is a first step towards safeguarding the rights of transgender people. However, significant gaps in protection persist. The Equality Acts should be amended to account for trans experience. Similarly, policies on gender identities should be introduced throughout the civil and public service. Finally, broad and inclusive gender recognition legislation should be enacted. Taken together, these measures will help to ensure equality and respect for transgender people. 

 

New edition of the Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response

By Dug Cubie

This week sees the formal launch of an updated and revised edition of the Sphere Project’s Humanitarian Charter and Minimum Standards in Humanitarian Response (most commonly known as the “Sphere Handbook”). Simultaneous events are being held in over 20 countries around the world, including a launch in Dublin organised by Plan Ireland, on 14th April 2011.

Following the complex international humanitarian responses in the early 1990s to the conflicts in Somalia, the former Yugoslavia and particularly in Rwanda, non-Governmental organisations recognised Governments were increasingly examining the need to regulate humanitarian aid. This possibility of external regulation coincided with many NGOs’ own desire to promote performance and accountability for their actions, and led a coalition of humanitarian NGOs to propose the introduction of quality standards in relief activities.

The resulting Sphere Project aimed to produce a set of industry standards for the provision of humanitarian assistance, prefaced by a beneficiaries’ charter to highlight the rights of those facing a humanitarian crisis. The dual mandate to create both industry standards and consumer rights was controversial, with organisations like Médecins sans Frontières (MSF) concerned that minimum standards would be difficult to implement in practice, except in camp-like settings where humanitarian agencies were fully responsible for the provision of basic services. Nevertheless, the Humanitarian Charter and Minimum Standards in Disaster Response was first published in 2000 and elaborated core principles and technical standards applicable for all humanitarian agencies. Drawing on existing international law and a diverse range of guidelines, the Sphere Handbook provided the first comprehensive set of standards and indicators for the provision of humanitarian assistance. The Handbook was subsequently revised and updated in 2004, with the third edition now being launched.

The 2011 edition of the Handbook follows a similar format as previous editions, but includes a strengthened section on human rights protection and a re-written Humanitarian Charter, as well as updated qualitative and quantitative indicators for each of the minimum standards. The Handbook now contains four interconnected sections: the Humanitarian Charter, Protection Principles, Core Standards and Minimum Standards.

The bulk of the Handbook is comprised of the Core Standards and Minimum Standards. The Core Standards refer to common process standards applicable across all thematic and technical sectors. These include: participation by beneficiaries; co-ordination and collaboration; assessment and design of programmes; and key competences for humanitarian workers. Detailed sector-specific Minimum Standards, with corresponding key indicators and suggested activities, are then elaborated in four areas: water supply, sanitation and hygiene promotion; food security and nutrition; shelter, settlement and non-food items; and health action. Cross-cutting these sectoral standards are thematic issues: children, disaster risk reduction, environment, gender, HIV/AIDS, older people, persons with disabilities and psychosocial support.

Preceding these is the Humanitarian Charter which forms the conceptual underpinning of the Handbook by drawing on international humanitarian law, human rights and refugee law to reaffirm the primacy of the humanitarian imperative in all actions to assist those affected by disasters or conflicts. In this new edition, the Humanitarian Charter has been re-written to make it easier to read and structured more coherently around common humanitarian principles, and is followed by a new section on Protection Principles to provide guidance on how to operationalise the rights contained in the Charter.

The Humanitarian Charter centres around three overarching principles: the right to life with dignity; the right to protection and security; and the right to receive humanitarian assistance. In other words, the Charter is premised on the fact that civilians affected by natural or human-made disasters or armed conflict have a right to life with dignity, and therefore have a right to protection and assistance. It follows that an individual’s right to life entails the right to have steps taken to preserve life where it is threatened, and a corresponding duty on others to take such steps. Implicit in this is the duty not to withhold or frustrate the provision of life-saving assistance.

However, the Charter is explicit in recognising that these rights are not formulated in the same terms under international law, and while they reflect international law, the rights set out derive their force from the fundamental principle of humanity. By reflecting the ethical and moral obligations of humanitarian agencies, as well as the legal rights and duties of States, the Humanitarian Charter exceeds accepted binding norms of international law. It invokes the general principles of humanity and impartiality, and humanitarian agencies are expected to act in accordance with these principles.

Yet this expansive view of the relevant legal obligations raises the question of the legal validity of the Charter, and by extension the role that “soft law” or “non-legal normative standards” play in the development of new international norms. The Sphere Handbook is only one, albeit the best known, of several Quality and Accountability initiatives in the field of humanitarian assistance. The interplay and coherence between these non-Governmental regulatory approaches, and the potential codification of international law relating to the protection of persons in the event of disasters being led by the International Law Commission has yet to be determined.

Nevertheless, the development of the Humanitarian Charter and Minimum Standards, and their revisions in 2004 and 2011, comprise the input of over 400 organisations from 80 countries. Many donors, including Governments and UN agencies, now require organisations to commit to the “Sphere standards” to access funding opportunities. Therefore, not withstanding its lack of legal enforceability, the Sphere Handbook should be viewed as a key text for the development of an international legal framework for international disaster response law. The Sphere Handbook represents the majority consensus of numerous humanitarian agencies and staff, and the inclusion of a specific reference to a right to humanitarian assistance is to be welcomed as part of the growing understanding of the rights-holders and duty-bears in disaster settings.

Copies of the new edition of the Sphere Handbook can be ordered from the publisher at: http://practicalaction.org/publishing/sphere