In Jersey’s first ruling under the new sex discrimination law, a Tribunal found Condor Ferries discriminated against a transgender person.

Ms Erin Bisson, a trans woman (i.e. a person who is born male but identifies as a woman), interacted with Condor Ferries in late 2015. Although exact details are unknown (it is not recorded whether Ms Bisson was a passenger or just enquiring), Ms Bisson evidently was not referred to by Condor staff as ‘Ms’ and was directed away from the ladies toilets to either the gents or the disabled toilets (the judgment is silent) which she maintains caused her, as a trans-woman, humiliation and embarrassment. Condor did not deny either act and admitted committing a ‘non-intentional and non-malicious act of discrimination’ against Ms Bisson. The Tribunal found Ms Bisson’s complaints to be well-founded and made recommendation (rather than awarding compensation). These included: (i) Condor updating its Equality and Diversity Policy and sending a copy to Ms Bisson; (ii) Condor updating its Employee Assistance Programme so that all staff will treat Ms Bisson sensitively and address her as “Ms”; and (iii) Condor changing its signage on its toilets – there are no details as regards the manner in which the signage was inadequate.

LAW’s comment: It is regrettable that Jersey’s first case of discrimination under the new sex discrimination law is rather thin on facts and, indeed, law. One can only imagine the Tribunal itself was keen to handle the matter sensitively. So, to grasp this nettle, in the name of giving guidance to employers, we would comment as follows. The important point of this case is that, whether or not you agree with it, the Tribunal’s finding is correct as a question of law. Transgender people are protected from discrimination and Ms Bisson is a transgender person. For Condor to have mistaken her gender, she presumably sounded or presented as male. This is irrelevant in law: Ms Bisson does not need to have medical treatment or a certificate to be recognised as transgender, and businesses are not entitled to know or receive such proof. Accordingly, in law, Ms Bisson should be treated as if she were born female in all things including greetings and toilets. (Unlike Guernsey), our law provides no defences or exceptions to this. A business’s concern for other toilet users has been given no weight in the discrimination law, but all persons, transgender or otherwise, are bound by the general rule of criminal and civil laws when using shared toilets.

We would also remark upon the Tribunal’s recommendations. Updating policies and programmes and/or giving Ms Bisson a copy policy could prove fatuous if staff are not trained on their employer’s policies. Further, LAW understands Condor are to move away from toilet signage of ‘gents’ or ‘ladies’ to symbols. The general population (and the majority of transgender people) will struggle to perceive any difference but LAW understands the law firm engaged to represent Condor made the suggestion that words can be seen as more prescriptive than symbols, which was adopted by the tribunal in their recommendations. To be clear, this case is not saying wording is illegal, rather symbols may be better.

Should you wish to view Trans* Jersey’s comment on the same, you can read their article here

Trans* Jersey partners with Law At Work to offer training sessions that cover areas of the discrimination law including gender reassignment. If you are worried about how you or your employees might deal with a transgender customer, please contact Georgia Le Brocq on 01534 887088 or email to arrange for some training on this specialist area.

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