There’s more than the law – when gender reassignment and religion clash

A little while ago I was asked by a client which operated in a high security environment to solve an interesting legal conundrum. All staff entering into a certain area had to pass thorough a metal detector and a proportion of those be subjected to a random physical search, consisting of a pat down. Male staff members were patted down by male guards and females by female guards.

One of the female staff members had discovered that one of the female guards had previously undergone gender reassignment surgery and been born a male. The staff member was strongly religious and objected to the guard patting her down because, according to the staff member, the guard was still a man in God’s eyes and she was not allowed to be touched by a man to whom she was not married.

The client faced a choice. They could ask the guard to step aside when this female staff member came on and left her shift, so that another female guard (one born a female) took over. The problem with that was that the gender reassigned guard was now legally a woman and could be subjected to an unlawful disadvantage by reason of her gender reassignment by being asked to step aside purely on the basis of her gender reassignment.

The other choice was to tell the staff member she had to put up with the gender reassigned guard or face disciplinary action on the basis of “gender reassignment” discrimination. In that case, of course, there would be a risk of a religious discrimination claim from the staff member.

My legal analysis of the issue was that the terms of the staff member’s employment were clear – she had to submit to a physical search where required, so long as she was searched by a woman – and the guard was legally a woman.

However, I was aware that the staff member’s views were genuinely held, and I felt that a more pragmatic solution should be sought than attempting to force her to comply on the basis of the strict legal position. As the guard and the staff member both worked flexible shifts, HR agreed to ensure that the staff member did not start or end her shift while the guard was on duty. The staff member was told this, but was asked not to discuss the solution with anyone. The guard was not told of the arrangement.

Some may say that it may have been not quite wholly pukka not to tell the guard of the arrangement. However, in reality, the guard was not being disadvantaged, and the staff member was not being forced to undergo an experience she found distressing from the point of view of her faith.

Sometimes, the most obvious legal route is not always the best route. I am not advocating for a moment deliberately adopting unlawful practices, but HR practitioners and employment lawyers do need to work together to find a pragmatic solution to problems. There is usually more than one way to skin a cat!