30th October 2023
Can ‘Deadnaming’ A Transgender Person Lead To A Successful Claim In Gender Reassignment Discrimination?
Yes, found the employment tribunal in Miss AB v Royal Borough of Kingston upon Thames on 11 September 2023. A trans woman has successfully claimed direct discrimination on the grounds of gender reassignment. The employment tribunal found that deadnaming the worker (AB) amounted to less favourable treatment and was because of the claimant’s protected characteristic. AB has been awarded £25,423 in compensation including £21,000 for injury to feelings plus interest.
What is Deadnaming?
The term Deadnaming is to call a transgender person by their birth name when they have changed their name as part of their gender transition.
The unfavourable treatment must be ‘because of’ the protected characteristic. Whether an act or omission amounts to less favourable treatment is an objective question for the tribunal to decide. The claimant must demonstrate that such differential treatment was unfavourable.
The claimant, AB, notified the employer that she intended to transition eight months before she did so. AB transitioned with effect from 1 July 2020. Kingston council failed to update the Claimant’s name in respect of pension records, the door pass, CRM Highways Complaints System, RBK/Sutton staff directory on Google, and her vehicle pass. It took the council around two years to update the information with the correct name despite AB’s efforts. AB told the tribunal that she received no support and that the council had failed in its duty of care. The employment panel, chaired by employment Judge Fiona McLaren, ruled that deadnaming had an impact on AB and caused distress.
After AB’s transition, a dispute took place between her and her managers. AB accused her managers of singling her out and implying she was not competent. AB’s bosses accused her of throwing a ‘hissy fit’ and the tribunal agreed that her bosses had used derogatory and unprofessional language towards AB.
In another incident, the claimant found a Post-it note stuck to her locker with her deadname crossed out and her post-transition name written on. The tribunal found that this was not rectified until April 2022 and there was no investigation into who had done this. It was found that AB was given no support by her employer, with AB stating that ‘since my transition, I have been singled out on a witch hunt’. The tribunal found that the council had been dismissive towards AB and that the lack of any formal apology from the council added to the claimant’s distress.
No Policy In Place
Ms Bailey, a senior HR business partner at the council, accepted that the council had not handled the claimant’s transition well and the council did not have a policy in place which aligned with the legislation in force at the date of the claimant’s transition. The tribunal found that the respondent had failed to incorporate the Equality Act’s legal obligations into its policies and did not provide appropriate training to staff. However, the tribunal found that the respondent’s failure to implement the Equalities Act in its policy was not targeted at the claimant or because of her protected characteristic.
This case highlights the importance of having up-to-date policies in place and training staff efficiently as to the importance and the implications of not following policies correctly and deadnaming their employees after they have transitioned.