The Equality Tribunal
Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2014-020
(Represented by Anthony Lowry B.L. instructed by KOD Lyons)
(Represented by Siobhan Phelan B.L. instructed by Mason Hayes & Curran)
File No. ES/2012/0050
Date of Issue: 24 November 2014
Keywords Equal Status Acts 2000 to 2011 – Discrimination - Harassment – Gender- section 3(2)(a)
1 Delegation under the Equal Status Acts 2000 to 2011
1.1 The complainant referred her claim against the Hospital under the Equal Status Acts on 16 April 2012. On 8 April 2014 in accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011, the Director then delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts, on which date the investigation under section 25 commenced.
1.2 Written submissions were received from both sides and I proceeded to a hearing which was held over two days on 2 July and 10 July 2014 and final correspondence was received on 16 July 2014.
2 Complainant’s Submission
2.1 The complainant had previously undergone gender re-assignment surgery. She attended a Consultant’s clinic at the Hospital on 19 December 2011 due to a complaint arising from that surgery. She was told to undress, then given a preliminary physical examination and asked a number of questions by a junior female doctor. The Consultant then came in and began her examination/consultation. The complainant submits that the Consultant questioned the junior doctor and from the beginning referred to the complainant by the wrong gender. The complainant pointed this out to the Consultant but she completely ignored the complainant’s request to be referred to by the correct gender. The Consultant was rude and by the end of the consultation the junior doctor became confused and also referred to the complainant by the wrong gender.
2.2 The complainant submits that the Consultant referred to “his vagina” and described the complainant’s genital area as “a bit vague”. She was rude throughout the consultation and did not apologise.
2.3 When the Consultant left the room the junior doctor apologised repeatedly for the Consultant’s behaviour and for her own inaccuracies. The complainant told the junior doctor that she would not be returning to the Consultant’s clinic.
2.4 She found the experience very traumatic and became depressed and introverted. On 16 January 2012 she wrote to the respondent setting out her complaint. She told the respondent she would not be returning to the Consultant’s clinic and would not be filling out the prescription the Consultant had provided at the consultation. The respondent’s Patient Liaison Officer replied on 8 February 2012 and reported on their investigation. They noted that the Consultant had referred to the complainant by the incorrect gender and the junior doctor (Registrar) had also referred to the complainant by the incorrect gender. The Consultant offered an unreserved apology, which had not been offered at the time of the incident. The report suggested it was an isolated verbal error, which the complainant submits it was not. The complainant was dissatisfied with the minimisation of her complaint and by the indirect manner in which the Consultant had apologised to her.
2.5 The complainant submits that following this consultation she was diagnosed with a carcinoma of the bladder. The Consultant’s manner of her consultation did not contribute to the prompt diagnosis and treatment of her illness.
2.6 The complainant submits that her treatment during the consultation amounts to discrimination and harassment on the grounds of her gender as there was no recognition of gender reassignment. The complainant relies on CJEU case C-423/04 Richards  ECR I-0000 as precedent that there is a right not to be discriminated against on the grounds of sex and held further in this case that this prohibition also applies to discrimination arising from gender reassignment of the person concerned. The complainant also cites the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR 447 in which the Court concluded that transgender persons are entitled to full legal recognition of gender reassignment.
3. Respondent’s Submission
3.1 The respondent submits that the complaint is a transsexual woman. Her GP made a referral for dryness and soreness of the genital area, specifically the reconstructed vagina following the complainant’s gender re-assignment surgery. On 19 December 2011 the complainant attended an out-patient clinic which was conducted by the Consultant and a Senior Dermatology Registrar.
3.2 The Registrar carried out an initial assessment of the complainant, formulated a diagnosis and management plan before requesting the Consultant to review the findings. The Registrar referred to the complainant by the correct gender during this initial consultation.
3.3 The respondent submits that the medical chart available to the Consultant contained the complainant’s medical history and also included a male name. The respondent confirms that during the physical examination when the Consultant was discussing the complainant’s symptoms with the Registrar she said “his vagina”. The complainant objected to the use of an incorrect personal pronoun and the Consultant immediately apologised. Later on in the consultation the Registrar made a similar error when referring to the complainant as “he” and immediately apologised for her error. The respondent denies that the Consultant ‘continually’ referred to the complainant by the incorrect gender, she made the mistake on one occasion only. The respondent submits that the Consultant did not say the complainant’s genital area was a ‘bit vague’ but said that there was ‘vague erythema’.
3.4 The respondent denies that the Consultant acted in a rude manner towards the complainant during the remainder of the consultation. It is submitted that the complainant became agitated following the incident.
3.5 The respondent submits that on 8 February 2012 they responded to the complaint submitted by the complainant about the consultation and set out the results of the investigation they carried out into the incident. They set out the findings and offered the complainant an unreserved apology for the upset and distress caused.
3.6 The respondent submits that under section 38A(1) of the Equal Status Acts the complainant has failed to establish a prima facie case of discrimination. Without prejudice to that contention the respondent relies on section 16(2)(a) which states that “treating a person differently does not constitute discrimination where the person is so treated solely in the exercise of a clinical judgement in connection with the diagnosis of illness or his or her medical treatment”. The respondent denies that the complainant was subjected to harassment.
3.7 The registrar has subsequently left the respondent’s employment but they submitted a statement she had made. She confirmed she was an acting Senior Registrar for the Consultant at the time of the incident. She confirmed she carried out the initial part of the consultation and referred to the complainant in the correct gender. Later, in the presence of the Consultant she referred to the complainant as ‘he’ and apologised immediately. This occurred approximately 5-10 minutes after the Consultant had referred to the complainant by the wrong gender, for which she immediately apologised. The Registrar states that it is not true that the consultant repeatedly referred to the complainant by the wrong gender. She points out that the history of gender re-assignment surgery was relevant to the presenting complaint and the gender issue may have become momentarily confused.
4. Findings and Conclusions
4.1 I have to decide if the complainant was discriminated against and if she was harassed in accordance with the Equal Status Acts on the grounds of gender. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the gender ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2) provides that: “as between any two persons, the discriminatory grounds ...are ...(a) that one is male and the other is female (the “gender ground”). The complainant is transgender and is female. It is accepted that the Consultant and the Registrar referred to the complainant in the wrong gender. The respondent contends this only occurred once by each and that they both apologised immediately. The complainant accepts the Registrar referred to her by the wrong gender on one occasion and that she apologised immediately. Indeed the Registrar is not identified by the complainant as part of the discrimination. The complainant contends that the Consultant discriminated against her and harassed her by making a number of references to her in the wrong gender, despite the complainant pointing out the mistake, and also that the Consultant made no apology at the time. She contends that the Consultant was rude throughout the consultation.
4.3 In the Equality Tribunal Decision No. DEC-E2011-066 Hannon v First Direct Logistics Limited the Equality Officer stated in paragraph 4.3: “It is well established in law that the gender ground protects transgender persons from sex discrimination, that is, discrimination arising essentially if not exclusively on the sex of the person concerned. Such an approach was approved by the European Courts of Justice in P v S and Cornwall County Council (CJEU Case C-13/94) .” The CJEU in that case stated that “he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong to before undergoing gender reassignment”. However in a later case, relied on by the complainant, C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions  the CJEU stated “the scope of Directive 79/7¹ cannot thus be confined simply to discriminations based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of that directive is also such as to apply to discrimination arising from the gender reassignment of the person concerned.” and held that cases involving discrimination against persons on grounds of gender reassignment must be analysed based on a comparison not between men and women, but rather between the transsexual and a person of the same sex whose gender is not the result of gender reassignment.
4.4 I cannot envisage circumstances where a female who had not undergone gender reassignment would be referred to by the male gender other than by a slip of the tongue. In this case it is accepted that the complainant was referred to in the male gender at least once each by both the Consultant and the Registrar. The reason given by the Consultant was a possible reference to the complainant’s previous gender in her medical chart and by the Registrar was a possible confusion because she was being examined for a condition that arose directly from her gender reassignment surgery.
4.5 The burden of proof is set out in Section 38A (1) which provides:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
In circumstances where the two possible explanations for references to the complainant’s incorrect gender arise from her gender reassignment surgery I find that the complainant has established a prima facie case of discrimination on the grounds of her gender and the onus now shifts to the respondent to rebut the inference of discrimination.
4.6 The respondent contends that the references were accidental and one-off by both the Consultant and the Registrar and therefore do not amount to discrimination. The respondent carried out an extensive search of the complainant’s medical records and confirmed that all labels in the records had been changed to her new name and gender apart from one piece of correspondence in 2007 which had been overlooked. I therefore do not accept that any reference to the complainant in the wrong gender was made because of her medical records.
4.7 The complainant, the Consultant and the Registrar all gave direct evidence at the hearing and were cross examined in relation to what happened during the consultation. Much of the evidence given was the same. The obvious difference is in relation to the way the Consultant addressed the complainant, how often this occurred and her manner during her part of the consultation. Having considered all the evidence given I come to the conclusion that the manner of the Consultant may have appeared cold to the complainant and I am not convinced that the Consultant apologised to the complainant. On the other hand I am not convinced that the reference to the wrong gender by the consultant was made more than once. The complainant had a discussion with the receptionist before the consultation about the name on her records. She then underwent what must have been a very difficult consultation. She reacted strongly when the Consultant referred to her by the wrong gender and was further upset when the Consultant did not offer an immediate and fulsome apology. It appears that the Consultant was not aware at the time of how upset the complainant was by her wrong reference and she carried on with the consultation. The Registrar’s wrong reference seems to have occurred as she was aware of a very tense situation and had become nervous.
4.8 Having assessed all the evidence I do not find the behaviour of the Consultant and the Registrar to amount to discrimination and I find that the respondent has successfully rebutted the inference of discrimination on the grounds of gender.
4.9 The next matter I have to consider is whether the complainant was harassed contrary to Section 11 which states:
“11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (‘‘the victim’’) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) A person (‘‘the responsible person’’) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place. ………
(5) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
The complainant submits that the consultant’s behaviour amounts to harassment. The complainant was clearly upset by the behaviour of the consultant in making a reference to the incorrect gender, however I am not satisfied that what occurred during the consultation amounted to a hostile degrading or offensive environment, within the meaning of the Equal Status Acts. In the circumstances I am not satisfied that the complainant has established a prima facie case of harassment.
Accordingly I find that:
- the complainant was not discriminated against on the gender ground pursuant to sections 3(1) and 3(2)(a) of the Equal Status Acts, and
- the complainant was not harassed on the gender ground pursuant to sections 11 of the Equal Status Acts.
24 November 2014
¹ Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security