The Employment Equality (Amendment) Bill 2013 (“The 2013 Bill”) published by the Oireachtas on 23 February 2013 proposes to amend four various categories of the Employment Equality Acts 1998-2011.
Firstly the 2013 Bill proposes to amend Section 2 of the Employment Equality Act 1998 by inserting a new definition of “gender identity” which is set out below as follows:
“gender identity means each persons deeply felt internal and individual experience of gender, which may or may not correspond with sex assigned at birth, including the person’s sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experiences of gender, including dress, speech and mannerism”.
Secondly the 2013 Bill proposes amending Section 2(1) of the Employment Equality Act 1998 (as amended by the Civil Partnership & Certain Rights & Obligations of Cohabitants Act 2010) by substituting the following definition of “civil status”
“civil status means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved or being or having been a cohabitant or qualified cohabitant within the meaning of Section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010”.
It is currently unlawful in Ireland to discriminate on nine grounds which include age, gender, race, religion, marital status, family status, sexual orientation, disability and membership of the travelling community. However the 2013 Bill proposes to increase the current nine grounds of discrimination to ten by amending Section 6 of the proposed legislation to insert after Section 2(i) the following subsection (j):
“that one is a person whose gender identity differs to that of the legal gender status of that person”.
The final proposal to the 2013 Bill is to amend Section 37 of the Employment Equality Act 1998 by inserting a new subsection (7) and (8)
“(7) Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify or permit any form of discrimination as defined in subsection (1) to justify or permit any form of discrimination as defined in section 6(2) or to allow any action to be taken against any employee or potential employee on the basis that employee’s or potential employee’s gender identity, civil status, or sexual orientation”
“(8) provides that “Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify more favourable treatment of or in respect of one employee or potential employee over another employee on the basis of his or her civil status, gender identity or sexual orientation”.
As Section 37 is currently drafted, the legislation permits discrimination by a religious, educational or medical institution where it is reasonable to do so in order to avoid undermining a particular religious ethos. The proposal mentioned above sets out that the way Section 37 currently stands cannot be relied upon.
If the 2013 Bill is implemented, employers will be required to update Employee Handbooks. Discrimination and Harassment Policies will also need to be amended to include the new gender identity definition.
By Marc Fitzgibbon, Partner