Abstract
The media hype in 2015 surrounding the former Olympic athlete Bruce Jenner’s gender transition to become “Caitlyn” has put renewed focus on the issue of trans-individuals and gender reassignment. Unlike Caitlyn, however, many transsexual individuals need to function within and face an office environment every day, where employers and co-workers are not necessarily accommodating or tolerant. Workplace discrimination against transsexual employees, based on their altering or altered appearance due to gender reassignment, is a prevalent concern in places of employment across the globe, and South Africa is no exception. Employers and co-workers’ subconscious appearance preferences seem to filter into employment decisions, policies and practices, causing trans-employees to suffer severe prejudice. Against the backdrop of case law and legislative developments in foreign jurisdictions as well as locally, this article assesses the formal protection afforded to trans-employees in South African workplaces. It is argued that, apart from the existing protection against sex-based and gender-based unfair discrimination, trans-employees should also be explicitly afforded formal protection against unfair discrimination on the ground of appearance before, during and after gender reassignment. The study concludes with concrete proposals to remedy the situation and contributes to a more tolerant and effective employment realm, irrespective of appearance.
Highlights
The legal consideration of appearance prejudice in employment has gained considerable momentum in recent years, despite having been a problem for many decades
Against the backdrop of case law and legislative developments in foreign jurisdictions as well as locally, this article assesses the formal protection afforded to transemployees in South African workplaces
The study concludes with concrete proposals to remedy the situation and contributes to a more tolerant and effective employment realm, irrespective of appearance
Summary
The media hype in 2015 surrounding the former Olympic athlete Bruce Jenner’s gender transition to become “Caitlyn” has put renewed focus on the issue of transindividuals and gender reassignment. Workplace discrimination against transsexual employees, based on their altering or altered appearance due to gender reassignment, is a prevalent concern in places of employment across the globe, and South Africa is no exception. “People changed lots of other personal things all the time They dyed their hair and dieted themselves to near death. They took steroids to build muscles and got breast implants and nose jobs so they’d resemble their favourite movie stars. They changed names and majors and jobs and husbands and wives. Why was gender the one sacred thing we weren’t supposed to change? Who made that rule?”
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