LEGAL CHALLENGES TO GENDERED DRESS CODES IN THE UK: AN OVERVIEW
By
David/Katie Solomon (*written May 2007)
WEAR ARE WE NOW?
Cross-dressing is not against the law in the UK. However, it is nevertheless considered perfectly lawful for employers and education authorities to compel employees and students to conform to gendered dress codes and uniforms. Compelling males to look traditionally masculine and females to look traditionally feminine is upheld as not amounting to illegal sexism under UK sex discrimination law as long as this is demanded equally of both legitimised genders.
According to S.1(1)(a) of the 1975 UK Sex Discrimination Act, direct sex discrimination only occurs when an individual (judged to either a man or a woman) is treated less favourably than a person of the ‘opposite’ sex and the person (man or woman) making such a complaint must be able to demonstrate they s/he has suffered some form of detriment resulting from this less favourable treatment.
So where does this leave transgendered/third gendered people? Since, the bi-polar gender system does not legally recognize any other genders outside of male and female then, analogous to Victorian lesbians, it is assumed that such people don’t exist. Therefore, being forced to conform to gendered dress codes is judged not to be harmful to anyone because no sexism has occurred so long as such sartorial requirements and restrictions have been applied to ‘both’ legitimised genders equally.
In the following piece I wish to put forward the case that mutually exclusive bi-polar gendered dress codes are, on the contrary, both fundamentally sexist and deeply harmful, not only to the unrecognised trans/third gender but also to wo/mankind as a whole.
I will attempt to dispel current legal wisdom through taking a look at some examples of attempts to legally challenge gendered dress codes that have taken place since the Sex Discrimination Act came into UK law following 1975. As you can probably tell, I’m no employment law lawyer but I’ve done my level best to look for holes in established legal precedence on these matters and I actually think that I’ve found some (!) I would like to dedicate this article to anyone who has had to struggle, is struggling, or will be struggling against or under gendered dress codes whether those individuals are male, female or transgendered. To this end, I am offering this piece as a contribution to aid those who intend to challenge authorities that intend to impose such gendered dress codes upon them. Hopefully, this piece will help someone, somewhere.
WHO'S WEARING THE TROUSERS?
The first dress code case brought under the Sex Discrimination Act (SDA) was Schmidt v. Austicks Books Ltd. 1977. Ms Schmidt, a female employee of a bookshop brought legal proceedings against her employer, Austicks Books Ltd, which had a dress code policy that insisted female workers wear skirts and overalls and not trousers. Schmidt argued that this contravened the SDA as male employees were allowed to wear trousers and weren’t compelled to wear overalls. The tribunal dismissed Schmidt’s complaint of sex discrimination maintaining that Austicks Books’ dress code was not sexist. It concluded that Schmidt, as a female, was not being subjected to less favourable treatment or detriment on the grounds of her sex because there were ‘equally’ equivalent rules for male workers, an example being that male employees were not allowed to wear tee shirts.
It was conventional, rather than sexist, for women to be expected to wear skirts to work as a pose to trousers.
And despite fashion and the growing popularity of trousers, it was, indeed, to be some time before women were allowed to wear them to work.
In 1999, Debbie Sheen and Lynn McKay, two female security guards working for Eurostar, were sent home one day for wearing trousers to work. They prepared to take their case to an industrial tribunal with the support of their union, the GMB. The GMB’s regional secretary commenting on Eurostar’s insistence that females employees wear skirts exclaimed that ‘the management are crackers’. In the meantime, Eurostar allowed Sheen and McKay to wear trousers to work for a month whilst the company conducted a female-only survey of staff and passengers that asked whether or not they approved of women wearing trousers. When the survey revealed that 50 per cent of female staff and passengers thought that women should be allowed to wear trousers to work and a further 30 per cent didn’t care whether women wore trousers or skirts, Eurostar backed down and allowed women the choice of wearing either. They had the support of Glenda Jackson, at the time running for London mayor, who called this:
“a victory for equality which sends a signal to all firms that the modern working woman will not be pushed around by Victorian male managers”.
Labour MP Jeremy Corbin similarly condemned Eurostar’s attempt to ban their female employees from wearing trousers as “crazy and discriminatory.”
The following year, the discrimination claims of Jo Hale, a 14-year-old pupil at Whickham School in Gateshead also yielded successful results. The school’s uniform policy did not allow female pupils to wear trousers, even during the cold, winter months. In February 2000, following a two-year long struggle she won the right for all pupils to have the option of choosing to wear either skirts or trousers. This also opened up the choice of wearing skirts to the boys, but ‘they would be mad to do so’, whimsically remarked an education authority spokesman at the time.
Or maybe they would be transgendered…
SKIRTING AROUND
In the case of Paul Kara v. Hackney Council, the applicant brought legal proceedings against his employers because they wouldn’t allow him to wear a skirt to work. In 1994 Paul Kara was employed as a Training Administrator within the Social Services Department of Hackney Council. Identifying as a male-to-female transgendered person, he frequently wore items of ‘women’s’ clothing to work – such as blouses, halter tops, tights etc. and had done so right from the beginning of his employment with Hackney Council from 1986 onwards. On two separate occasions he wore a skirt to work. On the second of these occasions, his managers informed him that his cross-dressing had become ‘an issue’ within the department and he was subsequently instructed to desist from wearing ‘female’ clothing.
This instruction prompted Paul Kara to bring legal proceedings against his employers at Hackney Council in the belief that they had contravened the 1975 UK Sex Discrimination Act by allowing female members of staff the choice of wearing either trousers or skirts whilst at the same time refusing him, as a male/transgendered employee, the same right. He also claimed that he was being prevented from practising his religion, which he described as ‘berdache Shaman’, an indigenous American faith of which male-to-female cross-dressing forms an inseparable part.
In January 1995, the industrial tribunal dismissed his case ruling in favour of his employers who maintained that demanding a dress code that distinguishes between male and female employees does not amount to sex discrimination as long as an equal standard of smartness and restrictions are required from both sexes. A further challenge to this verdict by the plaintiff at an employment appeal tribunal in March 1995 returned the same verdict and following this he was advised that any subsequent appeal to the Court of Appeal would most likely be futile, as it would almost certainly replicate exactly the same result.
Undeterred, Paul Kara decided to take his case to the European Commission for Human Rights (ECHR). In addition to the previous claims of sex discrimination, religious intolerance and interference with private life that he had initially brought against Hackney Council, this time he also argued that being prevented from expressing himself through wearing ‘female’ clothing violated Article 10 of the Human Rights Act which provides for freedom of expression, including the liberty to impart ideas without hindrance from the State.
Unfortunately, the ECHR upheld the decisions of the previous UK tribunals on this case and added that in instances such as these it is justifiable to revoke Article 10’s right to freedom of expression on the grounds that doing so would be to protect the rights and freedoms of others. The ECHR agreed with Hackney Council’s belief that having a visibly male-to-female transgendered employee would harm the image of their Social Services Department in the eyes of it’s users – the general public – and would also bring them into disrepute with the wide-range of organisations and companies (both government and private sector) that they had contact with. From this, the ECHR, deduced that permitting credence to an obviously transgendered employee visible to the public, would, in turn, also bring harm upon the rights of the users of Hackney Council’s services by causing a loss of confidence in the Council’s competency.
This theory inevitably rests upon the assumption that there is something specifically ‘wrong’ and/or ‘unethical’, ridiculous and embarrassing with being transgendered, and that this conclusion makes it both moral and necessary to appease, or even pander, to any potential prejudices that prospective consumers may hold if it is gauged likely to improve services or increase profit.
Indeed, the ECHR insisted that no idea or philosophical/political position was being suppressed by banning an employee from wearing ‘gender inappropriate’ clothes because transgenderism is not even considered to exist in an all-encompassing, mutually exclusive bi-polar gender system. As far as the law is concerned, each and every one of us is either a man or a woman. The totality of gender absolutism reigns supreme in 21st century Europe.
The idea of such suppression of individualism as being justified if for the ‘good of the people’ or in the interests of ‘public safety’ runs through many legal decisions that come down on the side of gendered dress codes. The ‘customer is always right’ approach to consumer relations consistently translates into a ‘let’s persuade the court that this is what the customer wants’ attitude on the part of employers who seek to defend their genderist dress codes whenever they are challenged by those on the receiving end.
HAIR 'EM, SCARE 'EM!
Such was the rationale behind the 1991 Smith v Safeways verdict. Nicholas Andrew Smith, a male delicatessen worker at a Safeways supermarket was told by bosses that if he didn’t get his long hair cut short he would be sacked. Smith contested that this amounted to sex discrimination, as his longhaired female co-workers were allowed to wear their hair as long as they liked. Once again, the tribunal came down on the side of the employer ruling that sex differentiation in workplace dress codes does not necessarily amount to sex discrimination. Compelling a male to have his long hair cut short but allowing a female to wear her hair any length she likes was not, as far as the tribunal were concerned, equivalent to less favourable treatment of one sex over another. Although difficult to see how allowing one person a choice but not allowing the other person a choice can be seen as even-handed, the ‘excuse’ that the tribunal made for supermarket giant Safeways was that they were merely intending to project conventional societal gender norms in order to please and encourage the consumer. Poor old Safeways livelihood would be at stake if they were to do otherwise as this might cause them to lose custom from any prospective shopper who might happen to be transphobic (!)
However, surely such grooming requirements make inroads into a person’s private life outside of the workplace. After all, you can’t take your hair on and off (not unless it’s a wig!) So, that violates the Human Rights Act clause on right to respect concerning private life for a start.
At the time, a spokesperson for Safeways applauded the decision of the tribunal as a victory for common sense, dismissing Smith’s claim as trivial and adding ‘this isn’t what the Sex Discrimination Act was intended to be all about!’
However, some four years’ later, Chair of the Equal Opportunities Commission, Julie Mellor obviously didn’t agree – at least in relation to the Jo Hale ‘trousers’ case and was quoted in the Mail (Feb.2000) as stating:
“It’s vital that we encourage young people not to be limited by old-fashioned, stereotypical ideas on men and women’s roles in society, and dress codes play an important part in how we see ourselves.”
Yet over a year later, in September 2001, male employee Paul Fuller lost his sex discrimination case after being sacked by his employers for refusing to abide by their company dress code and cut off his ponytail (Fuller v. Mastercare Service & Distribution 24th Sept.’01).
In fact, to date (2007) there are a large number of companies, organisations and educational establishments that require their male employees to wear their hair in a short back and sides style in order to project a traditionally ‘masculine’ image. Airlines, the armed forces, the Police and various schools throughout the UK are just a few examples of organisations that have short hair dress code policies for males that spring to mind. And is it merely coincidence that there aren’t any male newsreaders or members of parliament with long hair, for instance?
Even so, the current legality of gendered dress codes in the UK leaves a great deal of room for confusion. In January 2000, Mark Pell whose interview for a job as a hotel barperson was terminated when he refused to cut his hair short in the event of being offered the position won over £500 in damages when a Sheffield employment tribunal ruled that he had been discriminated against under UK sex discrimination law.
HOW'S IT HANGING?
There also seems to be similar confusion over whether or not forcing male employees to wear neckties amounts to sex discrimination. Again, everything depends on whether or not equivalent levels of smartness are required by and enforced upon female employees – ie smart clothes, no jeans or trainers etc.
In Matthew Thompson’s case (Thompson v Department for Work & Pensions March 2003), an industrial tribunal ruled that he, and the rest of his male colleagues, had been made victim to sex discrimination by the DWP’s sexist dress code policy. Thompson maintained that his employer’s introduced a strict shirts and ties policy for male employees whilst allowing their female co-workers to turn up for work in tee-shirts, jeans, crop tops etc. Therefore, the tribunal held that since the DWP didn’t demand an equivalent level of smartness and dress restriction for female workers then it was clearly the case, in this instance, that their gendered dress code policy was one-sided and this lack of even-handedness resulted in women employees being subject to more favourable treatment in comparison to their male colleagues.
However, when the DWP appealed against this decision in November 2003, although the employment appeal tribunal once again upheld Thompson’s claim of sex discrimination, they went on to emphasize that forcing male employees to wear neckties was only sexist when an equivalent level of smartness was likewise demanded of their female colleagues.
In any case, the DWP backed down and allowed male workers the freedom of not having to wear ties on strict condition that the other 7,000 sex discrimination applications made by their male employees with regard to this issue were immediately dropped (!)
Mark Caldicott, a Prison Officer at HMP Exeter lost his claim of sex discrimination (March 2003), which he had brought against his employers, the Prison Service, who had ordered him to wear a tie as part of his uniform even though female officers didn’t have to wear one. It was pointed out that female prison officers were also required to wear a smart uniform in order to maintain an equal level of professional appearance. The fact that women officers didn’t wear ties like the male officers wasn’t, according to the tribunal, a sex discrimination issue, as having different uniforms for male and females does not necessarily equal sexism.
VEILED MISOGYNY
Equal sexism…there’s a contradiction in terms. During last summer’s heat wave (July 2006) male workers were still cooped up in offices across the length and breadth of the UK, sweltering with those cloth phalluses hanging around their necks, in the midst of critical level three health warning weather conditions. Ditch the ties and tights, urged the TUC reps, but forcing employees to endure intense discomfort or even risk their health is purely legal under UK employment law as long as everyone can be proved in a court of law to be suffering equally. Nevertheless, a poll by YouGov for employment law consultancy Croner found that 55 per cent of the people surveyed believed that women workers ‘get away’ with more casual clothing in the workplace than their male colleagues, especially summertime.
Intriguing too, that the law sees fit to condemn and in some cases ban Muslim women from wearing a veil at school or in the workplace, adding piously that enforced wearing of the veil demonstrates how sexist other cultures, societies and countries are in comparison to (for want of a better word) the ‘West’. This ‘justification’ for such rulings is reiterated even in cases where the employee or student has actually chosen to wear a veil. Yet, isn’t forcing men and transgendered people to wear neckties also sexist? Or does this reveal another instance of prejudice in which anything ‘western’ (ie. neckties for males) is seen to be good and progressive whilst anything ‘eastern’ (ie veils for females) is seen to be bad and retrogressive?
TAKE IT LIKE A MAN?
As far skirting the issue is concerned, the trend in workplace dress codes does seem to be very anti male-to-female and very pro-female-to-male cross-dressing. It looks like trousers trump skirts every time folks!
Only the other week, the newspapers were reporting that a new study by Professor Carrie Paechter of Goldsmiths, University of London recommended that schoolgirls should actually be forced to wear trousers and trainers rather than skirts and ‘women’s’ shoes. Trousers and trainers are more practicably suited to physical exercise, argued the study. The findings (funded by the Economic & Social Research Council) concluded that compelling female pupils to wear trousers and trainers would have the effect of encouraging them to participate more in playground games and sports, thereby helping to improve the physical health and mental confidence of female children.
Fair enough, as well as being more practicably suited to certain tasks, trousers can also be warmer in winter and in some circumstances are a safer alternative to skirts too. Let’s not forget that women had to fight long and hard for the right to wear the trousers. If other genders want the same, we’re going to have to put in at least equally as much effort.
FREEDOM FROM GENDERIST DRESS CODE TYRANNY!
Furthermore, wouldn’t it be nice if children of all genders had the choice of either trousers or skirts? I’m sure it would certainly make the lives of children with identity issues a lot easier. Yet skirts for males or any gender other than female aren’t anyway near being accepted by society in the same way that trousers are now considered conventional attire for females. Can you imagine, for instance, vote-hungry politicians rallying around to lend support to a male or male-to-female transperson’s struggle for the right to wear a skirt to work? Or would such public figures want to disassociate themselves from anything that smacked of men dressing in women’s clothing?
Herein may lie a much more insidious reason for the authoritarian bias against items traditionally regarded as women’s clothing. The residue from those centuries long and deeply ingrained, unspoken assumptions of sexism may well be holding sway with regard to this phenomenon. Simply put, one of the main tenets of female oppression is, and has been for so long, that men are more likely to be taken more seriously than women. Masculine values are judged to be superior to feminine values. Not only does traditional male chauvinism see female input as frivolous but also the ‘threat’ of feminine influence has often been regarded as dangerous, even to the point of being evil. To add on top of all this, the idea that women’s clothing and appearance is much more sexualised than essentially functionally-orientated men’s wear is to recognise that a male-to-female transgendered person who may appear sexually arousing to a male hits a raw-nerve in a patriarchal, hetero-sexist society.
By
David/Katie Solomon (*written May 2007)
WEAR ARE WE NOW?
Cross-dressing is not against the law in the UK. However, it is nevertheless considered perfectly lawful for employers and education authorities to compel employees and students to conform to gendered dress codes and uniforms. Compelling males to look traditionally masculine and females to look traditionally feminine is upheld as not amounting to illegal sexism under UK sex discrimination law as long as this is demanded equally of both legitimised genders.
According to S.1(1)(a) of the 1975 UK Sex Discrimination Act, direct sex discrimination only occurs when an individual (judged to either a man or a woman) is treated less favourably than a person of the ‘opposite’ sex and the person (man or woman) making such a complaint must be able to demonstrate they s/he has suffered some form of detriment resulting from this less favourable treatment.
So where does this leave transgendered/third gendered people? Since, the bi-polar gender system does not legally recognize any other genders outside of male and female then, analogous to Victorian lesbians, it is assumed that such people don’t exist. Therefore, being forced to conform to gendered dress codes is judged not to be harmful to anyone because no sexism has occurred so long as such sartorial requirements and restrictions have been applied to ‘both’ legitimised genders equally.
In the following piece I wish to put forward the case that mutually exclusive bi-polar gendered dress codes are, on the contrary, both fundamentally sexist and deeply harmful, not only to the unrecognised trans/third gender but also to wo/mankind as a whole.
I will attempt to dispel current legal wisdom through taking a look at some examples of attempts to legally challenge gendered dress codes that have taken place since the Sex Discrimination Act came into UK law following 1975. As you can probably tell, I’m no employment law lawyer but I’ve done my level best to look for holes in established legal precedence on these matters and I actually think that I’ve found some (!) I would like to dedicate this article to anyone who has had to struggle, is struggling, or will be struggling against or under gendered dress codes whether those individuals are male, female or transgendered. To this end, I am offering this piece as a contribution to aid those who intend to challenge authorities that intend to impose such gendered dress codes upon them. Hopefully, this piece will help someone, somewhere.
WHO'S WEARING THE TROUSERS?
The first dress code case brought under the Sex Discrimination Act (SDA) was Schmidt v. Austicks Books Ltd. 1977. Ms Schmidt, a female employee of a bookshop brought legal proceedings against her employer, Austicks Books Ltd, which had a dress code policy that insisted female workers wear skirts and overalls and not trousers. Schmidt argued that this contravened the SDA as male employees were allowed to wear trousers and weren’t compelled to wear overalls. The tribunal dismissed Schmidt’s complaint of sex discrimination maintaining that Austicks Books’ dress code was not sexist. It concluded that Schmidt, as a female, was not being subjected to less favourable treatment or detriment on the grounds of her sex because there were ‘equally’ equivalent rules for male workers, an example being that male employees were not allowed to wear tee shirts.
It was conventional, rather than sexist, for women to be expected to wear skirts to work as a pose to trousers.
And despite fashion and the growing popularity of trousers, it was, indeed, to be some time before women were allowed to wear them to work.
In 1999, Debbie Sheen and Lynn McKay, two female security guards working for Eurostar, were sent home one day for wearing trousers to work. They prepared to take their case to an industrial tribunal with the support of their union, the GMB. The GMB’s regional secretary commenting on Eurostar’s insistence that females employees wear skirts exclaimed that ‘the management are crackers’. In the meantime, Eurostar allowed Sheen and McKay to wear trousers to work for a month whilst the company conducted a female-only survey of staff and passengers that asked whether or not they approved of women wearing trousers. When the survey revealed that 50 per cent of female staff and passengers thought that women should be allowed to wear trousers to work and a further 30 per cent didn’t care whether women wore trousers or skirts, Eurostar backed down and allowed women the choice of wearing either. They had the support of Glenda Jackson, at the time running for London mayor, who called this:
“a victory for equality which sends a signal to all firms that the modern working woman will not be pushed around by Victorian male managers”.
Labour MP Jeremy Corbin similarly condemned Eurostar’s attempt to ban their female employees from wearing trousers as “crazy and discriminatory.”
The following year, the discrimination claims of Jo Hale, a 14-year-old pupil at Whickham School in Gateshead also yielded successful results. The school’s uniform policy did not allow female pupils to wear trousers, even during the cold, winter months. In February 2000, following a two-year long struggle she won the right for all pupils to have the option of choosing to wear either skirts or trousers. This also opened up the choice of wearing skirts to the boys, but ‘they would be mad to do so’, whimsically remarked an education authority spokesman at the time.
Or maybe they would be transgendered…
SKIRTING AROUND
In the case of Paul Kara v. Hackney Council, the applicant brought legal proceedings against his employers because they wouldn’t allow him to wear a skirt to work. In 1994 Paul Kara was employed as a Training Administrator within the Social Services Department of Hackney Council. Identifying as a male-to-female transgendered person, he frequently wore items of ‘women’s’ clothing to work – such as blouses, halter tops, tights etc. and had done so right from the beginning of his employment with Hackney Council from 1986 onwards. On two separate occasions he wore a skirt to work. On the second of these occasions, his managers informed him that his cross-dressing had become ‘an issue’ within the department and he was subsequently instructed to desist from wearing ‘female’ clothing.
This instruction prompted Paul Kara to bring legal proceedings against his employers at Hackney Council in the belief that they had contravened the 1975 UK Sex Discrimination Act by allowing female members of staff the choice of wearing either trousers or skirts whilst at the same time refusing him, as a male/transgendered employee, the same right. He also claimed that he was being prevented from practising his religion, which he described as ‘berdache Shaman’, an indigenous American faith of which male-to-female cross-dressing forms an inseparable part.
In January 1995, the industrial tribunal dismissed his case ruling in favour of his employers who maintained that demanding a dress code that distinguishes between male and female employees does not amount to sex discrimination as long as an equal standard of smartness and restrictions are required from both sexes. A further challenge to this verdict by the plaintiff at an employment appeal tribunal in March 1995 returned the same verdict and following this he was advised that any subsequent appeal to the Court of Appeal would most likely be futile, as it would almost certainly replicate exactly the same result.
Undeterred, Paul Kara decided to take his case to the European Commission for Human Rights (ECHR). In addition to the previous claims of sex discrimination, religious intolerance and interference with private life that he had initially brought against Hackney Council, this time he also argued that being prevented from expressing himself through wearing ‘female’ clothing violated Article 10 of the Human Rights Act which provides for freedom of expression, including the liberty to impart ideas without hindrance from the State.
Unfortunately, the ECHR upheld the decisions of the previous UK tribunals on this case and added that in instances such as these it is justifiable to revoke Article 10’s right to freedom of expression on the grounds that doing so would be to protect the rights and freedoms of others. The ECHR agreed with Hackney Council’s belief that having a visibly male-to-female transgendered employee would harm the image of their Social Services Department in the eyes of it’s users – the general public – and would also bring them into disrepute with the wide-range of organisations and companies (both government and private sector) that they had contact with. From this, the ECHR, deduced that permitting credence to an obviously transgendered employee visible to the public, would, in turn, also bring harm upon the rights of the users of Hackney Council’s services by causing a loss of confidence in the Council’s competency.
This theory inevitably rests upon the assumption that there is something specifically ‘wrong’ and/or ‘unethical’, ridiculous and embarrassing with being transgendered, and that this conclusion makes it both moral and necessary to appease, or even pander, to any potential prejudices that prospective consumers may hold if it is gauged likely to improve services or increase profit.
Indeed, the ECHR insisted that no idea or philosophical/political position was being suppressed by banning an employee from wearing ‘gender inappropriate’ clothes because transgenderism is not even considered to exist in an all-encompassing, mutually exclusive bi-polar gender system. As far as the law is concerned, each and every one of us is either a man or a woman. The totality of gender absolutism reigns supreme in 21st century Europe.
The idea of such suppression of individualism as being justified if for the ‘good of the people’ or in the interests of ‘public safety’ runs through many legal decisions that come down on the side of gendered dress codes. The ‘customer is always right’ approach to consumer relations consistently translates into a ‘let’s persuade the court that this is what the customer wants’ attitude on the part of employers who seek to defend their genderist dress codes whenever they are challenged by those on the receiving end.
HAIR 'EM, SCARE 'EM!
Such was the rationale behind the 1991 Smith v Safeways verdict. Nicholas Andrew Smith, a male delicatessen worker at a Safeways supermarket was told by bosses that if he didn’t get his long hair cut short he would be sacked. Smith contested that this amounted to sex discrimination, as his longhaired female co-workers were allowed to wear their hair as long as they liked. Once again, the tribunal came down on the side of the employer ruling that sex differentiation in workplace dress codes does not necessarily amount to sex discrimination. Compelling a male to have his long hair cut short but allowing a female to wear her hair any length she likes was not, as far as the tribunal were concerned, equivalent to less favourable treatment of one sex over another. Although difficult to see how allowing one person a choice but not allowing the other person a choice can be seen as even-handed, the ‘excuse’ that the tribunal made for supermarket giant Safeways was that they were merely intending to project conventional societal gender norms in order to please and encourage the consumer. Poor old Safeways livelihood would be at stake if they were to do otherwise as this might cause them to lose custom from any prospective shopper who might happen to be transphobic (!)
However, surely such grooming requirements make inroads into a person’s private life outside of the workplace. After all, you can’t take your hair on and off (not unless it’s a wig!) So, that violates the Human Rights Act clause on right to respect concerning private life for a start.
At the time, a spokesperson for Safeways applauded the decision of the tribunal as a victory for common sense, dismissing Smith’s claim as trivial and adding ‘this isn’t what the Sex Discrimination Act was intended to be all about!’
However, some four years’ later, Chair of the Equal Opportunities Commission, Julie Mellor obviously didn’t agree – at least in relation to the Jo Hale ‘trousers’ case and was quoted in the Mail (Feb.2000) as stating:
“It’s vital that we encourage young people not to be limited by old-fashioned, stereotypical ideas on men and women’s roles in society, and dress codes play an important part in how we see ourselves.”
Yet over a year later, in September 2001, male employee Paul Fuller lost his sex discrimination case after being sacked by his employers for refusing to abide by their company dress code and cut off his ponytail (Fuller v. Mastercare Service & Distribution 24th Sept.’01).
In fact, to date (2007) there are a large number of companies, organisations and educational establishments that require their male employees to wear their hair in a short back and sides style in order to project a traditionally ‘masculine’ image. Airlines, the armed forces, the Police and various schools throughout the UK are just a few examples of organisations that have short hair dress code policies for males that spring to mind. And is it merely coincidence that there aren’t any male newsreaders or members of parliament with long hair, for instance?
Even so, the current legality of gendered dress codes in the UK leaves a great deal of room for confusion. In January 2000, Mark Pell whose interview for a job as a hotel barperson was terminated when he refused to cut his hair short in the event of being offered the position won over £500 in damages when a Sheffield employment tribunal ruled that he had been discriminated against under UK sex discrimination law.
HOW'S IT HANGING?
There also seems to be similar confusion over whether or not forcing male employees to wear neckties amounts to sex discrimination. Again, everything depends on whether or not equivalent levels of smartness are required by and enforced upon female employees – ie smart clothes, no jeans or trainers etc.
In Matthew Thompson’s case (Thompson v Department for Work & Pensions March 2003), an industrial tribunal ruled that he, and the rest of his male colleagues, had been made victim to sex discrimination by the DWP’s sexist dress code policy. Thompson maintained that his employer’s introduced a strict shirts and ties policy for male employees whilst allowing their female co-workers to turn up for work in tee-shirts, jeans, crop tops etc. Therefore, the tribunal held that since the DWP didn’t demand an equivalent level of smartness and dress restriction for female workers then it was clearly the case, in this instance, that their gendered dress code policy was one-sided and this lack of even-handedness resulted in women employees being subject to more favourable treatment in comparison to their male colleagues.
However, when the DWP appealed against this decision in November 2003, although the employment appeal tribunal once again upheld Thompson’s claim of sex discrimination, they went on to emphasize that forcing male employees to wear neckties was only sexist when an equivalent level of smartness was likewise demanded of their female colleagues.
In any case, the DWP backed down and allowed male workers the freedom of not having to wear ties on strict condition that the other 7,000 sex discrimination applications made by their male employees with regard to this issue were immediately dropped (!)
Mark Caldicott, a Prison Officer at HMP Exeter lost his claim of sex discrimination (March 2003), which he had brought against his employers, the Prison Service, who had ordered him to wear a tie as part of his uniform even though female officers didn’t have to wear one. It was pointed out that female prison officers were also required to wear a smart uniform in order to maintain an equal level of professional appearance. The fact that women officers didn’t wear ties like the male officers wasn’t, according to the tribunal, a sex discrimination issue, as having different uniforms for male and females does not necessarily equal sexism.
VEILED MISOGYNY
Equal sexism…there’s a contradiction in terms. During last summer’s heat wave (July 2006) male workers were still cooped up in offices across the length and breadth of the UK, sweltering with those cloth phalluses hanging around their necks, in the midst of critical level three health warning weather conditions. Ditch the ties and tights, urged the TUC reps, but forcing employees to endure intense discomfort or even risk their health is purely legal under UK employment law as long as everyone can be proved in a court of law to be suffering equally. Nevertheless, a poll by YouGov for employment law consultancy Croner found that 55 per cent of the people surveyed believed that women workers ‘get away’ with more casual clothing in the workplace than their male colleagues, especially summertime.
Intriguing too, that the law sees fit to condemn and in some cases ban Muslim women from wearing a veil at school or in the workplace, adding piously that enforced wearing of the veil demonstrates how sexist other cultures, societies and countries are in comparison to (for want of a better word) the ‘West’. This ‘justification’ for such rulings is reiterated even in cases where the employee or student has actually chosen to wear a veil. Yet, isn’t forcing men and transgendered people to wear neckties also sexist? Or does this reveal another instance of prejudice in which anything ‘western’ (ie. neckties for males) is seen to be good and progressive whilst anything ‘eastern’ (ie veils for females) is seen to be bad and retrogressive?
TAKE IT LIKE A MAN?
As far skirting the issue is concerned, the trend in workplace dress codes does seem to be very anti male-to-female and very pro-female-to-male cross-dressing. It looks like trousers trump skirts every time folks!
Only the other week, the newspapers were reporting that a new study by Professor Carrie Paechter of Goldsmiths, University of London recommended that schoolgirls should actually be forced to wear trousers and trainers rather than skirts and ‘women’s’ shoes. Trousers and trainers are more practicably suited to physical exercise, argued the study. The findings (funded by the Economic & Social Research Council) concluded that compelling female pupils to wear trousers and trainers would have the effect of encouraging them to participate more in playground games and sports, thereby helping to improve the physical health and mental confidence of female children.
Fair enough, as well as being more practicably suited to certain tasks, trousers can also be warmer in winter and in some circumstances are a safer alternative to skirts too. Let’s not forget that women had to fight long and hard for the right to wear the trousers. If other genders want the same, we’re going to have to put in at least equally as much effort.
FREEDOM FROM GENDERIST DRESS CODE TYRANNY!
Furthermore, wouldn’t it be nice if children of all genders had the choice of either trousers or skirts? I’m sure it would certainly make the lives of children with identity issues a lot easier. Yet skirts for males or any gender other than female aren’t anyway near being accepted by society in the same way that trousers are now considered conventional attire for females. Can you imagine, for instance, vote-hungry politicians rallying around to lend support to a male or male-to-female transperson’s struggle for the right to wear a skirt to work? Or would such public figures want to disassociate themselves from anything that smacked of men dressing in women’s clothing?
Herein may lie a much more insidious reason for the authoritarian bias against items traditionally regarded as women’s clothing. The residue from those centuries long and deeply ingrained, unspoken assumptions of sexism may well be holding sway with regard to this phenomenon. Simply put, one of the main tenets of female oppression is, and has been for so long, that men are more likely to be taken more seriously than women. Masculine values are judged to be superior to feminine values. Not only does traditional male chauvinism see female input as frivolous but also the ‘threat’ of feminine influence has often been regarded as dangerous, even to the point of being evil. To add on top of all this, the idea that women’s clothing and appearance is much more sexualised than essentially functionally-orientated men’s wear is to recognise that a male-to-female transgendered person who may appear sexually arousing to a male hits a raw-nerve in a patriarchal, hetero-sexist society.