DEC-S2013-015

The Equality Tribunal

Equal Status Acts 2000 to 2011

DECISION NO: DEC-S2013-015

Deirdre O’Byrne

(Represented by Brian Gageby B.L. instructed by KOD Lyons)

V

AIB

(Represented by Jadel Naidoo B.L. instructed by AIB Legal Department)

File No. ES/2012/0070

Date of Issue: 2 December 2013

Keywords Equal Status Acts 2000 to 2011 – Discrimination, section 3 – Gender & Disability - section 3(2)(a) & (g)

1 Delegation under the Equal Status Acts 2000 to 2004

1.1 The complainant referred her claim against the AIB under the Equal Status Acts on 7 June 2012. On 28 January 2013 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 A written submission was received from the complainant on 7 June 2012. The respondent replied on 20 December 2012. I proceeded to a hearing on 18 June 2013 and final correspondence was received on 15 July 2013.

2 Complainant’s Submission

2.1 The complainant was born 1 July 1969 and assigned her birth name. The complainant submits that for a number of years she was aware of issues surrounding her gender identity. In recent years the complainant has undergone a difficult and challenging transition after which she was able to establish her true gender as female. Following this process, and as part of it, on 21 October 2010 the complainant changed her name by deed poll to Deirdre Katherine O’Byrne. To reflect this change, and in accordance with the declarations given in the deed poll, the complainant also changed her name on other identifying documents, including her passport. She now goes by the name Deirdre O’Byrne in all communications.

2.2 The complainant submits that she has held various bank accounts with the respondent for twenty years or more. These accounts were opened in her birth name. Shortly after executing her change of name by deed poll she went to a branch of the respondent to make them aware of the change of name. Two days later she was phoned by her own branch and was told she would have to close her ‘cashsave’ account in her birth name and open a new account in her new name.

2.3 The complainant submits that she has been treated differently from other people in comparable situations. She is aware of other transgender people who have changed name by deed poll and have not been required to close down their accounts. The complainant wrote to the respondent on a number of occasions requesting them to change the name on her account and sought reasons why she was being treated differently from acquaintances who had changed their name by deed poll.

2.4 The respondent agreed to provide the complainant with a credit card in her new name and amended her account accordingly. However, they have limited the complainant’s use of her ‘cashsave’ account and called on her to close the account. Also, the respondent has continued to correspond with complainant using her old name which caused her considerable distress. It is accepted the respondent apologised for one incident.

2.5 The complainant submits that the respondent had given a number of different reasons for insisting that the complainant close her ‘cashsave’ account. By letter date 18 January 2011 stated that when a customer changes their name by deed poll the customer is required to close their account “to ensure the Bank maintains a record of the accounts in the previous name of the account holder”. After the complainant made a complaint to the Financial Services Ombudsman the respondent, in a letter dated 22 March 2012 told the complainant that the first five digits of the account were held uniquely for her birth name and that this account number no longer represented the complainant. In response to the complaint brought to the Financial Services Ombudsman the respondent stated the reason was that the complainant had changed her identity entirely and they could not now satisfy itself of the identity requirements for the ‘cashsave’ account. The respondent also differentiates the treatment of others who change their names “solely on the basis of a change of name” on the basis that the complainant has “changed her legal identity”. The respondent outlined a different procedure for those changing name after marriage where the respondent will facilitate the change of name on the account.

2.6 The complainant submits that as someone who is transgender she has been treated differently than another person in a comparable situation. She further submits that the discrimination ground of gender protects transgender persons from sex discrimination. She contends that such an approach was approved by the European Courts of Justice in P v S and Cornwall county Council (Case C-13/9) and that this was recognised by the Equality Tribunal in Hannon v First Direct Logistics Limited (DEC-E2011-066), in which the ground of disability was also recognised.

2.7 The complainant submits that transgender is a general term for people whose gender identity differs from the sex assigned to them at birth. Transgender people go through a transition over varying periods of time and in different ways and this period is often known as “transition”. Therefore it cannot be said that there exists a particular stage when a person has changed their gender from one to the other. For the complainant this resulted in her affirming her true gender and cannot be viewed as a change in identity. Therefore it is ill founded for the respondent to state that the complainant has changed her legal identity, a term unknown in law. However, if the respondent is identifying the complainant by her gender alone then this amounts to discrimination.

3. RESPONDENT

3.1 The respondent submits that the complaint has already referred the same complaint to the Financial Service Ombudsman who found that the complaint was not substantiated. The legislation provides that the Financial Services Ombudsman can look into claims of discrimination. As such they contend that the exact same matter has already been dealt with.

3.2 The respondent submits that this is a complaint on the ground of gender, therefore as the respondent is now female the appropriate comparator must be male.

3.3 The respondent submits that for the complainant to establish a claim on the grounds of disability she must establish that she was treated less favourably than a person without a disability or a different disability.

3.4 The respondent submits that a person who changes their gender changes their identity. Their policy is that all individuals who change their name by deed poll must close their existing accounts and open new accounts to ensure:

• “that a record of accounts in the previous name is still maintained on the Respondent’s systems to ensure a comprehensive audit trail;
• Each individual has a customer number line and the Respondent’s system requires that all accounts on this number line are held in the same name and they will share the same sorting code and the same first five digits of the account number. In order to open an account name in the Complainant’s name the Respondent could only take this action by opening a new account on a new number line;
• The Respondent has obligations under Anti Money Laundering legislation to ensure compliance with establishing identity requirements;
• The Respondent can comply with Court Orders or other requests for account information which relate to the customer’s previous name”

3.5 The respondent submits that their current information technology system for recoding the name of an account holder does not allow a record of a previous name to be maintained in the case of a change to a customer’s first name and surname.

3.6 The respondent does permit changes of surname for a married individual or an individual who has entered a civil partnership without the requirement for the customer’s existing bank account to be closed. Such a customer changes their surname and maintains their birth surname. They may choose to revert back to their birth surname at any time. The respondent’s position is that this is different to a customer who has changed their name by Deed Poll and renounces, relinquishes and abandons the use of their former name and their legal identity changes to the new name.

4. Jurisdiction

The respondent contends that I have no jurisdiction to investigate this claim as the complainant took the same complaint to the Financial Services Ombudsman under the Central Bank and Financial Services Authority Act, 2004. They point out that the Financial Services Ombudsman has jurisdiction to make a determination in relation to discriminatory conduct. However, this claim is taken under the Employment Status Acts 2000 to 2011 and there is no provision under the Employment Status Acts which would stop me from carrying out my investigation and issuing this decision. I therefore conclude that I do have jurisdiction to investigate this claim.

5. Findings and Conclusions

5.1 I have to decide if the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) of the Equal Status Acts. 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.

5.2 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 now female. The respondent contends that as the complainant is now female the correct comparator is male. The complainant cited a claim taken under the Employment Equality Acts: Decision No. DEC-E2011-066 Hannon v First Direct Logistics Limited which 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) [1996].” 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 C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions [2006] 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.

5.3 The complainant did not give evidence that she has undergone gender reassignment surgery but stated that she has undergone a difficult and challenging transition after which she was able to establish her true identity as female. In the circumstances where the complainant has changed her name by deed poll, been issued with a passport in her new name and gender and carries on her day-to-day life as a female I consider that the approach taken in the Richards case is appropriate to this case. Therefore, I conclude that the correct comparator is a woman who has not undergone gender reassignment, in other words has always been a woman.

5.4 The respondent submits that their policy regarding changes of name by deed poll is that all accounts in the first name must be closed and new accounts opened in the new name. They state this is because the person has changed their identity and the requirement that people must open accounts in the new name is to ensure compliance with security requirements. Following the hearing the respondent submitted a copy of their written policy in this matter. The policy is undated so it is unclear whether it was in operation in October 2010 when the complainant approached the bank. Despite my request they were unable to provide any information relating to other customers who had changed their name by deed poll. The complainant provided a witness who had changed their name by deed poll in May 2010 and had gone into a branch of the respondent and, on production of the appropriate documents, been able to change the name on their account. This person was also transgender and had been born a woman and changed to the male gender. Given my reliance on a comparator who is a woman who has not undergone gender reassignment I have to accept that this person is not an appropriate comparator. However, it does indicate to me the inconsistency of the respondent’s policy in this matter.

5.5 The appropriate comparator in this case is a woman who has not undergone gender reassignment, and more specifically is a woman who has changed their name. Given the apparent inconsistency in the respondent’s policy of changes of name by deed poll I must look at the category of woman who gets married or has entered a civil partnership and change their name. The respondent’s policy to this group is that they do permit these women to change the name on their existing bank account and there is no obligation to close their accounts and open new accounts in the new names. The respondent contends this is not in contradiction with their policy in relation to people who change their name by deed poll as women who get married or enter into a civil partnership do not change their legal identity.

5.6 I have examined the respondent’s reasons for treating people who change their name by deed poll differently than those who change their name through marriage or entering into a civil partnership. Both change their surname and I accept the first name of those who have married or entered into a civil partnership is not changed. However, I can found no fundamental difference between the two groups that would not allow the two groups to be treated in the same way that would allow the respondent to satisfy their specified requirements in paragraph 3.4.

5.7 Section 5(1) provides that: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”. The burden of proof is set out in Section 38A which provides that: "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."

5.8 I conclude that the complainant was treated differently than the appropriate comparator on the grounds of gender and I find, therefore, that the respondent has failed to rebut the prima facie case of discriminatory treatment on the gender ground raised by the complainant when the respondent refused to allow her change the name on her bank account.

5.9 The complainant also submitted that she suffers from gender dysphoria and the respondent’s treatment took no account of this. However, the complainant adduced no evidence that the disability was exacerbated as a result of her treatment by the respondent. Further, I accept the evidence of the respondent that they were unaware that the complainant was suffering from any disability. I therefore conclude that the complainant is unable to establish a prima case of discrimination on the grounds of disability.

6. Decision

6.1 Accordingly I find that:

• the complainant was 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 discriminated against on the disability ground pursuant to sections 3(1) and 3(2)(g) of the Equal Status Acts.

6.2 Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the discrimination;

or

(b) an order that a person or persons specified in the order take a course of action which is so specified.”

6.3 I order the respondent to pay to the complainant the sum of €5,000 (five thousand euro) to compensate her for the effects of the discriminatory treatment experienced by her.

6.4 I also make an order under section 27(1)(b) of the Acts, that the respondent review their policies in relation all persons who wish to change the name on their account(s) and to amend these policies to ensure compliance with the Equal Status Acts 2000 – 2012.

____________________

Hugh Lonsdale

Equality Officer

2 December 2013

Footnotes:

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