Trans woman wins a discrimination case against Irish bank
The Equality Tribunal has awarded transgender woman Deirdre O'Byrne EUR 5,000 compensation after it ruled she had been discriminated against by AIB. In October 2010, in accordance with the declarations on her change of name of deed poll, she approached the bank to inform them of her change of name. The bank changed her name and gender on her credit card, but told her to close down her 'cashsave' account. The equality tribunal found she has been discriminated against on gender grounds, and have ordered the bank to review their policies in relation to people who change their name.
Speaking about the decision, Ms. O’Byrne said “One of the steps involved in the long, fraught and difficult process of transition is correcting the legal consequences of being registered at birth in a different gender. What should have been a simple matter of going into the bank and presenting a few documents instead turned into a 3 year battle. I hope the bank, and all other institutions, will now ensure they have simple, straightforward procedures for transgender people to easily correct the consequences of a condition we were born with”.
In her deed poll of October 2010, Ms. O’Byrne stated that she would henceforth at all times use the name Deirdre Katherine O’Byrne to identify herself. However, the name listed as the account holder on her AIB cashsave account is her birth name, which has occasionally led to difficulties for her establishing herself as the account holder. In January 2012, the bank would not accept a cheque made out to Deirdre O’Byrne marked “a/c payee only”. On 4th December 2013 - two days after the decision was made in the equality case - she experienced difficulties in establishing her identity as the account holder so that she could update the address on her account. “I’ve always wondered if the day would come where the bank would turn around and say - ‘sorry - we do not believe this money is yours’”. “But worst of all is the way the bank still uses my birth name when addressing me in their correspondence, in spite of being asked on a number of occasions to at least address me in my true name. In November 2013, they sent a letter addressed to my birth name to an address that I had just moved out of, thereby possibly outing me to my ex- andlady”.
HISTORY OF THE CASE
Shortly after she changed her name by deed poll in October 2010, and as part of the process, she approached AIB and informed them of the change. AIB changed the name and gender on her AIB credit card, but refused to change the name on her ‘cashsave’ account, and asked her to close down that account. “I was aware of other transgender people who had successfully changed the name on their AIB accounts without having to close them down. I was not going to participate in my own discrimination by complying with AIB’s request to close my account”. She queried the bank’s decision, and got no satisfactory answer. She approached the Financial Services Ombudsman, who accepted AIB’s contention that she had changed not just her name but her entire legal identity. “I do not accept the contention that I changed my identity - for the first time in my life, I am affirming my identity. I’ve always been a transgender person”. In response, she took the case to the Equality Tribunal.
She has welcomed the decision of the Equality Tribunal. “In particular, I welcome the finding that it is irrelevant whether I’ve had any particular surgeries. My gender is in my head and in my heart, and not between my legs. My genitals are not the business of anyone I bank with!”. However, the decision has not been without issues. “I have particular problem with the language of ‘the complainant is now female’ and ‘the complainant’s witness was born female, and changed to the male gender’. I haven’t changed my gender. I’m precisely the same gender I was when I was born. I’ve always been female (specifically, I’ve always been transgender female) - I just haven’t always been aware of it, and so I tried for a very long time to be a male in society. It was something that was always doomed to failure”.
“There has been a lot of talk about legal gender recognition recently, and I am deeply dismayed at some of the Government’s proposals for gender recognition. However, getting the Government to recognise your gender is only a very small part of the process. I call on the Government to ensure that all organisations and institutions are required to recognise the true identity of transgender people with the minimum amount of fuss and effort, so that no-one else has to do what I had to”.
Ms. O’Byrne’s witness in the case was a female-to-male transgender customer of AIB who successfully changed the name on his AIB account. The tribunal’s decision discussed his suitability as a “comparator” (i.e. someone treated differently than she was, and whose different treatment demonstrates discrimination). The bank contended that a correct comparator would be someone male, as I am female. The tribunal, however, stated that a correct comparator would be a cisgender female, as I am a transgender female. Specifically, the tribunal used as a comparator the category of woman who changes her name after getting married or entering into a civil partnership, and on the basis of how such women are treated by the bank the tribunal found that I was discriminated against.
“I find it interesting that my witness was deemed to not be a suitable comparator. Gender discrimination is usually about how males and females are treated differently. He is male, I am female, he received better treatment than I, and yet he was found to be unsuitable as a comparator. I note that had it been a female-to-male transgender person who was taking this case, they would apparently not have been able to use women who get married as a comparator like I did. I submit that suitable comparators for transgender people in gender discrimination cases are cisgender people of either gender, and transgender people who identify in another gender.”
The Equality Tribunal decision number for the case is DEC-S2013-015, and a scan of the decision is available at http://www.deirdreobyrne.com/decision/. It is due to be published on the Equality Tribunal web site on Monday 20th January.