Transgender UK Law and Legal – Changes to the law on preventing illegal working:
short guidance for United Kingdom employers
Amendments to document checks under section 8 of the Asylum and Immigration Act 1996.
Coming into force on 1 May 2004 April 2004
Changes to the law on preventing illegal working
[Abstract] Full Text PDF
Implications for transgender people
Changes in Home Office regulations for employers, coming into effect at the end of this month, may have serious implications for many transsexual people, at least until they are able to obtain corrected birth certificates.
The regulations are part of steps being taken to clamp down on illegal working in the UK and are explained in detail in a new leaflet, available here in Adobe .PDF [Click Here].
Under section 8 of the Asylum and Immigration Act 1996, all UK employers have to carry out certain basic checks to ensure that the people they recruit have a bona-fide right to work in the UK. The checks have always been designed to be simple to carry out and basically involve asking to see documentary proof of citizenship or a work permit. Provided employers have followed the guidelines they can claim a statutory defense against prosecution for employing anyone who later turns out to be working illegally.
Changes in the evidence requirements from May 1st 2004, coupled with an increased obligation to carry out checks across the board, have serious implications for UK trans people though.
The new regulations require employers to arm themselves with one of two kinds of evidence in order to protect themselves. Furthermore, in order to protect themselves against possible accusations of race discrimination, employers are strongly exhorted to carry out these checks on ALL recruits, not just those who “look foreign”.
The simplest form of evidence which an employer can accept is a passport. If you have a FULL passport which describes you in your correct gender role then there is no problem; that is all the employer will need to see.
If you haven’t got a FULL passport, however, then the alternative form of ID which an employer will need o see is a combination of two documents. One of those two will always be a formal proof of your
National Insurance Number (NINo) – such as a P45, P60, NINo card or tax office correspondence. The second accompanying piece of evidence will be a FULL birth certificate (i.e. containing the details of at least one parent). Needless to say, this will be the problem area for many people until the Gender Recognition Bill is in effect and their papers have been corrected.
For many trans people there may not be an overall problem of course – so long as you have a passport.
However, it has been passport agency practice in the past to only issue visitors passports to people prior to surgery. There may therefore be many people, especially in transition, who need to rely on the second form of evidence and will therefore be compulsorily embarassed by the obligation to produce a birth certificate in their old identity. (It is also questionable whether that old birth certificate can then be proved to be “theirs” too. Whatever the case, the new regulation creates just one more hurdle for trans people to negotiate in order to obtain work that they are legally entitled to do.
These provisions have emerged out of the blue — needless to say without consultation. We will therefore take up the issues with Ministers and officials in the coming days and weeks to see what can be done. In the meantime, if you have a passport or can afford to get one, then these provisions shouldn’t be a problem.
If anyone encounters problems because they are changing jobs and cannot obtain a full passport then please let us know your circumstances at firstname.lastname@example.org .We’ll need to know, for instance, why you can’t get a full passport and why you are planning to start a new job at this time.
Employers may not all rush to implement the provisions of course. Nevertheless, they may do later and want to retrospectively complete their records. The implications of this policy change could therefore be massive.
Citation: Press For Change, Home Office, UK