Fortnum v Suffolk County Council

Summary

Ms Fortnum, a “transsexual female” (trans-identified male), worked as a care assistant for Suffolk County Council. When the mother of a female client with learning difficulties objected to intimate care being provided by a male care worker, Fortnum was taken off these duties. This was judged to be discrimination.

“The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman.”

Fortnum v Suffolk County Council is a first-instance employment-tribunal decision so is not a legal precedent, but it is is often mentioned⁠ in support of a claim that people have the right to be treated in all respects as members of the opposite sex, even where that impinges on the privacy and dignity of others.

The tribunal found that Fortum had been discriminated against by not being allowed to provide personal care to this particular vulnerable woman, even though the council argued that other duties could be allocated.

In the November 2014 ruling, a Local Government Ombudsman decision said that not providing same-sex carers can impact dignity. Dr Jane Martin said:

“Under the Equality Act 2010 the need to deliver same-sex care is an ‘objective justification’ for advertising and recruiting workers to fulfil the need. It is not enough for a provider to say ‘We cannot guarantee same sex care’. They need to demonstrate that they have made every effort to ensure the service is delivered in the way that is best for the recipient.”

Decision

Tribunal decision – Press For Change transcript

Commentary

At Legal Feminist, Naomi Cunningham argues that:

“Fortnum is a muddled and erroneous first instance decision… It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.”

Naomi Cunningham for Legal Feminist: My body, my choice: privacy, consent and compulsion in personal care