Gender reassignment is one of the nine “protected characteristics” under discrimination law, along with sex, sexual orientation, religion or belief, race etc. But there are some important differences when it comes to gender reassignment. Our fact sheet highlights some interesting and important points to remember when it comes to this often disregarded area of employment law.
How is gender reassignment defined?
Under the Equality Act 2010 a person has the protected characteristic of gender reassignment if that person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. People falling within this definition are referred to as transsexual persons in the legislation and we will follow this in the factsheet.
Is medical intervention required?
No, the Equality Act does not refer to medical intervention or supervision at all, and the Code makes it clear that it is the personal process of moving from birth gender to a preferred gender that is relevant rather than any medical process.
Do people have to have taken obvious steps towards reassignment?
No, they only need to be proposing to undergo the change to have protection. When they were drafting the legislation, the draftsmen stated that this meant merely “contemplating” doing so, and that this requires “a more definitive decision point”.
Are gender recognition certificates relevant?
The Gender Recognition Act 2004 allows transsexual people who are at least 18 years’ old to apply for legal recognition of their new gender. The decision is made by the Gender Recognition Panel, where applicants have lived under their new gender throughout the preceding 2 years and intend to continue to do so until they die. However, it is the process that is relevant in the context of the discrimination law, rather than the issuing of the certificate.
Are transvestites protected?
The intention is only to protect those who wish to live permanently in their non-birth gender. Transvestites would only be covered, therefore, if their adoption of the appearance of the opposite sex is permanent, rather than temporary, or if there was a perception that they were undergoing gender reassignment.
Can non-transsexual people claim if there is a perception that they are?
Yes, there is protection where the employer treats an individual less favourably because they perceive that they are proposing to undergo, are undergoing or have undergone gender reassignment.
Are only employees protected?
No, in the context of the workplace, a wide range of individuals are protected, including employees, contract workers, partners and office holders.
What types of discrimination are covered?
All the usual forms of discrimination are covered, such as direct discrimination, indirect discrimination, harassment and victimisation. In addition, transsexual people are protected against less favourable treatment in relation to absences from work because of gender reassignment.
Does an employee have protection because they have transsexual friends or family?
Yes, the definition of discrimination is broad enough to cover less favourable treatment because of the individual’s association with someone who is transsexual.
Does a transsexual person have the right to make their employer keep their previous gender secret?
They are potentially protected if they have been treated less favourably because the employer makes this disclosure, or because the employee refuses to make it themselves.
Can transsexuals insist on using the toilet or other single-sex facilities of their preferred gender?
A transsexual denied, say, use of female toilets could only be treated less favourably if they could establish that they should be treated as a woman. Certainly this would be the case if a gender recognition certificate has been issued, but it may also be the case before this, as the legislation does not refer to medical supervision or gender recognition. However, it is likely that it would be relevant whether the individual in question is pre or post-operative, or could have the certificate.
Can gender reassignment discrimination ever be lawful?
Yes, there are certain exceptions, for instance where there is a “genuine occupational requirement”. The occupational requirement must be “crucial to the post”, and not just one of several important factors. In the case of Lawrence v. Wills a receptionist identifying as female, was forced to identify as male by her employer. She worked in a sauna, and her employer argued that customers in a state of undress might object to the presence of a woman there, and that it was therefore a genuine occupational requirement she presented as a male. The Tribunal held that the requirement to present as male was not proportionate or crucial to the role, as employee could be referred to using a gender-neutral nickname, and modesty screens, or dress codes could be introduced, which would obviate the need for the employee to identify as male.