Transgender: what the law says
Protections in the Sex Discrimination Act for transsexual people
Sex Discrimination Act
The Sex Discrimination Act 1975 makes it unlawful to discriminate on the ground of sex in employment, education and the provision of housing, goods, facilities and services.
Sex Discrimination (Gender Reassignment) Regulations
The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the Sex Discrimination Act to make it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training. These Regulations do not apply to discrimination in education or in the provision of housing, goods, facilities and services. However subsequent regulations (see below) have addressed these areas from April 2008.
In employment and vocational training, the Sex Discrimination Act protects people who are discriminated against because they:
- intend to undergo gender reassignment
- are currently undergoing gender reassignment
- have already undergone gender reassignment.
Gender reassignment is defined in the regulations as “a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process”. This means that an individual does not need to have undergone any specific treatment or surgery to be protected by the law. It is the process that matters.
The employment provisions of the SDA cover recruitment, transfer, training and promotion, access to work-related benefits, facilities and services, dismissal, and any other detriment. It is also unlawful for an employer to instruct someone else to do something discriminatory – for instance, telling an employment agency not to hire a transsexual person. Pressure to discriminate is also unlawful – for example, employees threatening not to work unless their employer dismisses someone who is undergoing gender reassignment.
Anyone who is treated less favourably by an employer or vocational training body on any of the above grounds compared with someone for whom no gender reassignment grounds exist will have a claim under the Sex Discrimination Act.
People have the right not to be treated less favourably compared to others because they have acted in good faith to assert their rights under the Sex Discrimination Act. You will have a victimisation claim if your employer treats you less favourably than another employee because you have complained about discrimination on gender reassignment grounds; for example if your employer dismisses you or does not promote you because of your complaint.
Discrimination in vocational training
There must be no unlawful discrimination against transsexual people who apply for vocational training provided by employers or training organisations, including the Training and Enterprise Councils and their suppliers (in Scotland, the Local Enterprise Companies). There must be no unlawful discrimination against you by such bodies in terminating your training. This means equal access to training on equal terms - and an equal chance to complete it.
Employer and Employee Liability
Employers can be held responsible for discriminatory acts by their employees, unless the employer can show that he or she had taken such steps as were reasonably practical, to stop the employee from doing the particular act or acts of that kind.
Employees remain individually liable for their own discriminatory acts, even where the organisation is also potentially liable.
The Sex Discrimination (Amendment of Legislation) Regulations 2008
The Sex Discrimination (Amendment of Legislation) Regulations 2008 extended the Sex Discrimination Act to make it unlawful to discriminate on grounds of gender reassignment in the provision of goods, facilities and services as well as in employment and vocational training.
Technically the regulations only apply to people who are planning to undergo, are undergoing or have undergone gender reassignment as in the previous section. However, service providers are much less likely than employers to know whether an individual is transsexual or transgender. Some people may also be mistakenly perceived to be trans. To ask would constitute harassment. Therefore it is best practice to treat all customers equally and respectfully, regardless of how they look or any perceived ambiguity in their gender.
Rights under the Gender Equality Duty
The Equality Act 2006 introduced the Gender Equality Duty, which places an obligation on public bodies to pay due regard to the need to address and eliminate the unlawful discrimination and harassment of transsexual people in employment, related fields and vocational training (including further and higher education) and in the provision of goods, facilities and services.
The definition of 'transsexual' used in the gender equality duty is the same as that in the SDA, but it is recommended as good practice that public bodies apply any provisions for transsexual people to those who define as transgender as well.
The Gender Recognition Act (GRA) gives legal recognition to transsexual people in their acquired gender.
If an application to the Gender Recognition Panel is successful, the transsexual person's gender becomes for all purposes the acquired gender and they will receive a full gender recognition certificate (GRC). The GRC allows for the creation of a modified birth certificate reflecting the holder's new gender.
In specified circumstances the GRA prohibits disclosure of the fact that someone has applied for a GRC or disclosure of someone's gender prior to the acquisition of the GRC. Such disclosure constitutes a criminal offence liable to a fine.
The privacy provisions apply in most circumstances where the information is received by someone acting in an official capacity. The exceptions are very narrowly drawn, so it should generally be assumed that if you are a employer, manager or colleague; or if you are working in any capacity for an official body or service provider, the law will apply.
Unlawful disclosure applies not only to direct word of mouth communication but also to uncontrolled access to paper or computer files. A transsexual person may consent to you disclosing the information if they decide that it is in their interests to do so. However, such consent must be explicit. It may not be assumed.
As a general rule it is best to agree what to do with information when an employee or service user informs you that they have applied for or obtained a Gender Recognition Certificate. This may often necessitate physically destroying records that reveal inappropriate information, or sealing them for use in specified exceptional cases.
Human Rights law
Last Updated: 30 Jun 2009