In 2016 a Women and Equalities Committee report made over 30 recommendations calling for government action to ensure full equality for trans people. One of the report’s recommendations was that the use of the terms ‘gender reassignment’ and ‘transexual’ in the Equality Act 2010 are outdated and misleading, something that we fully agree with. The preferred umbrella term is trans.
However, the advice and guidance on this page applies to current law and therefore uses the terms referred to in the Equality Act 2010.
We suggest employers and service providers consider the recommendations in this report when setting their trans policies. This will help to make sure they are preventing discrimination and disadvantage to people who are trans.
What the Equality Act says about gender reassignment discrimination
The Equality Act 2010 says that you must not be discriminated against because you are transsexual - that is your gender identity differs from the gender assigned to you at birth.
- For example a person who was born female decides to spend the rest of his life as a man.
In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.
To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one. You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.
The Equality Act says that you must not be discriminated against because:
- Of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination.
- Someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant. This is known as discrimination by perception.
- You are connected to a transsexual person, or someone wrongly thought to be transsexual. This is known as discrimination by association.
Inter-sex people are not explicitly protected from discrimination by the Act, but you must not be discriminated against because of your gender or perceived gender.
What is gender reassignment discrimination?
This is when you are treated differently because you are transsexual, in one of the situations that are covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.
There are some circumstances when being treated differently due to gender reassignment is lawful, explained below.
Different types of gender reassignment discrimination
There are four types of gender reassignment discrimination.
This happens when someone treats you worse than another person in a similar situation because you are transsexual.
- For example, you inform employer that you intend to spend the rest of your life living as a different gender. Your employer transfers you off your role against your wishes because they don’t want you to have client contact.
Absences from work
If you are absent from work because of gender reassignment, your employer cannot treat you worse than you would be treated if you were off:
- due to an illness or injury. For example your employer cannot pay you less than you would have received if you were off sick.
- due to some other reason. However in this case it is only discrimination if your employer is acting unreasonably. For example, if your employer would agree to a request for time off for someone to attend their child’s graduation ceremony, then it may be unreasonable to refuse you time off for part of a gender reassignment process. This would include, for example, time off for counselling.
Indirect discrimination happens when an organisation has a particular policy or way of working that puts transsexual people at a disadvantage.
Sometimes indirect gender assignment discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the discrimination. This is known as objective justification.
- For example a local health authority decides that it will not fund breast implants. As a result the health authority refuses to provide this treatment for a woman undergoing gender reassignment even though she considers it essential to make her look more feminine. The same policy is applied to all women but puts transsexuals at a greater disadvantage. The health authority may be able to justify its policy if it can prove that it has legitimate reasons.
Harassment is when someone makes you feel humiliated, offended or degraded because you are transsexual.
- For example a transsexual woman is having a drink in a pub with friends. The landlord keeps calling her ‘Sir’ and ‘he’ when serving drinks, despite her complaining about it.
Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.
This is when you are treated badly because you have made a complaint of gender reassignment related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of gender reassignment related discrimination.
- For example, a transsexual is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.
Circumstances when being treated differently due to gender reassignment is lawful
A difference in treatment may be lawful if:
- An organisation is taking positive action to encourage or develop transsexuals to participate in a role or activity in which they are under-represented or disadvantaged.
- The circumstances fall under one of the exceptions to the Act that allow organisations to provide different treatment or services.
- Competitive sports: A sports organisation restricts participation because of gender reassignment. For example, the organisers of a women’s triathlon event decide to exclude a trans woman. They think her strength gives her an unfair advantage. However, the organisers would need to be able to show this was the only way it could make the event fair for everyone.
- A service provider provides single-sex services. If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender. In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing or has undergone gender reassignment.
Last updated: 29 Jun 2017