Gender reassignment claims

Discrimination because of gender reassignment under the Equality Act 2010

What is treated as gender reassignment?

A person (‘B’) is protected from discrimination by another (‘A’) if B is proposing to undergo, is undergoing or has undergone a process (or part of a process) of gender reassignment.  If this applies, B has the protected characteristic of gender reassignment and is referred to in the Equality Act 2010 as a transsexual person (see section 7).

Note:

• There is no need for B to be under medical supervision.
• There is no requirement for B to be proposing to undergo, be undergoing or to have undergone any physiological change.
•  As there is no medical model, the Act gives wide protection from less favourable treatment because of gender reassignment (e.g. to those who start to dress or behave like someone who is changing their gender or decided to live as a person of the opposite sex to the one they had at birth).
• A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.
• If the person has a gender recognition certificate under the Gender Recognition Act 2004, s/he is treated as a person of the reassigned sex.  However, there are some exceptions to this (e.g. in relation to certain competitive sports).
   

Direct discrimination:

This is where:

1. A (e.g. an employer)  treats B less favourably;
2. The treatment is because B intends to undergo, is undergoing or has undergone gender reassignment; and
3. The treatment has led to a disadvantage (e.g. non promotion). 

Note:

• This covers a person who is perceived to be proposing, is perceived to be undergoing or is perceived to have undergone gender reassignment.
• The less favourable treatment need not be because of B’s gender reassignment; it may be because of the gender reassignment of another person with whom B associates (e.g. B’s child), or because B has refused to discriminate (because of gender reassignment) against another worker.
• The less favourable treatment involves comparing B's situation with a person who is not intending to, is not undergoing and has not undergone gender reassignment.
• Generally, there is no defence to direct discrimination because of gender reassignment.  However, there are limited exceptions to this.  For example,  certain employers may be able to rely on an 'occupational requirement' defence.  Any requirement not to be a transsexual person must be central to the particular role and must be a proportionate means of achieving a legitimate aim.
• Employers should discuss with transsexual people necessary arrangements for access to toilets and changing facilities.  However, usually, employers should give transsexual people access to appropriate toilets and facilities according to the gender role in which they present.
   

Absence from work:

It is discrimination for an employer (A) to treat a person (B) less favourably because s/he is absent from work because of gender reassignment and s/he would have been treated more favourably if absent because of sickness or injury or for some other reason, and it is unreasonable for B to be treated less favourably.

For example, if a person undergoing gender reassignment is absent from work, s/he must not be treated less favourably than a person who takes time off for some other reason (e.g. sickness).

Indirect sex discrimination:

This occurs where a provision, criteria or practice (applied equally to transsexual people and those who are not transsexual people) disadvantages people who are intending to undergo, are undergoing or have undergone gender reassignment.  Such a provision, criteria or practice can be justified by the employer where it is a proportionate means of achieving a legitimate aim.

Victimisation:

It is unlawful to treat a worker unfavourably because s/he has complained of gender reassignment discrimination, brought a claim or been a witness for a complainant.

Harassment:

It is unlawful to subject a worker to unwanted conduct related to gender reassignment that (when viewed reasonably) causes that worker offence.  See Harassment.

Recent news