Gender reassignment discrimination

As an employer, it is unlawful to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.

Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination.

This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.

What is gender reassignment discrimination?

Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.

The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.

To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.

What is the law on gender reassignment discrimination?

The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised, because of one or more of the nine protected characteristics, where gender reassignment is one of these.

All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.

To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.

Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.

What employment protections do transsexual employees have?

Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:

Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
Indirect discrimination: where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.

The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.

Examples of gender reassignment discrimination

Direct gender reassignment discrimination

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.

Direct discrimination also covers the following scenarios:

Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
Discrimination by association: where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.

Indirect gender reassignment discrimination

Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.

An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.

Harassment because of gender reassignment

The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.

It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.

As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.

This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.

Victimisation because of gender reassignment

This is where someone at work is subjected to a detriment because they have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment.

A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.

What are the special protections relating to absences from work?

Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.

This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.

For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.

This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.

Can gender reassignment discrimination ever be justified?

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified, as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.

The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.

In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.

Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.

It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action.

What are the consequences of gender reassignment discrimination?

If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.

The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.

The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:

A declaration setting out the rights of the parties
An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

How can employers prevent gender reassignment discrimination?

Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.

These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.

In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.