In this blog we are looking specifically at the protected characteristic of gender reassignment under the Equality Act 2010.

Let’s explore:

Gender reassignment is one of the 9 protected characteristics that are included in the Equality Act 2010.

Under the Act, Gender reassignment means:

A person has the protected characteristic of gender reassignment if the 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.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

 

This characteristic is protected in all areas of employment and with Higher Education. There is no requirement for any medical procedures to have taken place just having the idea that you want to change genders is enough to have protection. A person will also be protected if they start to transition but decide not to continue.

If a person participates in cross dressing but has no intention to be a different gender, then they would not be protected in the Equality Act. However, if they are discriminated against by perception of being transgender then they will be protected.

There are a number of different ways a person can be discriminated against:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

 

Direct discrimination is when a person is treated less favourably due to their gender reassignment. For example, being treated worse for going to reassignment doctors’ appointments than general doctors’ appointments. To prove this, a person would compare themself to the treatment of someone who identifies as their birth gender. This can also be done by association. This means that a person can be discriminated against because they are associated with someone undergoing gender reassignment such as a friend or family member. A person could also be discriminated against by perception if they are perceived to be undergoing gender reassignment. There is no way of proving objective justification (good reason) for direct gender reassignment discrimination.

Indirect discrimination is when a policy or practice puts a person at a disadvantage because of their gender reassignment. The rule will apply equally to all staff however it’ll would put a person at a disadvantage if they are meet the gender reassignment criteria. This can be allowed if the employer can prove that there is ‘objective justification’ for the policy being in place.

Discrimination could also happen due to harassment where a person is made to feel humiliated and degraded. This is when a person feels as though someone’s dignity has been violated and that there has been a hostile environment created. This doesn’t need to directed at the subject person, it can just be the general attitude of the company. This can also be experienced from a third party such as a customer. The employer will be liable if this occurs on more than 2 occasions, and they make no intervention.

In Ms R Taylor v Jaguar Land Rover Ltd 2018 there were numerous examples of when a transsexual experienced discrimination by harassment. Comments included:

• ‘Are you going to have your bits chopped off?’
• Referred to as ‘it’
• ‘Saw you as the top half didn’t match the bottom half’
• Told they nearly turned someone TERF (trans-exclusionary radical feminists)

Overall, there were 22 confirmed allegations of harassment that occurred in this case.

Finally, discrimination can occur by victimisation. This is when a person is treated unequally because of making a complaint or supporting a complaint against discrimination. This is known as a ‘protected act’ and there is no need to look at a comparator.

If discrimination is found in the workplace, then the employer and employee who did this would be liable. This will only be accepted if there is an occupational requirement meaning its necessary for the job for example religious positions may not accept people who are transgender. It will also be accepted if its for a positive action. For example, trying to get certain minority groups more recognised in a certain job type.

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