Last Updated on 20.6.23 by Amanda Isherwood
The human race is diverse and the UK takes pride in our recognition and protection of this diversity. Central to this ethos is the Equality Act 2010 (EqA), a piece of legislative fairness that forbids discrimination in relation to a list of nine ‘protected characteristics’. Today, we’re going to shine a spotlight on one of these characteristics – gender reassignment.
Unfolding the Meaning of Gender Reassignment
Under section 7(1) of the EqA gender reassignment is defined as “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”. In layman’s terms, a person planning to transition, currently transitioning or having already transitioned, falls under the umbrella of gender reassignment.
Interestingly, the EqA 2010 allows for transition without the need for medical intervention. This is a progressive shift from the preceding Sex Discrimination Act 1975, which mandated ‘medical supervision’ for an individual to fall within the protected characteristic of gender reassignment. Nevertheless, it’s key to underline that under the EqA 2010, a person must at least propose to undergo gender reassignment to be entitled to protection.
The Four Pillars of Protection
Under the mantle of the EqA 2010, protection against discrimination is upheld through four fundamental pillars:
- Direct Discrimination: This occurs when a person, due to gender reassignment, is treated less favourably than others. Gender reassignment is expressly protected from direct discrimination in relation to absences from work because of gender reassignment.
- Indirect Discrimination: This involves a provision, criterion or practice (“PCP”) that, although applicable to all employees, places individuals undergoing gender reassignment at a particular disadvantage compared to others. However, an employer may be able to demonstrate that the PCP is a proportionate means of achieving a legitimate aim and therefore justified.
- Harassment: Harassment related to gender reassignment involves unwanted conduct that violates an individual’s dignity or creates an intimidating, hostile, or offensive environment.
- Victimisation: Victimisation occurs where a person subjects another person to a detriment because they have done, or they suspect that person of doing or intending to do, a protected act. For example, if a trans woman makes a complaint that she is suffering harassment in the workplace and is then dismissed by her employer – she would have a case for victimisation.
These protective measures extend to all stages of the employment relationship, from the recruitment phase right through to dismissal.
Exceptions to the Rule
While discrimination on the grounds of gender reassignment is largely illegal, the law recognises a few exceptions:
- If the employment pertains to an organised religion, an employer may consider it an occupational requirement for an employee not to be transsexual, so as to conform to the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
- In certain circumstances, the armed forces may stipulate that an employee is not transsexual.
- A general requirement that an employee is not transsexual might be considered, given the nature or context of the work.
These exceptions highlight a complex area of law, and it’s paramount that employers ensure that a requirement not to be a transsexual person is absolutely critical to the role and not merely one of several important factors.
If you find yourself in a situation where you’ve been unfairly treated at work due to issues related to gender reassignment, please don’t hesitate to reach out to our employment solicitors.