In the United Kingdom, gender reassignment discrimination is one of the less understood or talked about forms of discrimination across workplaces. With the coverage of high-profile celebrities like Chelsea Manning and Caitlyn Jenner, issues relating to gender reassignment are now breaking through to the public conscience.
In 2016, a report by the Women and Equalities Committee made more than 30 recommendations, asking the government to ensure equality for people who have undergone or are undergoing gender reassignment.
One such recommendation of the report was that the use of terms “transsexual” and “gender reassignment” in the Equality Act 2010 is both misleading and outdated. Instead, the report suggested the umbrella term of transgender.
What is Meant By Gender Reassignment?
Gender reassignment surgery is the medical procedure, which is used to alter a transgender person’s physical appearance, and their existing sexual characteristics, to resemble those that are usually associated with their identified gender. The procedure is part of a treatment for gender dysphoria in transgender individuals.
Gender reassignment is a personal process. Choosing to undergoing medical treatment, or being under medical supervision, is entirely up to the individual if they wish to medically change the function of their existing physical characteristics, or not. Either way, if a person wants to adopt their chosen gender identity, the transition would qualify as gender reassignment.
According to the Equality Act 2010, it is unlawful to mistreat an individual because of specific reasons, also known as “protected characteristics”. The Act recognises gender reassignment as one of the protected characteristics.
Therefore, if you are subjected to discriminatory comments or behaviour at the workplace because you identify as transgender, it counts as discrimination because of gender reassignment.
What does Transgender mean?
Somebody who identifies as transgender is someone who:
- wishes to change their gender, whether they proceed with the medical treatment or not;
- has had gender reassignment surgery;
- is currently undergoing medical treatment for gender reassignment;
- has started the medical procedure but has decided to stop it;
- has decided to adopt their chosen gender identity, without going through a medical gender reassignment;
- wants to dress as their preferred gender, either occasionally or all the time
Gender Reassignment Discrimination and Protection
The Equality Act 2010 in the UK protects any individual who decides to start or has completed a transition to adopt the gender of their choice, against discrimination.
The category of protected individuals includes someone who is not currently going through medical supervision or a transgender person who decides against undergoing any medical procedures.
Therefore, if an individual needs time off to address his or her gender reassignment issues, such as advice, counselling or surgery, their rights are protected under the Equality Act. Employers also need to practice caution and avoid treating individuals less favourably for taking such time off.
For example, if an individual takes time off for gender reassignment and their absence is counted as sick leave, it could be considered discriminatory, especially if the employer initiates disciplinary procedures against them. It would also be discriminatory for individuals to be overlooked for promotion, incentives or being made redundant, because they identify as transgender.
Types of Gender Reassignment Discrimination
Typically, there are four main types of discriminatory behaviour, which are covered in the workplace and are considered when discussing discrimination on the grounds of gender reassignment. These types are categorised as follows:
Direct discrimination is the type of discrimination, which is directed at a person because of their gender or due to their gender reassignment. Examples of direct discrimination could include;
- choosing not to employ someone;
- dismissing them unfairly from their job;
- withholding or offering significantly inadequate contractual benefits;
- withhold a promotion
Also, it is possible for employers to discriminate “by association” against an employee based on gender reassignment. For example, if an individual is denied a work position because their parent has undergone gender reassignment, then that person is said to have been affected by discrimination by association.
Further, individuals may suffer from direct discrimination based on perception. This form of discrimination is said to occur when employers and colleagues behave less favourably because of their attitudes about sex or gender reassignment, regardless of whether those perceptions are correct or not. For example, an individual may be treated less favourably based on the perceived gender of their name.
Indirect discrimination is said to occur when employers introduce policies, procedures and standard practices within the workplace that inadvertently disadvantage or favour a particular group of individuals based on gender reassignment. This type of discriminatory practices may include;
- contractual benefits;
- recruitment selection criteria;
- flexible working options;
- redundancy scoring criteria;
To make an employment tribunal claim against indirect discrimination, you must be able to show that a particular policy would affect the majority of members or all members of their specific group.
There are cases, however, when employers can justify these practices, if there is a legitimate business interest behind the disputed policy. For example, your employer may be justified in prescribing that a particular role is only for women, if it would be unsuitable for a male to perform the function of say, a support worker for teenage girls.
Harassment involves unfavourable or unwanted conduct of employers or colleagues, due to (actual or perceived) gender reassignment. Thus, an individual could be treated less favourably because they objected against, or rejected, unwanted sexual conduct from another employee. Examples of harassment may include;
- Inappropriate questions;
- Unncessary jokes;
- Excluding someone
Exposure to sexual harassment on the basis of gender reassignment is also a risk within the workplace. Such conduct may include:
- Comments about physical appearance;
- Unwanted physical contact;
- Displaying pornographic images;
- Sexual assault
Sexual harassment can be inflicted by an individual of any sex or sexual orientation. Furthermore, there are cases in which a claimant may feel uncomfortable, even if the alleged harasser has no specific intent of harassment. In such cases, an employment tribunal may consider whether it is reasonable for the claimant to feel the way they do, before proceeding to give judgement that the accused person’s actions qualify as harassment.
According to UK employment law, it is also possible for a third party to bring forth an harassment complaint, even if the behaviour is not directed towards them. For example, an individual may make a formal complaint about their co-workers making sexual advances or comments towards another staff member, if they believe that such conduct is negatively impacting the working environment of the organisation.
Victimisation is described as any disadvantage, harm or loss that an individual suffers in the workplace because of their previous involvement in a gender reassignment discrimination case. Such participation may include giving evidence in a complaint, making an allegation of discrimination, or supporting someone else’s discrimination claim.
Subsequently, the person who is being victimised may be denied opportunities, labelled as a troublemaker, excluded from events and training opportunities, or threatened with a poor reference when seeking employment elsewhere.
In the UK, it is unlawful to discriminate against an individual because of their sex or gender reassignment under the Equality Act 2010. Therefore, it is essential for employers and managers to create a conducive environment that would help recognise all forms of gender identity and expression. Furthermore, employers must lead by example on diversity and equality issues, and handle the changing needs of transgender individuals with sensitivity.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.