Gender reassignment protected characteristic

Under the Equality Act 2010 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“.

The Equality Act Statutory Codes of Practice make clear that you don’t need to have spoken to a doctor and you don’t need to take hormones or have any surgery. You don’t need to have a gender recognition certificate (GRC). It’s enough to have proposed, for example, that you intend to change your name or title (Ms/Mx/Mr) or the pronouns you use (She/They/He).

In September 2020, the Employment Tribunal ruled in Taylor v Jaguar Land Rover Limited that the protected characteristic of gender reassignment includes people who identify as non-binary or gender fluid.

Additionally, the Equality Act 2010 covers situations where a person is subjected to gender reassignment discrimination because they are perceived as trans even though they are not actually a trans person, and situations where a person is discriminated against because of their association with a trans friend or family member.

What the Equality Act says is unlawful

Direct discrimination

Direct discrimination is when someone is treated less favourably than others because of a protected characteristic.

Some examples of gender reassignment direct discrimination:

• Sarah is an trans woman who applies to work as a pupil support assistant. Her application is rejected because the school fears some parents will object to a trans woman working with their children.
• John is a trans man who seeks counselling for distress about a family bereavement. The counsellor regards gender reassignment hormones and surgeries as ‘self-mutilation’ and says that she will only provide counselling if John agrees to explore stopping transitioning.

Indirect discrimination

Indirect discrimination is when a rule or policy or way of doing things has a worse impact on people with a protected characteristic than those without, where this cannot be objectively justified.

An example of gender reassignment indirect discrimination:

• A university has a blanket ban on changing its record of awards. It therefore refuses to agree to a request from a trans person to change their record and provide a new certificate in their new name. This has a worse impact on the trans person than on people who change their name through marriage because it forces the trans person to reveal their gender reassignment history when providing proof of their academic qualifications to prospective employers.

Harassment

Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment.

Some examples of gender reassignment harassment:

• Jo has told their colleagues at work that they are a non-binary person. One of their colleagues starts making comments that non-binary people are “attention-seekers” and “snowflakes”. They sneer at Jo and say “my pronouns are ‘f*ck your identity'” when Jo asks to be referred to using the pronoun ‘they’.
• Alice is a trans woman who is admitted to hospital with appendicitis. One of the nurses repeatedly calls Alice “Mr” and “Sir” with a smirk and refers to Alice as “that man pretending to be a woman” when talking to colleagues and other patients.
• Mary’s colleagues don’t know that she has a trans child. On the staff room notice board in her workplace, one of her colleague starts pinning up flyers stating “puberty-blockers are child abuse”, “trans ideology is homophobic misogyny” and “stop transing young lesbians”. Her colleague regularly talks loudly in the staff room about how delusional it is for anyone to think they can change their sex and that society should stop indulging such nonsense.
• Andrew is a trans man who has chosen to tell his line manager in confidence that he transitioned a few years ago. He has not told his other colleagues. One day, when he disagrees with a colleague’s suggestion in a team meeting, his colleague mocks him by asking “Are you on your period?” A couple of weeks later another colleague expresses disbelief when he refers to starting a new relationship and asks “How does that work? How do you have sex?” Andrew’s line manager has outed Andrew as trans by gossiping to other staff.

Victimisation

Victimisation is treating someone less favourably because they have taken (or might be taking) action under the Equality Act or because they are supporting somebody who is doing so.

An example of victimisation:

• Jennifer complains to the manager of her local medical practice about gender reassignment harassment because she overheard one of the members of reception staff mocking her appearance and misgendering her. In response she is told she must find another medical practice to use because her complaint has caused a lot of awkwardness.