Preventing Gender Reassignment Discrimination At Work
With students being taught to consider using pronouns in school such as they, them or using a person’s name, transgender rights are becoming more and more relevant and it is important that employers and employees alike are aware of the protection awarded to gender reassignment.
The preferred term used by transgender people is gender confirmation however the legislation is yet to be changed to reflect this preferred term. Recently Halifax shared an image on Twitter of a name badge with the name Gemma and the chosen pronouns she, her, hers and stated “Pronouns matter. #ItsAPeopleThing”. Halifax have confirmed that their staff are not forced to wear badges with pronouns but have the option to have their pronouns put on a badge should they so wish.
Protection Against Gender Reassignment Discrimination
Gender reassignment (also known as gender confirmation (which now is becoming the preferred term)) is one of nine protected characteristics covered by the Equality Act 2010 (EqA 2010).
Under section 7(1) of the EqA 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 terminology used is broad and therefore the terms can encapsulate a wide variety of actions. Some actions that a person may consider minor such as a person changing their hairstyle or style of clothes or requesting to be called another name could in fact be deemed a process or part of a process for the purposes of section 7 EqA 2010. The EHRC Code states at 2.23 that “gender reassignment’ is a personal process, that is, moving away from one’s birth sex to the preferred gender, rather than a medical process”. A broad definition that offers protection for a wide amount of actions or proposed actions.
There is no verified data confirming the exact amount of transgender people in the UK. However, Stonewall, which is an LGBTQ+ charity estimates that roughly 1% of the UK population may identify as Transgender or non-binary. Which equates to roughly 600,000 transgender people in the UK.
Numerous studies have been undertaken in which there appears to be a common theme that UK workplaces are not really ready and in many cases welcoming to trans people. A lack of policies, practices and procedures have been identified by trans people as reasons they may not apply for employment with a particular employer, and for those in employment as reason they may not confirm their trans identity to their employer and colleagues.
Protection for non-binary and gender fluid individuals
Although this articles concentrates on transgender rights and gender reassignment discrimination, it is important to touch upon the protection for identities that may be outside the scope of transgender definition.
The GEO Guide defines the term “non-binary” (also known as gender neutral, non-gender and gender fluid amongst others) is defined as “Someone who does not subscribe to the customary binary approach to gender, and who may regard themselves as neither male nor female, or both male and female, or take another approach to gender entirely.”
It has been argued by some employers that that non-binary and gender fluidity is technically not covered by the EqA 2010. However, in Taylor v Jaguar Land Rover Ltd  ET/1304471/2018 the employment Tribunal held that a person who identified as gender fluid/non-binary was covered by section 7 of the EqA 2010. The Tribunal referred to the intention of the Act is to cover “a personal move away from one’s birth sex, into a state of one’s choice” and determined that the intention of the protection was wider than those transitioning from male to female and vice versa.
The case is first instance so it is not binding but we understand it has been followed in subsequent decisions.
Types of gender reassignment discrimination
The law protects trans individual from suffering:
- Direct gender reassignment discrimination – Less favourable treatment directly because of gender reassignment/confirmation.
- Indirect gender reassignment discrimination: A policy, criterion or practice that is applied to all, but puts those with a protected characteristic such as gender reassignment/confirmation at a disadvantage which is not a proportionate means of achieving a legitimate aim.
- Harassment: Unwanted conduct, related to a person’s gender reassignment/confirmation, which has the purpose or effect of either violating dignity or creating a hostile, degrading, humiliating or offensive environment.
- Victimisation: Subjecting someone to a detriment because they have done or may do a protected act (including doing anything for the purposes of or in connection with the Equality Act 2010).
Practical tips for employers
It is recommended that employers put certain things in place before the need may arise and that they do not wait for a candidate or an employee to confirm that they are transitioning before implementing any policies and training. In other words employers should be proactive instead of reactive.
A transgender/gender fluid policy is a good starting point for employers in showing that they are inclusive and support transgender persons. It is also advisable that training on gender equality should be given to all employees with managers provided with extra training on how to support transitioning staff. If an employer has a transgender policy but does not train staff on the policy and gender equality, the policy will not have the required impact.
Transgender individuals have had protection against gender reassignment discrimination under the law for some time, however the issue appears to become more topical, perhaps as society evolves to become more open-minded and accepting. Employers should be aware of the breadth of the legal definitions and protections and consider either introducing policies, training and processes or at least giving thought to them so that implementation could take place. Our experienced team of employment law solicitors at GA can advise you on the systems and policies that you need to have in place.