Gender Reassignment Discrimination


Gender reassignment discrimination


The Equality Act 2010 (‘the Act’) makes it unlawful to discriminate in employment on the grounds of gender reassignment.

How is ‘gender reassignment’ defined under the Act?

For the purposes of the Act, ‘gender reassignment’ covers any person who is “proposing to undergo, 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”.

All trans people are protected, i.e. those whose gender identity does not match the gender they were assigned at birth, and who may decide to align their life and physical identity to match their gender identity. The definition includes a man who is making the transition to being a woman and vice versa.

Guidance on the Act makes it clear that changing your gender is a personal rather than a medical process. Therefore, medical intervention and medical processes are not required for a person to meet the definition and acquire the protection of the Act. To be protected, you need to have at least proposed to change your gender, however, this does not have to be a final decision. People who start the process but then decide not to continue can also be protected.

Transvestites are not protected if they are not also trans (i.e. cross dressing is not motivated by a desire to live with a different gender to the one they were assigned at birth). However, they may be protected if they are discriminated against because they are perceived as being trans (see ‘Direct Discrimination’ below).

If a trans employee has been diagnosed with a condition such as gender dysphoria, then they may also be protected by the disability discrimination provisions of the Act, as long as the other criteria for a disability have been met. Please see our specific page on disability discrimination for more information.

Who is covered by the Act?

The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

What is gender reassignment discrimination?

Gender reassignment discrimination is where you are treated unequally because of gender reassignment, perceived gender reassignment or the gender reassignment of someone with whom you associate. The Act has deemed that gender reassignment is a ‘protected characteristic’ and, accordingly, discrimination for this reason is unlawful.

Gender reassignment discrimination can arise in any of four ways:

Direct discrimination
Indirect discrimination
Harassment
Victimisation

Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment. Therefore, the law is designed to protect trans employees and workers during all aspects of employment. Moreover, you do not need to be employed for a particular period of time in order to bring a claim.

Here is some more detail about the various types of discrimination:

Direct discrimination

This is perhaps the most common type and involves the less favourable treatment of others on grounds of gender reassignment. Direct discrimination also covers ‘associative discrimination’ where a person is discriminated against for associating with a trans person, as well as ‘discrimination by perception’ which is the unfair treatment of someone who is perceived to be trans.

For example, the Act protects trans people who choose to cross-dress as part of the process of transitioning to live as their non-birth gender. Conversely, the Act does not protect transvestites who choose to temporarily cross-dress for other reasons. However, a transvestite who is mistakenly perceived as a trans person and discriminated against because they are perceived to be a trans person, this would be discrimination by perception.

You would need to look at how an employer treats a trans employee compared to employees who live with and identify with the gender they were assigned at birth.

The defence of ‘objective justification is not available for direct discrimination.

Indirect discrimination

This is the application of a rule or practice that, on the face of it, applies equally to persons who are not trans but which particularly disadvantages trans people.

An example of indirect discrimination might be where an employer implements a dress code which involves wearing tight fitting clothing, meaning that a trans employee finds it difficult to give the appearance of being the gender with which they identify. Another example might be where an employer runs an ice-breaker asking all employees to bring in childhood photos and then chastises a trans employee for not doing so (because the employee does not want their colleagues to know that they were brought up as a different gender). It would be irrelevant that the employer does not know that the employee is trans.

Whilst these would be blanket policies, applying to all individuals regardless of gender identification, they particularly disadvantage a trans individual and therefore could give rise to a discrimination claim.

Indirect discrimination can be objectively justified; the onus is on the employer to prove that it the discrimination is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the harassment is intentional or unintentional.

Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.

Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.

Harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of trans-phobic jokes around the office and the use of derogatory trans-phobic terms.

Additionally, the Equality Act has deemed that the employer is potentially liable for the harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.

Gender reassignment harassment also includes sexual harassment of a trans employee (see our specific page on sexual harassment).

Victimisation

This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment (this is known as a ‘protected act’). There is no need to compare your treatment to an employee who has not done a ‘protected act’.

Some common examples of gender reassignment discrimination

Gender reassignment discrimination often arises in relation to the use of single-sex facilities, such as toilets. It is generally agreed that a trans person should be free to use the facilities for the gender with which they identify, once they start to live full-time as that gender.

Another common example is when an employer treats a trans employee less favourably in relation to absences from work because of gender reassignment compared to other sickness absence. For example, if your employer refuses, without good reason, to let you have time off to undergo treatment for gender reassignment, or pays you less than you would have received if you were off sick, this is likely to amount to direct discrimination.

Another example of direct discrimination might be where a trans person is refused a promotion because of his or her gender reassignment. Other examples might include the harassment of someone because they have a trans partner or family member.

Who is liable under the Act?

Liability for gender reassignment discrimination usually lies with the employer and/or any other employee who is found to have discriminated.

Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the other employee as well as the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third-party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue against the individual employee.

Are there circumstances where gender reassignment discrimination may be lawful?

Gender reassignment discrimination may be lawful where there is an occupational requirement.  Your employer would need to show that the requirement to discriminate is a ‘proportionate means of achieving a legitimate aim.

This might occur when:

The general nature of the role requires that the employee is or is not trans – for example a gender identity support group leader might be required to be trans.
For roles in organised religion, where being trans would not comply with the doctrines of that religion.

In both these examples the employer would need to show that requiring the employee to be (or not be) trans is “crucial” to the role, not just one of many important factors.

There could also be Positive action. This is a voluntary measure which enables employers to provide support or encouragement to persons within a particular group if, during the last 12 months, that group has been disproportionately represented in that area of work. Employers could encourage this group to apply for jobs and even provide special training.

Overseas employment

The Act applies only to establishments in Great Britain.

Proving discrimination

It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.

This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.

Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.

It is unusual to find direct evidence of gender reassignment discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote because they are trans, the evidence may point to the possibility of discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.

If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory, it is open to the tribunal to infer that the discrimination was because of gender reassignment.

Raising a grievance

If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.

If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.

Remedies

An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of gender reassignment discrimination.

A declaration which is an order declaring what the rights of the parties are
Compensation

A recommendation that the employer should take certain steps to remove or reduce the discrimination.

Compensation

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon. The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ”Vento” guidelines, and from 6th April 2019, they are:

TOP BAND FOR THE MOST SERIOUS CASES£26,300 – £44,000 (although it can exceed this in exceptional cases);

MIDDLE BAND £8,800 – £26,300

LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination):  £900 – £8,800

Time limits

The Act imposes strict time limits throughout the procedure for bringing a case for gender reassignment discrimination. Good cases can be lost before they start through hesitation or delay.

If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.

The time limit for making a claim for gender reassignment discrimination to the employment tribunal is three months less one day from the last act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.

A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three-month period runs from the end of the continuing act. 

Tribunals do have discretion to allow late claims to proceed, but there must be a good and exceptional reason why a claim was not made in time.

You should ideally obtain professional advice as soon as possible if you think you have a claim.

We are a leading firm of employment law solicitors, acting for employees and senior executives in the City and throughout the UK. For more information on gender reassignment discrimination and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

 

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