gender reassignment discrimination example

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Gender Reassignment Discrimination

Anne morris.

• 7 September 2020

IN THIS SECTION

As an employer, it is illegal to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.

Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination .

This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.

What is gender reassignment discrimination?

Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.

The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.

To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.

What is the law on gender reassignment discrimination?

The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised , because of one or more of the nine protected characteristics , where gender reassignment is one of these.

All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.

To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.

Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.

What employment protections do transsexual employees have?

Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:

• Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
• Indirect discrimination : where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
• Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
• Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.

The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.

Examples of gender reassignment discrimination

Direct gender reassignment discrimination.

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.

Direct discrimination also covers the following scenarios:

• Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
• Discrimination by association : where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.

Indirect gender reassignment discrimination

Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.

An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.

Harassment because of gender reassignment

The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.

It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.

As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.

This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.

Victimisation because of gender reassignment

This is where someone at work is subjected to a detriment because they have 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.

A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.

What are the special protections relating to absences from work?

Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.

This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.

For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.

This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.

Can gender reassignment discrimination ever be justified?

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified , as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.

The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.

In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.

Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.

It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action .

What are the consequences of gender reassignment discrimination?

If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.

The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.

The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:

• A declaration setting out the rights of the parties
• An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
• A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

How can employers prevent gender reassignment discrimination?

Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.

These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.

In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR , we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts .

Gender reassignment discrimination FAQs

Gender reassignment discrimination takes place when someone is treated unfairly on the basis of their actual or proposed gender reassignment. The unfair treatment could be a one-off action or a blanket workplace rule or policy that puts a transsexual or trans person at a particular disadvantage.

What are the different types of gender reassignment discrimination?

There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.

What discrimination rights do trans employees have?

Trans employees have the right not to be treated less favourably at work, put at a disadvantage, or harassed or victimised, because they are transsexual, or perceived to be or connected with someone who is trans.

Last updated: 7 September 2020

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

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The Equality Act 2010 says that you must not be discriminated against because you are transsexual - that is your gender identity differs from the gender assigned to you at birth.

• For example a person who was born female decides to spend the rest of his life as a man.

In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one. You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.

The Equality Act says that you must not be discriminated against because:

• Of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination.
• Someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant. This is known as discrimination by perception.
• You are connected to a transsexual person, or someone wrongly thought to be transsexual. This is known as discrimination by association.

Inter-sex people are not explicitly protected from discrimination by the Act, but you must not be discriminated against because of your gender or perceived gender.

• For example, if a woman with an intersex condition is refused entry to a women-only swimming pool because the attendants think her to be a man, this could be sex discrimination or disability discrimination .

What is gender reassignment discrimination?

This is when you are treated differently because you are transsexual, in one of the situations that are covered by the Equality Act . The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to gender reassignment is lawful, explained below.

Different types of gender reassignment discrimination

There are four types of gender reassignment discrimination.

Direct discrimination

This happens when someone treats you worse than another person in a similar situation because you are transsexual.

• For example, you inform employer that you intend to spend the rest of your life living as a different gender. Your employer transfers you off your role against your wishes because they don’t want you to have client contact.

Absences from work

If you are absent from work because of gender reassignment, your employer cannot treat you worse than you would be treated if you were off:

• due to an illness or injury. For example your employer cannot pay you less than you would have received if you were off sick.
• due to some other reason.However in this case it is only discrimination if your employer is acting unreasonably. For example, if your employer would agree to a request for time off for someone to attend their child’s graduation ceremony, then it may be unreasonable to refuse you time off for part of a gender reassignment process. This would include, for example, time off for counselling.

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that puts transsexual people at a disadvantage.

Sometimes indirect gender assignment discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the discrimination. This is known as objective justification .

• For example a local health authority decides that it will not fund breast implants. As a result the health authority refuses to provide this treatment for a woman undergoing gender reassignment even though she considers it essential to make her look more feminine. The same policy is applied to all women but puts transsexuals at a greater disadvantage. The health authority may be able to justify its policy if it can prove that it has legitimate reasons.

Harassment is when someone makes you feel humiliated, offended or degraded because you are transsexual.

• For example a transsexual woman is having a drink in a pub with friends. The landlord keeps calling her ‘Sir’ and ‘he’ when serving drinks, despite her complaining about it.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

Victimisation

This is when you are treated badly because you have made a complaint of gender reassignment related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of gender reassignment related discrimination.

• For example, a transsexual is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.

Circumstances when being treated differently due to gender reassignment is lawful

A difference in treatment may be lawful if:

• An organisation is taking positive action to encourage or develop transsexuals to participate in a role or activity in which they are under-represented or disadvantaged.
• The circumstances fall under one of the exceptions to the Act that allow organisations to provide different treatment or services.
• Competitive sports: A sports organisation restricts participation because of gender reassignment. For example, the organisers of a women’s triathlon event decide to exclude a trans woman. They think her strength gives her an unfair advantage. However, the organisers would need to be able to show this was the only way it could make the event fair for everyone.
• A service provider provides single-sex services . If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender. In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing or has undergone gender reassignment.

Further information

If you think you might have been treated unfairly and want further advice you can contact the Equality Advisory Support Service

Freephone 0808 800 0082

Textphone 0808 800 0084

Or write to them at

Freepost Equality Advisory Support Service FPN4431

The Equality and Human Rights Commission has also produced a range of legal guidance on the Equality Act which you can find here .

Last Updated: 28 Sep 2015

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Health & Wellbeing

Gender Reassignment Discrimination

Health Assured Team 15 September 2021

Every transgender employee is legally protected from discrimination.

This doesn't only apply to people undergoing reassignment or possess a Gender Recognition Certificate. It covers anyone who uses the term - in any way, shape, or form.

Employers must protect their staff from gender reassignment discrimination. If not, you may face discrimination claims, lose staff, and pay compensation.

In this guide, we’ll look at what gender reassignment discrimination is. We’ll also look at what the Equality Act says and how to stop unfair treatment towards trans people.

What is gender reassignment discrimination?

Gender reassignment discrimination is when someone is treated unfairly because they're transgender.

But first, let’s look at what the term, 'gender reassignment' means. This is when a person feels that their gender identity is inconsistent with the one assigned to them at birth.

Many transgender people experience gender dysphoria and choose to transition to help them feel more comfortable in their daily lives.

A person doesn’t need to undergo a medical process to class as ‘ trans’ . It applies equally to those on their own personal process or journey.

If an employee is trans, they’re protected from discrimination based on gender reassignment.

What does the Equality Act say about gender reassignment?

The Equality Act 2010 covers a lot of the legal rights that apply to transgender people.

Trans rights are covered by the law on gender reassignment. That’s because it’s one of nine ‘ protected characteristics’ under the Equality Act 2010.

Transgender employees are also protected from:

• Pregnancy and maternity discrimination.
• Marriage and civil partnership discrimination.
• Sex discrimination .
• Sexual orientation discrimination .

Through the Equality Ac, trans people should receive these rights. Regardless of whether a person will undergo treatment to change their gender or not. If an employee says they’re trans, they’re protected from discrimination.

Raising a gender reassignment discrimination claim

Any transgender employee can raise a claim based on gender reassignment discrimination.

The transgender community faces all sorts of abuse and prejudice both in their personal and work lives. If a trans employee believes they were unfairly treated, they have a right to raise the issue.

Usually, these claims would be sent to an Employment Tribunal. A panel will hear at the case and view the evidence. In the end, they will decide if the employer is ‘ liable’ .

Unlawful discrimination based on gender reassignment can be seen in work practices and attitudes. The discriminatory act doesn’t only have to come from the employer.

If an employment tribunal claim is upheld, you could face serious costs. They could force you to pay expensive compensation and legal fees. When your business goes through hearings, it can ruin your reputation for good.

This protected characteristic applies to both full and part-time contract workers. It also includes job applicants and self-employed people, too.

Is gender reassignment discrimination ever allowed?

There are certain circumstances where gender reassignment discrimination may be allowed.

It’s called 'objective justification'. This is when an employer has a good reason behind their discriminatory acts.

Employers must show a ‘proportionate means of achieving a legitimate aim'. Meaning, they need to give a good reason for why they’re treating an employee differently.

For example, you can’t hire a trans person for an ' organised religion ' role. (Because it goes against your religious beliefs).

Employers cannot justify their actions themselves. Only a tribunal judge can say whether their reasoning classes as discrimination or not.

Otherwise, the employer will have ' vicarious liability ' over their act.

Different types of gender reassignment discrimination

There are several types of discrimination that cover gender reassignment.

Let’s look at into each one in depth:

Direct gender reassignment discrimination

Direct discrimination is the most common form that’s found. This is when someone experiences less favourable treatment due to their ‘ protected characteristics’ .

Most trans people will have faced direct gender reassignment discrimination at some point in their lives. It may be a one-off incident or a regular issue that occurs in their personal or working lives.

All trans employees are protected from direct discrimination regardless of their legal gender identity status.

An example of direct discrimination would be an employee (who was born female) decides to share their gender reassignment process. They talk about wanting to spend their life living as their chosen gender.

Certain colleagues don’t receive this well. They start making rude comments and excessive criticism. Because of the direct discrimination, the employee is left feeling too scared to come to work.

Indirect gender reassignment discrimination

Indirect discriminatio n is when you’re treated differently because of a workplace rule or practice.

Indirect gender reassignment discrimination can affect one person or a whole group. When a work rule separates people like this, it can ruin employee morale and motivation.

Indirect discrimination can be justified to a tribunal. However, you’ll need to prove your actions were justified and legitimate.

For example, a trans worker asks for paid leave to attend gender reassignment surgery. The business views this as a personal appointment, not a medical one. Rejecting their leave could be a form of direct or indirect discrimination.

Gender reassignment harassment

Harassment is when a person faces unwanted conduct or behaviour. It can make them feel unsafe and violate their dignity.

It’s quite hard to define harassment or bullying. People can be harassed by accident or on purpose. But in the end, it always leaves them feeling uncomfortable.

Gender reassignment harassment can be found in verbal and physical forms. For example, an employee receives trans-phobic jokes through a work email.

You can’t control harassment that comes from customers or the public. But you should do your best to protect trans employees from facing it at work.

Gender reassignment victimisation

Victimisation is when a person is treated unfairly because they made a complaint.

For example, a manager uses abusive language about transgender workers. They find out an employee complained about them. So, they start to create a hostile, offensive environment around them.

Here, there are no transgender workers involved however, it still counts as gender reassignment victimisation. It doesn't matter who raised the issue. If a person is bullied for raising a complaint, it counts as victimisation.

Gender reassignment discrimination by perception

Trans workers are also protected from gender reassignment discrimination by perception.

This is when you ‘ think’ a person has certain protected characteristics – but you don’t know for sure.

For example, you have employees who occasionally cross-dress or are gender variant. You cannot guess their gender. And they can't be treated unfairly because you think they’re trans.

How to stop gender reassignment discrimination

The transgender community has faced discrimination for decades.

The workplace is a great place to grow education and awareness. Starting here can help spread the right message to all pockets of society.

Let’s look at ways to support employees who are trans:

Create an equality and diversity policy

Every business has rules that everyone must follow – even the boss.

So, start by creating an equality and diversity policy. The policy shows how your business aims to treat all employees fairly.

It should include equal rights for all regardless of what a person's sex or gender is. It can also show zero-tolerance for derogatory trans-phobic terms and discrimination.

Through your policy, trans workers will feel safe and supported.

Use gender-inclusive language

In today’s society, people use lots of different gender terms and identities.

Not all trans people label themselves as ‘men’ or ‘women’ . It’s best to ask them what pronouns they use.

For example, a transgender worker states they are non-binary. They use ‘they/them’ pronouns, as they're gender fluid.

Gender-inclusive language is forever evolving. If employees present their preferred gender pronouns, you should only use them.

Offer training on transgender awareness

All employees should be given training on transgender awareness. This can range from offering presentations to reading material.

Not everyone interacts with transgender people on a daily basis. That’s why transgender awareness is so important. All employees get to learn how to avoid discrimination and support trans workers.

Along with training, employers can make practical changes to their workplace. For example, changing single-sex services (like bathrooms. They could add another bathroom for those who don’t class themselves as men or women.

Hire a diverse workforce

Hiring a diverse workforce is the easiest way to end discrimination in the workplace.

So, let’s turn this to the transgender community. If you employ a trans person, it can grow a culture of understanding and respect.

Employees will be able to interact with new people and experience new ideas and perspectives. And in return, trans workers gain better work experience and opportunities.

Be inclusive and hire a diverse range of employees. You’ll soon be able to see your business grow in so many ways.

Support all gender identity

Maybe you already employ transgender people in your workplace.

You should have talks with them and ask how you can best support them. Start collecting ideas for changes you can make to your workplace.

For example, you can ask them about trans inclusive language. Maybe they could help you rewrite paperwork and statements.

In the end, these efforts can help trans workers feel supported and valued.

Is transgender and transsexual the same?

No, a transgender person is not the same as a transsexual person.

Transsexual is a word that isn’t openly accepted anymore. In the past, transsexual people went through surgery to suit their non-birth gender.

But the term didn’t stop there. People also used it to describe trans people as, ‘ medically ill’ or ‘sexually deviant’.

The Gender Recognition Act 2004 is a law relating to gender dysphoria. It allows people to legally change their birth sex to a different gender.

But in 2016, a Women and Equalities Committee report argued against using ‘transsexuality’ . They said it should be removed from laws (like the Equality Act) because it was outdated. It also raised questions on who the act applies to.

In the workplace, it’s best to avoid using transsexual altogether. Unless a person specifically uses it themselves.

Get expert advice on gender reassignment discrimination with Health Assured

Health Assured’s EAP ( Employee Assistance Programme ) can help support your business with gender reassignment discrimination

With a huge number of certified counsellors and wellbeing specialists, we can help support transgender employees through challenging times.

We also offer a confidential whistleblowing service that allows transgender employees to raise workplace issues privately.

Arrange a call back from a workplace wellbeing expert today on 0800 206 2551.

Support your employees with an EAP

With a Health Assured Employee Assistance Programme (EAP) , we can offer you practical advice and support when it comes to dealing with workplace stress and anxiety issues.

Our EAP service provides guidance and supports your employees with their mental health in the workplace and at home. We can help you create a safe, productive workspace that supports all.

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A decision to undertake gender reassignment is made when an individual feels that his or her gender at birth does not match their gender identity. This is called ‘gender dysphoria’ and is a recognised medical condition.

Gender reassignment refers to individuals, whether staff, who either:

• Have undergone, intend to undergo or are currently undergoing gender reassignment (medical and surgical treatment to alter the body).
• Do not intend to undergo medical treatment but wish to live permanently in a different gender from their gender at birth.

‘Transition’ refers to the process and/or the period of time during which gender reassignment occurs (with or without medical intervention).

Not all people who undertake gender reassignment decide to undergo medical or surgical treatment to alter the body. However, some do and this process may take several years. Additionally, there is a process by which a person can obtain a Gender Recognition Certificate , which changes their legal gender.

People who have undertaken gender reassignment are sometimes referred to as Transgender or Trans (see glossary ).

Transgender and sexual orientation

It should be noted that sexual orientation and transgender are not inter-related. It is incorrect to assume that someone who undertakes gender reassignment is lesbian or gay or that his or her sexual orientation will change after gender reassignment. However, historically the campaigns advocating equality for both transgender and lesbian, gay and bisexual communities have often been associated with each other. As a result, the University's staff and student support networks have established diversity networks that include both Sexual Orientation and Transgender groups.

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Gender Reassignment Discrimination

Browse: Home > 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, m edical 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:

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.

How easy it is to prove discrimination?

The tribunals are well aware that direct evidence of discrimination is rarely forthcoming and it is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and un-recognised prejudice of which they are unaware.

Furthermore, a discriminatory reason for your employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’.

However, the Tribunal in most cases will still have to discover what was in the mind of the alleged discriminator, and the onus of proof is on your employer to show that there was no discrimination. In every case it is crucial to enquire why an employee has received less favourable treatment, and whether it was on the grounds of race or some other reason. This may be, for example, because you were not so well qualified for the role. Save in the obvious cases, asking the crucial question of your employer will call for some consideration of the mental process of the alleged discriminator (e.g. your line manager), together with the treatment you received as a consequence.

Accordingly, as direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming, the grounds of the decision or act by your employer would have to be deduced, or inferred, from the surrounding circumstances.

Please find below 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 wit h 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 s o (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 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.

An other 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:

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.

Pro ving 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.

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

What compensation can you claim for gender reassignment discrimination?

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes:

– loss of earnings , which can include past or future losses, unpaid holiday, bonuses, stock options or notice pay;

– an award of damages for ‘injury to feelings ‘ (see the injury to feelings compensation guidelines below) . This is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

– a personal injury , whether this is due to depression or physical injury (see below);

– aggravated damages. These are awarded in the most serious cases where the behaviour of your employer has aggravated your injury;

– punitive damages . This award is very rare and only in limited circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;

– interest , which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.

INJURY TO FEELINGS COMPENSATION GUIDELINES

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 2024 they are:

TOP BAND FOR THE MOST SERIOUS CASES: £35,200- £58,700  (although it can exceed this in exceptional cases);

MIDDLE BAND:  £11,700 – £35,200

LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination):  £1,200 – £11,700

Can I also claim personal injury in the employment tribunal due to the discrimination I have received?

As mentioned above, although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.

In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.

Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:

• “General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle;
• “Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).

The following factors need to be taken into account when valuing claims of psychiatric injury :

a) the injured person’s ability to cope with life and work;

b) the effect on the injured person’s relationships with family, friends and those with whom he comes into contact;

c) the extent to which treatment would be successful;

d) future vulnerability;

e) prognosis;

f) whether medical help has been sought;

g) whether the injury results from sexual and/or physical abuse and/or breach of trust; and if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.

What am I unable to include as part of my discrimination claim?

You will be unable to claim for the following:

• loss of reputation;
• injury to feelings for each alleged act of discrimination (unless you have discriminated for more than one protected characteristic (such as race, sex, disability etc.);
• an apology;
• costs (usually these are not awarded should you win or lose a tribunal case).

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.

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Gender reassignment discrimination and the NHS

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NHS bodies, in their roles as both employer and service provider, increasingly find themselves subject to complaints of discrimination on the grounds of gender reassignment, due to a growing awareness and understanding within the trans community of their rights as employees and patients.

It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.

The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).

The Equality Act 2010

Discrimination under the eqa 2010.

The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.

Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.

A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.

There are five types of prohibited discrimination in respect of gender reassignment:

• Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
• Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
• Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
• Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
• Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people

Case example

One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc [2003], the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.

However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.

Exceptions: when gender reassignment discrimination may be lawful

Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.

Application to the NHS

In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.

However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.

NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.

Gender Recognition Act 2004

The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.

Prohibition on disclosure of information

The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.

An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee’s personal file, disclosing the fact that the employee was born a different gender, without the employee’s prior consent.

Potential defences

There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.

In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.

Practical considerations for NHS bodies

The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.

Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.

In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.

Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.

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Gender reassignment discrimination in employment

Direct discrimination.

An employee needs to take time off work to attend medical appointments in relation to his gender reassignment process. The request is refused despite there being sufficient staff to cover so his employer is most likely being unreasonable. This would likely amount to unlawful direct discrimination related to gender reassignment.

A saleswoman informs the employer that she intends to spend the rest of his life living as a man. As a result of this, he is demoted to a role without client contact. The employer increases his salary to make up for the loss of job status. Despite the increase in pay, the demotion would likely constitute as less favourable treatment because of gender reassignment.

Discrimination by perception

A feminine-looking man visits a menswear store to enquire about a job vacancy. Following an informal chat, the manager discourages him from applying because he thinks that he is transgender and that he is “looking for someone with more masculinity to sell the products". The man would likely have a claim for direct discrimination because of perceived gender reassignment, even though he is not in fact transgender.

Indirect Discrimination

An employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transgender woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in. It would be no defence that it did not occur to the employer that this worker may feel disadvantaged by the requirement to disclose such information. To avoid a claim of indirect discrimination the employer should consider alternative ice-breaker activities that won’t compromise the dignity or security of any individual.

A transgender employee is required to travel abroad for work purposes. Her employer requires two forms of ID for going on trips abroad, one of which must be a birth certificate. This puts the employee in a very difficult position to provide a second form of ID as she does not want to disclose the fact that she had a different gender assigned at birth. To avoid a claim of indirect discrimination the employer should have ways of allowing an alternative form of additional ID, for example, a driving (or provisional) licence, otherwise the employer is likely to risk indirect discrimination claims from transgender employees.

An advisor for a careers guidance service is overheard by a transgender client making offensive and humiliating comments to a colleague about her looks and how she is dressed. This could amount to unlawful harassment related to gender reassignment.

Victimisation

Two years ago you made a complaint of harassment against your colleague related to your gender reassignment. Your former colleague is now your manager and arranges for you to be redeployed not because of your gender reassignment, but rather because you had the impertinence to suggest that he had discriminated against you. His act could amount to unlawful victimisation related to gender reassignment.

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Sex and Gender Reassignment Discrimination in the Workplace

The United Kingdom has a variety of laws which make it illegal to discriminate against people because of their gender or sex. One of the most important pieces of legislation is the Equality Act 2010. This act aims to protect people from any discrimination that they may face in relation to any of the nine key protected characteristics. These characteristics are age, disability, gender reassignment , marriage or civil partnership (within employment only), pregnancy and maternity, race, religion or belief system, sex and sexual orientation.

The following article will consider discrimination in the workplace based on sex and gender assignment, as set out by the Equality Act 2010.

There are four main types of discrimination which are covered in the workplace and which must be considered when discussing discrimination based on sex or gender reassignment. These can be categorised as direct discrimination, indirect discrimination, harassment and victimisation.

Direct Discrimination

Direct discrimination is discrimination which is directed at an individual because of their sex or due to their gender reassignment. Examples of direct discrimination may include;

• choosing not to employ someone,
• dismissing them unfairly from their position,
• withholding or offering significantly worse contractual benefits,
• withhold a promotion.

In addition to ordinary forms of direct discrimination, it is also possible for direct “discrimination by association” to occur.

Discrimination by association occurs because of the people who are associated with the victim. For example, if a person was denied a job because their father had undergone gender reassignment, then that person would have been affected by discrimination by association. Lastly, people may suffer from direct discriminations based on perception. This occurs due to perceptions about someone’s sex or gender reassignment, regardless of whether those perceptions are correct. For example, a person may be prejudged based on the perceived gender of their name.

Indirect Discrimination

Indirect discrimination is discrimination which is caused by policies, procedures, rules and common practices within the workplace which inadvertently favour or disadvantage a particular group of people. This may include;

• contractual benefits,
• recruitment selection criteria,
• flexible working options,
• redundancy scoring criteria.

In order to bring a case of indirect discrimination, the claimant must be able to show that the policy would affect all members or the majority of members of their particular group. In some cases, employers may be able to justify these practices, if there is a legitimate business interest or aim to the disputed rules. For example, an employer may be justified in stipulating that the role is only for women, if it could be unsafe or unsuitable for a man to perform the task (e.g. support worker for vulnerable teenage girls).

Harassment involves unwanted conduct due to (actual or perceived) sex or gender reassignment. A person may also be treated less favourable because they rejected unwanted sexual conduct from another employee. Examples of harassment include;

• inappropriate questions,
• unwanted jokes,
• excluding someone.

Sexual harassment is also a risk within the workplace. Sexual harassment can include;

• comments about physical appearance,
• unwanted physical contact,
• displaying pornographic images,
• sexual assault.

Sexual harassment can be committed by a person of any sex or sexual orientation. In some cases, a victim of harassment may feel uncomfortable, even if there is no intent from the alleged harasser. In these cases, a tribunal may need to consider whether it is reasonable for the victim to feel the way that they do and whether it is possible for the accused person’s actions to be perceived as harassment.

It is also possible for a third party to make a complaint of harassment, even if conduct is not directed towards them. For example, a person may complain about co-workers making sexual comments towards another staff member, if they felt that this was having a negative impact on their working environment.

Victimisation

Victimisation is the disadvantage, harm or loss that a person suffers in the workplace due to their previous involvement in a discrimination case; including making an allegation of discrimination, giving evidence in a complaint, or supporting someone else’s discrimination case.

A person who is being victimised may be labelled as a troublemaker, denied opportunities, excluded from training and events, and they may be threatened with a poor reference when seeking other employment.

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Sexual orientation, gender identity and gender reassignment

Explore the CIPD’s point of view on sexual orientation, gender identity and gender reassignment, including recommendations for employers

To create a truly safe and inclusive workplace culture, HR practitioners should establish policies that follow a zero-tolerance approach to bias, barriers and discrimination. These policies should champion equality of outcomes and impact for all protected characteristic groups, including sexual orientation and gender reassignment.

The situation

The CIPD’s research on inclusion at work explores LGBT+ experiences of work, from conflict and wellbeing to job outcomes, and finds that LGBT+ employees are more likely to experience workplace conflict and harassment than their heterosexual, cisgender counterparts.  Examples include:

40% of LGB+ workers and 55% of trans workers in the UK have experienced such conflict, compared with 29% of heterosexual, cisgender employees. A higher proportion of LGB+ workers (16%) feel psychologically unsafe in the workplace compared with heterosexual workers (10%), while for trans workers, this figure is even higher at 18%.

Based on UK research carried out by YouGov, the Stonewall report highlighted that many LGBT+ people are still unable to be themselves at work. Just over a third of LGBT+ staff say that they’ve hidden their sexual orientation or gender identity at work, and a further fifth of LGBT+ people experienced negative comments or negative behaviour from work colleagues in the last year due to them being LGBT+. 

The discrimination, bullying and harassment of trans employees needs to be stamped out – 12% have been physically attacked by customers or colleagues in the last year because of their trans identity.

Sexual orientation discrimination and gender reassignment discrimination are illegal in the UK, and are listed as protected characteristics in the UK Equality Act 2010. Discrimination takes place when someone is unfairly disadvantaged for reasons related to their sexual orientation or because they are transsexual* (transgender).

*Note : We recognise that terminology evolves, and that there’s not always universal agreement on the meaning of some terms. We say this specifically with regards to the word ‘transsexual’, which, although used in the Equality Act 2010, is now generally considered as outdated and misleading. ‘Transsexual’ is just one term under the broader umbrella of ‘trans’, which describes people whose gender is different from their sex at birth.

The Equality Act 2010 does not explicitly protect those people identifying as non-binary. However, as per case law, they could be protected if they are discriminated against on the basis of them considering, going through, or having gone through, gender reassignment. (Also see ‘ perceptive discrimination ’ on sexual orientation, gender identity, gender reassignment and employment.)

CIPD viewpoint

The CIPD believes that an individual’s sexual orientation and gender identity should not affect whether they get a job, benefit from training or get promoted. Everyone has the right to equality of access, treatment and outcomes throughout the employee lifecycle including access to jobs, developing their skills and talents to achieve their full potential, working in a safe and inclusive environment, being fairly rewarded at work, and having a voice in their organisation. It’s in the best interests of any organisation to understand and respond positively to LGBT+ issues to attract and retain the best people.

We recognise that the rights of one group can come into conflict with another – for example, the rights of trans women and cisgender women. In such circumstances the CIPD encourages employers and organisations to assess each situation on a case-by-case basis, listen and, if necessary, seek advice to enable all colleagues to be supported.

In addition to a sensible zero-tolerance approach to both sexual orientation and gender reassignment discrimination, HR and managers need to set behavioural expectations for the workforce and the organisation’s stakeholders through policies, and lead by example in championing sexual orientation and transgender people equality of outcomes and impact. It’s essential that policies are brought alive by the behaviour and actions of everyone in the organisation, ensuring workplace cultures are an inclusive and safe space for all.

Actions for the UK Government

• Launch a major, ongoing and well-resourced education campaign to raise awareness of issues the LGBT+ community is facing in the workplace and encourage a culture of inclusion among employers.
• Establish a ‘one-stop shop’ for employers to make it easier to navigate the many sources of information, advice and guidance already available.
• Provide clear guidance for employers, including on how to manage the areas of equality which can potentially come into conflict.

Recommendations for employers

• Take steps towards building an inclusive culture by critically assessing your organisational culture. Do you have a culture of inclusivity at work? Are your policies and practices underpinned by principles that actively value, celebrate and encourage differences? Do you have mechanisms in place through which employees can voice issues about inequality and voice their opinions on what needs to change?
• Review your organisation’s policies to ensure they deliver equality of outcomes and impact. Clear and effectively enforced policies, supported by regular equality, diversity and inclusion training as part of continuous professional development, can eradicate homophobic, biphobic and transphobic bullying and help champion improved outcomes. Policies should include practical examples of unacceptable behaviour and best practice.
• Work closely with leaders and managers to ensure they implement and lead people management practices compassionately and fairly and understand how to support and champion trans staff equality and inclusion.
• Work with LGBT+ staff networks in a positive and active way, ensuring a two-way dialogue. Utilise staff insight and expertise to evaluate and integrate LGBT+ equality, diversity and inclusion change into people policies, processes, performance management and organisation culture.
• Champion LGBT+ equality, diversity and inclusion from the top of the organisation, for example, have leadership allies and LGBT+ representation in senior decision-making.

External resources

• Stonewall (2018) LGBT in Britain – Work Report
• GEO and Mordaunt, P. (2018)  LGBT Action Plan 2018: Improving the lives of Lesbian, Gay, Bisexual and Transgender people

Equality, diversity and inclusion

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More on this topic

What does EDI mean in the workplace and why is an effective EDI strategy vital to business?

Explore the legal issues relating to pregnancy and maternity discrimination in the workplace

Explore the legal issues relating to marriage and civil partnership discrimination in the workplace

Overview exploring the types of discrimination and how these apply to each of the nine protected characteristics in the Equality Act 2010

More CIPD Viewpoints

Explore the CIPD’s point of view on religion and belief, including actions for Government and recommendations for employers

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Explore the CIPD’s point of view on low pay and financial wellbeing, including recommendations for employers and actions for the UK Government

Explore the CIPD’s point of view on age diversity in the workplace, including recommendations for employers and actions for the UK Government

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• Equality Act

Gender reassignment discrimination

• Your rights under the Equality Act 2010
• Age discrimination
• Disability discrimination
• Marriage and civil partnership discrimination
• Pregnancy and maternity discrimination
• Race discrimination
• Religion or belief discrimination
• Sex discrimination
• Sexual orientation discrimination

Human Rights in Action

What is on this page?

What is gender reassignment discrimination, what the equality act says about gender reassignment discrimination, different types of gender reassignment discrimination, circumstances when being treated differently due to gender reassignment is lawful, who is this page for.

• individuals using a service
• any organisation using a service
• public sector

Which countries is it relevant to?

Great Britain

On this page we have used plain English to help explain legal terms. This does not change the meaning of the law.

The Equality Act 2010 uses the term ‘transsexual’ for individuals who have the protected characteristic of gender reassignment. We recognise that some people consider this term outdated, so we have used the term ‘trans’ to refer to a person who has the protected characteristic of gender reassignment. However, we note that some people who identify as trans may not fall within the legal definition.

This page is subject to updates due to the evolving nature of some of the issues highlighted. 

This is when you are treated differently because you are trans in one of the  situations covered by the Equality Act . The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to being trans is lawful. These are explained below.

See more videos like this in the equality law: discrimination explained playlist on YouTube (opens in new window) .

The Equality Act 2010 says that you must not be discriminated against because of gender reassignment.

In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.

To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender.

You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate, which is the document that confirms the change of a person's legal sex. 

For example, a person who was born female and decides to spend the rest of their life as a man, and a person who was born male and has been living as a woman for some time and obtained a Gender Recognition Certificate, both have the protected characteristic of gender reassignment. 

There are four types of gender reassignment discrimination.

Direct discrimination

This happens when someone treats you worse than another person in a similar situation because you are trans. For example:

• you inform your employer that you intend to spend the rest of your life living as the opposite sex. If your employer alters your role against your wishes to avoid you having contact with clients, this would be direct gender reassignment discrimination.

The Equality Act says that you must not be directly discriminated against because:

• you have the protected characteristic of gender reassignment. A wide range of people identify as trans. However, you are not protected under the Equality Act unless you have proposed, started or completed a process to change your sex.
• someone thinks you have the protected characteristic of gender reassignment. For example, because you occasionally cross-dress or do not conform to gender stereotypes (this is known as discrimination by perception).
• you are connected to a person who has the protected characteristic of gender reassignment, or someone wrongly thought to have this protected characteristic (this is known as discrimination by association).

Absences from work

If you are absent from work because of your gender reassignment, your employer cannot treat you worse than you would be treated if you were absent:

• due to an illness or injury. For example, your employer cannot pay you less than you would have received if you were off sick.
• due to some other reason. However, in this case it is only discrimination if your employer is acting unreasonably. For example, if your employer would agree to a request for time off for someone to attend their child’s graduation ceremony, then it may be unreasonable to refuse you time off for part of a gender reassignment process. This would include, for example, time off for counselling.

Indirect discrimination

This happens when an organisation has a particular policy or way of working that puts people with the protected characteristic of gender reassignment at a disadvantage.

Sometimes indirect gender reassignment discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the discrimination. This is known as  objective justification . For example: 

• An employer has a practice of starting induction sessions for new staff with an ice-breaker designed to introduce everyone in the room to each other. Each worker is required to provide a picture of themselves as a toddler. One worker is a trans woman who does not wish her colleagues to know that she was brought up as a boy, so she does not bring her photo and is criticised by the employer in front of the group for not joining in. The same approach is taken for all new staff, but it puts people with the protected characteristic of gender reassignment at a particular disadvantage.  This would be unlawful indirect discrimination unless the employer could show that the practice was justified.

Harassment is when someone makes you feel humiliated, offended or degraded for reasons related to gender reassignment. For example:

• a person who has undergone male-to-female gender reassignment is having a drink in a pub with friends and the landlord keeps calling her ‘sir’ or ‘he’ when serving drinks, despite her complaining about it.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from harassing you, you will not be able to make a claim for harassment against the organisation, only against the harasser.

Victimisation

This is when you are treated badly because you have made a complaint of gender reassignment discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of gender reassignment discrimination. For example:

• a person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.

A difference in treatment may sometimes be lawful. This will be the case where the circumstances fall under one of the exceptions in the Equality Act that allow organisations to provide different treatment or services on the basis of gender reassignment. For example:

• competitive sports: a sports organisation restricts participation because of gender reassignment. For example, the organisers of a women’s triathlon event decide to exclude a trans woman with a Gender Recognition Certificate as they think her strength or stamina gives her an unfair advantage. However, the organisers would need to be able to show that this was necessary to make the event fair or safe for everyone.
• a service provider provides single-sex services. The Equality Act allows a lawfully established separate or single-sex service provider to prevent, limit or modify people’s access on the basis of gender reassignment in some circumstances. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present will be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether or not the person has a Gender Recognition Certificate.

Updated: 23 Feb 2023

• Removed paragraph on language recommendations made by Women and Equalities Committee (WEC) in 2016
• Removed the term ‘transsexual’ as per WEC 2016 recommendations
• Added paragraph explaining use of plain English in the guidance
• Removed a paragraph on intersex people not being explicitly protected from discrimination by the Equality Act

Last updated: 23 Feb 2023

Further information

If you think you might have been treated unfairly and want further advice, you can contact the Equality Advisory and Support Service .

Phone: 0808 800 0082

You can email using the  contact form on the EASS website .

Also available through the website are BSL interpretation, web chat services and a contact us form.

Post: FREEPOST EASS HELPLINE FPN6521

Opening hours:

9am to 7pm Monday to Friday 10am to 2pm Saturday closed on Sundays and Bank Holidays

Alternatively, you can visit our advice and guidance page .

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Gender Reassignment

What is gender reassignment.

In most cases we grow up feeling a sense of comfort or acceptance with our gender but this is not true for all people. Around 1 in 11,500 people will find that as they grow up, they feel less comfortable with the gender prescribed to them at birth, and will instead, find greater comfort and connection to another gender. They may then express the need to live in this different and more appropriate gender. In Scotland, those of us experiencing this are referred to as ‘transgender’ or ‘trans’ people. ‘Trans’  is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, their birth.

In the Equality Act it is known as gender reassignment*. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one.You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.

*’Gender reassignment’ is a term of much contention and is one that Stonewall’s Trans Advisory Group feels should be reviewed.

The Equality Act 2010 says that you must not be discriminated against because you have the protected characteristic of gender reassignment, where your gender identity is different from the gender assigned to you when you were born. For example, a person who was born female decides to spend the rest of his life as a man

In the Equality Act this is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one. You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.

The Equality Act says that you must not be discriminated against because:

• of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination
• someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant (this is known as discrimination by perception)
• you are connected to a transsexual person, or someone wrongly thought to be transsexual (this is known as discrimination by association)

Intersex people (the term used to describe a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t fit the typical definitions of female or male) are not explicitly protected from discrimination by the Equality Act, but you must not be discriminated against because of your gender or perceived gender. For example, if a woman with an intersex condition is refused entry to a women-only swimming pool because the attendants think her to be a man, this could be sex discrimination or disability discrimination

Following is a short film by the Equality & Human Rights Commission titled ‘What is gender reassignment discrimination?’.

Trans people are entitled to the same level of quality care as everyone else and should expect to receive it based on their gender identity, gender expression or physical body. However, it is important to appreciate the lived experience of many Trans people to ensure the care health services provide is appropriate and sensitive.

Findings from the recent INCLUSION Project research showed significant issues for Trans people include:

• Mental health problems including suicide, self harm, anxiety and depression
• Lack of primary care facilities as many GPs have no or little knowledge of Trans people’s needs
• Lack of access to essential medical treatment for gender identity issues, i.e. electrolysis for Trans women
• Lack of awareness and understanding of care providers so that Trans people are in appropriately treated in single gender out patient and in patient services.
• Inconsistent funding and access to transitioning services throughout Scotland
• Lack of social work service to support children, young people, adults and families with gender identity issues.
• Social exclusion, violence and abuse and the resulting negative impact on health and well-being

NHS Greater Glasgow and Clyde were the first NHS Board in Scotland to publish a  Gender Reassignment Policy  which sets out our commitment to ensure equality of access to services that are both appropriate and sensitive.

We have the busiest trans services in Scotland at the Sandyford Initiative and provide a number of specialist services that are recognised as being amongst the best in the UK. However, there are still barriers experienced by Trans people using mainstream NHS services.

It is essential that frontline NHS staff do all they can to remove the stigma of transitioning and play their part in delivering services of the highest standard to Trans people. To this end, guidance has been issued to support staff in responding to queries from Trans service users.

Fran’s Story

Fran transitioned from male to female 10 years ago. She has spent her life experiencing bullying and harassment because of her gender identity and has been the victim of several hate crime incidents.

Fran was experiencing pain in her right thigh and attended an outpatient appointment.  When Fran entered the waiting area she gave her name and confirmed her appointment time.  The receptionist explained there wasn’t an appointment for a Fran Walker but there was one for a Mr Frank Walker.  Fran explained that she should now be referred to as Fran as she had requested all records be updated to reflect her gender reassignment.  The receptionist explained she was unable to do that until the medical records were updated.  Fran was asked to take a seat in the waiting area.  Fran was in discomfort but before taking a seat explained again it was Fran or Ms Walker, not Frank or Mr Walker.

While Fran was waiting for her appointment she heard a member of staff calling for a Mr Frank Walker.  Fran sat where she was, angry, frustrated and embarrassed that she was still being referred to in the wrong gender.  Eventually after a repeat call she stood and walked into the treatment room.  She was still very upset and asked why, despite explaining she wished to be called by her new name, staff insisted on calling her by her previous name.  The member of staff explained the name on her record was Frank Walker, not Fran, and until they heard otherwise, she would continue to be addressed as Frank or Mr Walker. Fran tried to remain calm and explained that if she was referred to as Frank again she would make a formal complaint.  The member of staff reiterated the position so Fran explained that staff were in breach of legislation protecting trans people. They were deliberately disclosing her previous birth gender and so could be held liable and receive a significant financial penalty under UK law. Fran stated that if it happened again she would take formal action. The equality Act protects trans people in a number of ways, one of which is to ensure previous birth gender is only disclosed to another party when necessary with appropriate controls in place and then only with the expressed permission of the trans person.

Publications

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22nd September 2023

What is new in the EHRC guidance?

The Equality and Human Rights Commission has today released updated technical guidance on the Equality Act for schools in England and in Scotland. We look at what has changed.

Clearer definitions: no child under 18 can change sex

The new guidance is more careful and precise about the legal definitions of sex and gender reassignment. The old guidance said:

“A person’s sex refers to the fact that he or she is male or female. In relation to a group of people, it refers to either men and/or boys or women and/or girls.”

The new guidance says:

“A person’s sex refers to the fact that he or she is a male or female of any age. ‘Sex’ is understood as binary – being male or female – with a person’s legal sex being determined by what is recorded on their birth certificate, based on biological sex. A trans person aged 18 or over can change their legal sex by obtaining a Gender Recognition Certificate through procedures set out in the Gender Recognition Act 2004.”

On gender reassignment the old guidance said:

“Gender reassignment is a personal process (rather than a medical process) that involves a person moving away from his or her birth sex to his or her preferred gender and thus expressing that gender in a way that differs from, or is inconsistent with, the physical sex with which he or she was born. This personal process may include undergoing medical procedures or, as is more likely for school pupils, it may simply include choosing to dress in a different way as part of the personal process of change. A person will be protected because of gender reassignment once: he or she makes his or her intention known to someone, regardless of who this is (whether it is someone at school or at home, or someone such as a doctor); he or she has proposed to undergo gender reassignment, even if he or she takes no further steps or decides to stop later on; there is manifestation of an intention to undergo gender reassignment, even if he or she has not reached an irrevocable decision; he or she starts or continues to dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person; he or she undergoes treatment related to gender reassignment, such as surgery or hormone therapy; or he or she has received gender recognition under the Gender Recognition Act 2004. It does not matter which of these applies to a person for him or her to be protected because of the characteristic of gender reassignment. This Guidance uses the term ‘transsexual person’ to refer to someone who has the protected characteristic of gender reassignment.”

“Gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex. To be protected from gender reassignment discrimination, a person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender. A person can be at any stage in the transition process, from proposing to reassign sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not a person has applied for or obtained a Gender Recognition Certificate, which is the legal document that enables trans people aged 18 and over to have their acquired gender recognised as their legal sex.  A child can have the protected characteristic of gender reassignment.”

This is a more careful explanation of the law. It does not assume that a child can elect to “dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person” while at school.

Separate-sex facilities clarified

The section on separate-sex facilities has been clarified. The old guidance said:

“Gender segregation is permitted for a few specifically defined purposes. For example there is an exemption permitting gender segregation in certain situations where it is necessary to preserve privacy and decency. However, unless a specific exemption applies, segregation connected to gender will be unlawful.”

“Sex segregation is permitted in certain situations, such as where it is necessary and appropriate to preserve privacy and decency. The law requires schools to provide single sex toilet facilities for children over eight and single sex changing facilities for children over 11. These may be either in sex-segregated communal facilities or in single-user lockable rooms.”

This is helpful, as combined with the clarified definition of sex it makes clear that boys (male) use the boys’ facilities and girls (female) use the girls’ facilities.

“Misgendering” example removed

The EHRC has removed both a question and the answer from its FAQ section:

“ A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy? ” Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.

This deletion seems to be an admission that it would not be direct gender-reassignment discrimination to refuse to refer to a female pupil as a boy (so called “misgendering”). Nor does the EHRC try to raise the spectre of indirect discrimination here, presumably recognising that referring to boys as boys and girls as girls is not indirect gender-reassignment discrimination.

An inexplicable change

In another example:

“A school excludes a pupil because he has declared his intention to undergo gender reassignment and is beginning to present in the style of the opposite sex. This would be direct gender reassignment discrimination,”

the EHRC has changed “a school” to “a co-educational school”.

This seems entirely unnecessary. A single-sex school that excluded a pupil who expressed an intention to undergo gender reassignment would also be undertaking direct gender-reassignment discrimination. (The school is not required to pretend that the child has changed sex or to treat them differently, but it should not exclude them for having the notion.)

Two unchanged cases

Two cases that remain unchanged in the guidance are:

“A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.”

“A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.”

We think these two example remain unhelpful. In the first case the example of a member of staff repeatedly telling a child they look silly could indeed be direct discrimination. What the example does not explain is whether the child is complying with uniform rules (in which case the member of staff does not need to say anything), or whether they are breaching uniform rules (in which case the member of staff should treat this in the normal way, without insults). Some schools have separate uniform rules for boys and girls, and others have a single uniform code.

The second example suggests it is not “appropriate” for a boy who identifies as a girl to use the boys’ changing room. But this would in fact be direct gender-reassignment discrimination. Schools are required to provide sex-segregated facilities. While a unisex alternative might sometimes be able to be found, at other times the only practical option may be the boys’ or the girls’, and the school should be clear that it is always appropriate for gender-non-conforming boys to use the boys’ facilities and gender-non-conforming girls to use the girls’ facilities, without being bullied, harassed or excluded.

Overall the guidance has moved in a helpful direction, but is still confusing in parts. It is now for the Department for Education to fill in the gaps, taking into account all the legal frameworks and responsibilities that apply to schools in addition to the Equality Act. It will need to spell out clearly whether it is possible for a boy to “live as a girl” or a girl to “live as a boy” at school, in relation to any school rules and policies.

Filed under Schools and safeguarding    Updates   

Tags: EHRC (Equality and Human Rights Commission) , Equality Act

Check if you've experienced discrimination

This advice applies to England. See advice for See advice for Northern Ireland , See advice for Scotland , See advice for Wales

If you’ve been treated unfairly or harassed, you might have experienced ‘unlawful discrimination’ - this means the discrimination is against the law.

If you want to take action about discrimination, you need to check if what happened is covered by the Equality Act 2010. This is the law that stops employers, businesses and service providers discriminating against you.

There are 3 things you need to check:

You were discriminated against because of something about you like your age or race - these things are called ‘protected characteristics’

The person or organisation that treated you unfairly has a duty not to discriminate against you

What happened meets the definition of a type of discrimination described in the Equality Act

If you work out that you haven’t experienced discrimination under the Equality Act, you might still be able to take action using different laws.

1. Check if it was because of a protected characteristic

It’s unlawful to discriminate against you because of one or more of the 9 protected characteristics.

If you weren’t discriminated against because of a protected characteristic, it’s not discrimination under the Equality Act.

The 9 protected characteristics are:

You must not usually be discriminated against because of:

how old you are 

an age group you’re in - for example young people, millennials or over-60s 

However, sometimes businesses and service providers are allowed to treat you differently because of your age. For example, banks are allowed to set age limits on mortgage lending.

You can check when businesses or services can discriminate against you because of your age .

If you are disabled or have a long-term health condition, you’re protected from discrimination if your impairment meets the Equality Act’s definition of disability.

The Equality Act says you’re disabled if:

you have a physical or mental impairment

the impairment has a substantial and long-term effect on your everyday activities

If you want to make a disability discrimination claim, you’ll need to show your impairment meets the Equality Act’s definition of disability.

Some conditions are automatically treated as a disability under the Equality Act, including cancer and HIV.

Check how to  show you’re disabled under the Equality Act .

Gender reassignment - this means if you're transgender

If you’re transgender, you have the protected characteristic of ‘gender reassignment’.

Gender reassignment means you:

are planning to transition from the sex you were assigned at birth to a different sex

are in the process of transitioning 

have already transitioned

Transitioning could include things like changing your name, pronouns or the way you dress - you don’t need to have had medical treatment.

The Equality Act is from 2010 and it doesn’t reflect the language lots of people use to describe their gender or their transition.

If you’re non-binary

The Equality Act says you only have the protected characteristic of gender reassignment if you’re transitioning from one sex to another. It doesn’t mention non-binary people. 

In 2020, a non-binary person successfully argued they had the protected characteristic of gender reassignment at an employment tribunal. 

The judge at the tribunal said the characteristic should include people transitioning away from their assigned sex - even if they aren’t going to transition to a different sex.

Other courts don’t have to follow this decision. This means if you take legal action about discrimination, the judge might decide you don’t have the protected characteristic of gender reassignment.

If you want to make a complaint or legal claim about discrimination, it’s still worth referencing this case. 

The name of the case is Ms R Taylor v Jaguar Land Rover Ltd. You can read the full employment tribunal decision on GOV.UK . The judge’s decision about non-binary people is in paragraph 178 of the 'Reasons' document.

Marriage and civil partnership

Your employer must not discriminate against you because you’re married or in a civil partnership.

Work is the only place you’re protected from discrimination because of marriage or civil partnership.

If you’ve separated from your partner, you’re still protected until you legally end your marriage or civil partnership.

If you’re not married or in a civil partnership, you don’t have this protected characteristic - for example, if you’re in an unmarried relationship or you’re divorced.

Since Nisha got married, her manager has stopped giving her weekend shifts and won’t let her do overtime. Her manager said other members of staff need the extra shifts more and her husband should be supporting her financially. This is discrimination because of marriage.

Pregnancy and maternity

You’re protected from maternity and pregnancy discrimination while you’re pregnant. The protection starts as soon as your pregnancy begins.

At work, your protection ends either:

when your maternity leave ends - if you’re entitled to it

2 weeks after your baby is born - if you’re not entitled to maternity leave

Your employer also can’t discriminate against you because you’re planning to take maternity leave, or because you took it in the past. Check your rights while you’re on maternity leave .

Outside of work, your protection ends 26 weeks after your baby is born.

After the protected period ends

If you experience discrimination after you stop being protected from pregnancy discrimination, you might be able to claim sex discrimination.

You must not be discriminated against because of your race. 

The Equality Act says race includes your:

nationality

ethnic or national origins

It can also include other things related to race - like how you talk, the clothes you wear or your hairstyle.

Nationality

Your nationality is the country where you have citizenship. You might be a citizen of more than one country - for example, you could have British and Armenian dual citizenship. 

Ethnic and national origins

Ethnic and national origins can include lots of different things like:

the country or region where you were born or grew up

where your parents or other family members came from

the ethnic group you belong to - for example, if you’re Caribbean, Jewish or Irish Traveller

It’s still race discrimination even if the discrimination isn’t about your actual ethnic or national origins. For example, it’s race discrimination if you’re Bangladeshi and someone uses anti-Pakistani slurs against you.

Religion or belief

You must not be discriminated against if you belong to an organised religion - for example, if you’re Muslim, Hindu or Buddhist. This includes smaller religions like Rastafarianism or Paganism.

You also must not be discriminated against for belonging to a specific denomination or sect - for example if you’re Jewish and you’re Orthodox or Liberal.

Your religious beliefs are also protected. For example if you’re Christian, you must not be discriminated against for believing in creationism.

You’re also protected if you don’t have any religion or religious beliefs. For example, you mustn’t be discriminated against for being an atheist. 

Philosophical beliefs

You must not be discriminated against for your philosophical beliefs. It’s up to a court or tribunal to decide what counts as a philosophical belief. 

If you want to show your beliefs are philosophical, you need to show:

you genuinely hold the belief

it’s a moral, ethical, personal or philosophical belief - not an opinion based on facts 

it’s about an important aspect of human life and behaviour

it’s serious and important

it’s worthy of respect in a democratic society and compatible with human dignity

Some things courts have decided are philosophical beliefs include:

belief in climate change

anti-fox hunting beliefs

Some things that courts have decided are not philosophical beliefs include:

believing the Holocaust didn’t happen

being a member of a political party

You must not be discriminated against because of your sex. The Equality Act says your sex means if you’re a man or a woman.

If you’re transgender

Legally, your sex is the sex registered on your birth certificate. 

You can change the sex on your birth certificate if you have a gender recognition certificate. 

Non-binary is not legally recognised as a sex in the UK.

If you’re intersex

Your sex must still be registered as male or female on your birth certificate. Intersex people are not legally recognised in the UK and intersex is not a protected characteristic under the Equality Act. You can get advice and community support for intersex people on the ICON website .

The Equality Act defines your sexuality as your sexual orientation to men, women or both. 

You must not be discriminated against because you’re lesbian, gay, bisexual or straight. 

If you’re not lesbian, gay, bisexual or straight

The Equality Act is from 2010 and it doesn’t reflect the language lots of people use to describe their sexual orientation. 

If your orientation isn’t covered by the Equality Act, you might still be protected. For example if you’re pansexual, you might be able to claim protection as a bisexual.

If you’re asexual, you’re not currently protected from discrimination as an asexual. However, you might still be protected as lesbian, gay, bisexual or straight - for example if you’re asexual and you’re in a relationship.

If someone discriminates against you because they think you have a protected characteristic

If someone discriminates against you because of a protected characteristic, it might still be discrimination even if you don’t have the characteristic. This is called ‘discrimination by perception’. 

For example, it’s discrimination by perception if a pub refused to serve you and your friend because they thought you were a gay couple, even though you’re not. 

It can be discrimination by perception even if the person knows you don’t have the protected characteristic. For example, it’s discrimination by perception if your colleagues are harassing you by making jokes about you being gay - even though they know you’re not.

Discrimination by perception applies to all protected characteristics except:

pregnancy and maternity

marriage and civil partnerships

This means it’s not discrimination if someone treats you unfairly because they mistakenly think you’re pregnant, married or in a civil partnership.

If someone discriminates against you because of someone else’s protected characteristic

It might still be discrimination - for example, if a social worker treats you unfairly because of your wife and child’s ethnicity. This is called ‘discrimination by association’. 

Discrimination by association applies to all protected characteristics except:

This means it’s not discrimination if someone treats you unfairly because you’re associated with someone who is pregnant, married or in a civil partnership.

2. Check if the person or organisation that treated you unfairly is legally responsible for discrimination

The Equality Act protects you from discrimination in the following contexts:

work - for example your employer or employment agency

education - for example your school, college or university

businesses or service provision - like a shop or a train company

health or care provision - like a hospital or care home

housing provision - like a landlord or estate agent

public service provision - for example the police or your local council

clubs and associations - like a sports club

If someone who works for one of these organisations discriminates against you, the organisation is also responsible for the discrimination. This is called ‘vicarious liability’. For example if your colleague discriminates against you, your colleague and your employer are both legally responsible. 

If a customer or service user discriminates against you

It isn’t usually covered by the Equality Act - unless the business or service could have stopped it happening. For example, it might be unlawful discrimination if someone at your local leisure centre regularly harasses you and the staff don’t do anything to stop it - even though you keep complaining.

3. Check if what happened is a type of discrimination under the Equality Act

The Equality Act describes what sorts of behaviour count as different types of discrimination.

The types of discrimination include direct discrimination, indirect discrimination and harassment.

You need to check if what you experienced counts as one or more of these types of discrimination.

Check what type of discrimination you experienced .

If you’ve experienced unlawful discrimination under the Equality Act

There are things you can do if you’ve experienced discrimination under the Equality Act. Discrimination isn’t a criminal offence - this means you can’t ask the police to investigate it. You’ll need to take action yourself.

You should follow these steps:

Complain to the person or organisation - for example by following their formal complaints procedure

Check if you can get help to solve the problem - for example through mediation or an ombudsman

Take the person or organisation to court - if you can’t solve the problem without going to court

Before you take action about discrimination, you need to decide what outcome you want and the best way to achieve it. Check how to take action about discrimination .

There are time limits for taking legal action about discrimination. If you need to go to court, it’s important to act quickly - the time limits can be as little as 3 months from the date you experienced discrimination. Check what the time limits are .

If what you experienced wasn’t discrimination

You can’t take action using the Equality Act. Check if you have a different type of legal complaint or if you can solve the problem another way. 

check if it was a hate crime

check if it was criminal harassment  

If you’re not sure if you’ve experienced discrimination

You can talk to an adviser. They can’t tell you if you’ve definitely experienced unlawful discrimination, but they can help you work out if your situation might be covered by the Equality Act. 

If they think your situation is covered, you can decide if you want to take action.

You can talk to a Citizens Advice adviser .

You can also contact an Equality Advisory Support Service adviser .

If you’re finding things difficult

Discrimination can have a big impact on your mental health. You should talk to your GP if you’re feeling depressed or anxious. 

You can find other ways to get help with your mental health on the Mind website .

If you need to speak to someone 

You can speak to a trained volunteer at organisations like Samaritans or Shout.

Helpline: 116 123 (Monday to Sunday at any time)

Welsh Language Line: 0808 164 0123 (Monday to Sunday 7pm to 11pm)

Calls to Samaritans are free.

You can find other ways to get in touch with Samaritans on their website .

You can also text 'SHOUT' to 85258 to start a conversation with a trained Shout volunteer. Texts are free, anonymous and confidential from anywhere in the UK.

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Gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief, sexual orientation, related information, related pages on this site, protected characteristics.

Published: 6 July 2021

Last updated: 6 July 2021

What countries does this apply to?

It is against the law to discriminate against someone because of a protected characteristic. The nine protected characteristics are:

• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• religion or belief
• sexual orientation

You are protected under the  Equality Act 2010  from these types of discrimination.  

A person belonging to a particular age (for example 32 year olds) or range of ages (for example 18 to 30 year olds).

See our guidance on  age discrimination .

A person has a disability if she or he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities.

See our guidance on disability discrimination .

Where a person undergoes, or proposes to undergo, a process for the purpose of reassigning their sex.

See our guidance on  gender reassignment discrimination .

Marriage is a union between a man and a woman or between a same-sex couple.

Same-sex couples can also have their relationships legally recognised as 'civil partnerships'. Civil partners must not be treated less favourably than married couples (except where permitted by the Equality Act).

See our guidance on  marriage and civil partnership discrimination .

Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.

See our guidance on pregnancy and maternity discrimination . 

A race is a group of people defined by their colour, nationality (including citizenship) ethnicity or national origins. A racial group can be made up of more than one distinct racial group, such as Black British.

See our advice and guidance on  race discrimination .

Religion refers to any religion, including a lack of religion. Belief refers to any religious or philosophical belief and includes a lack of belief. Generally, a belief should affect your life choices or the way you live for it to be included in the definition.

See our guidance on  religion or belief discrimination .

A man or a woman.

See our guidance on sex discrimination . 

Whether a person's sexual attraction is towards their own sex, the opposite sex or to both sexes.

See our advice and guidance on  sexual orientation discrimination .

Equality Act

Find out more about the  Equality Act 2010 , which provides the legal framework to tackle disadvantage and discrimination.

Page updates

6 July 2021

Last updated:

Advice and support

If you think you might have been treated unfairly and want further advice, you can contact the  Equality Advisory and Support Service (EASS) .

The EASS is an independent advice service, not operated by the Equality and Human Rights Commission.

Phone: 0808 800 0082  

Call the EASS on:

0808 800 0082

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Boletín Mexicano de Derecho Comparado , nueva época, vol. 56, núm. 168, septiembre-diciembre de 2023, es una publicación cuatrimestral; aparece la primera semana de enero, la primera semana de mayo y la primera semana de septiembre. Editada y publicada por el Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, Circuito Maestro Mario de la Cueva s/n, Ciudad Universitaria, Coyoacán, C.P. 04510, Ciudad de México, Tel. (52) 55 56 22 74 74, https://revistas.juridicas.unam.mx/index.php/derecho-comparado  Correo electrónico:  [email protected] , Editor responsable: Camilo Emiliano Saavedra Herrera. Certificado de Reserva de Derechos al Uso Exclusivo número: 04-2002-060413380600-102, ISSN electrónico: 2448-4873, otorgado por el Instituto Nacional del Derecho de Autor. Licitud de Título 2096 y Licitud de Contenido 1327 otorgado por la Comisión Calificadora de Publicaciones y Revistas Ilustradas de la Secretaría de Gobernación. Responsable de la última actualización de este número, Coordinación de Revistas, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, Ricardo Hernández Montes de Oca, Circuito Mario de la Cueva s/n, Ciudad Universitaria, Coyoacán, C.P. 04510, Ciudad de México. Fecha última modificación: junio de 2024.

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