Section 8(1) of the Equality Act 2017 (the “Act”) defines the protected characteristic of gender reassignment which confers legal protection in certain situations including the workplace.
“Gender reassignment” applies to a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of their sex, ie transitioning from male to female or female to male with the intention of living the rest of their life in the gender other than that assigned at birth. A transgender person has the protected characteristic of gender reassignment, however genders outside of a “man” or a “woman” are not explicitly protected under the Act, as discussed below.
A person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender to be protected. However, a person needs at least to have proposed to undergo gender reassignment. Where a person has started the gender reassignment process but then chooses not to proceed, they will still have the protected characteristic of gender reassignment.
What about people who do not identify exclusively as a man or a woman?
The scope of the relevant legal protections are broad enough that persons who are perceived to be undergoing or have undergone gender reassignment are included, even if that is not the case. Despite this, persons who have a non-standard (ie non-binary) gender identity or expression are not necessarily protected (although see the landmark decision of Taylor v Jaguar Land Rover Ltd mentioned below). The Act does make provision to replace the protected characteristic of gender reassignment with “gender identity and expression”. If this development is adopted, persons who do not identify with any particular gender, those who identify with both genders or who take a different approach entirely, as well as those transitioning from one gender to another, would all be protected. Whilst such a change may appear straightforward, it would require careful consideration of the implications, including the need for any exceptions to the general prohibition on discrimination (eg on the basis of “sex”).
Employees who “cross-dress”
An employer may have a situation where an employee chooses to dress in clothes which are typically expected to be worn by someone of the “opposite” gender. The intention of the Act is to protect those who make a commitment to live permanently in their non-birth gender, not those who temporarily choose to adopt the appearance of the opposite gender. That said, employees who cross-dress may be protected from direct discrimination and/or harassment where the alleged discriminator wrongly perceives them to be undergoing gender reassignment. However, with androgynous styles now becoming fashionable, this may not be such an issue in the future.
Different types of gender reassignment discrimination
Discrimination can occur throughout the employment lifecycle from the point of advertising roles, through interviewing, during employment when making decisions about promotions or assessing performance and when considering training opportunities. It can also crop up in relation to dismissals, in the context of redundancies/restructuring and even post-employment when providing job references. Claims can arise as a result of:
- Direct discrimination – this occurs where an employee or job applicant is put at a disadvantage or treated less favourably because they are, are perceived to be, or are associated with someone proposing to undergo, undergoing or having undergone gender reassignment. For example, an employee is excluded from work activities because they have a transgender spouse. Direct discrimination cannot be justified, but an employer may be able to rely on an permitted exception under the legislation.
- Discrimination in relation to absences from work – the Act provides special protection in respect of absences from work because of gender reassignment (similar to pregnancy and maternity). An employer cannot treat a person less favourably for being absent from work because they are proposing to undergo, are undergoing or have undergone gender reassignment than they would treat any other person off work (a) due to sickness or injury, or (b) for some other permitted reason in circumstances where it is not reasonable to treat the transgender person less favourably. Guidance suggests it would be good practice for employers to treat absences related to gender reassignment as ‘special leave’ and ensure that it does not negatively impact on performance reviews.
- Indirect discrimination – occurs when an employer applies a working practice, policy or rule equally to all staff, but it puts a transgender job applicant, employee or group of employees at a disadvantage when compared with others and the working practice, policy or rule cannot be objectively justified. An example of indirect discrimination is an employer asking staff to bring in a picture of themselves as a toddler, but a transgender female, who was brought up as a boy, does not want her colleagues to know and so refuses. The employer criticises her in front of the group for not joining in. A policy or procedure that forces an individual to disclose that they have undergone gender reassignment is an example of possible indirect discrimination (but could potentially also be used as evidence of the employer’s intention to discriminate directly, depending on the circumstances).
- Harassment – occurs where an employee is subject to unwanted behaviour because of their gender reassignment which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. An employer should ensure that staff are given clear guidelines as to what constitutes harassment and provide training on this.
- Victimisation – occurs when someone is treated less favourably because they have made or supported a complaint or grievance which concerns the protected characteristic of gender reassignment. For example, an employee is denied a promotion because they have made allegations of gender reassignment discrimination.
Examples of recent case law developments concerning gender reassignment discrimination…
- A UK employment tribunal awarded just over £47,000 compensation (including injury to feelings), plus loss of pay and pension contributions to an employee who had been constructively dismissed because the harassment she suffered and lack of action on the part of her employer led to her resignation. The employee was transgender, her birth name was Alexander, but she informed the employer at interview that she would like to be called Alexandra. HR mistakenly changed her title and name on the system to her birth name and gender. Her supervisor began calling her Alexander and laughed when corrected. The employee further alleged that staff sprayed men’s aftershave over her until she started coughing in a “man’s voice” and made comments about her sexuality. Complaints were made but not taken seriously. Her employer told her to calm down as she was drawing attention to herself (de Souza v Primark).
In this case, the Tribunal recommended that the employer adopt a written policy on dealing with gender reassignment, emphasise confidentiality within the policy, amend the materials used for equality training of staff, management and HR to include transgender discrimination and add content into training materials on handling grievances.
- A UK employment tribunal ruled that non-binary or gender-fluid persons can fall within the protected characteristic of gender reassignment for the purposes of discrimination law. The employee began identifying as gender fluid/non-binary (having previously presented themselves as a man) and started dressing in women’s clothing. As a result, they suffered direct discrimination, harassment and victimisation on the grounds of gender reassignment. The discriminatory acts included insults, abusive jokes, asking them if they were going to get their “bits chopped off” and issues regarding the use of toilet facilities. The employee received little to no support from management regarding their transition in the workplace and the abuse they were experiencing. The employee ultimately resigned. The Tribunal unanimously upheld the claim and stated that it was “clear…that gender is a spectrum” and that it is “beyond any doubt” that the employee was protected under the (UK) Act. The tribunal awarded £180,000 compensation, a majority comprised of injury to feelings, aggravated damages and an uplift for the employer’s failure to follow the ACAS Code of Practice in respect of the employee’s grievances (Taylor v Jaguar Land Rover Ltd).
In this case, whilst the employer had a number of policies (including an Equal Opportunities Policy), none of the managers or HR knew that they existed and the employer was therefore unable to rely on the defence of taking “reasonable steps”.
Employer’s obligations under data protection legislation
Employers should also keep in mind that information relating to an individual’s gender reassignment and any leave of absence for related surgery or concerned with hormonal treatment they may be undergoing will likely constitute “special category” personal data insofar as it relates to their “health”. This means that additional safeguards apply to its processing besides the fact that the matter is likely to be sensitive/confidential in a general sense. As a result, the employee’s wishes and dignity at work should be respected. It is also important that an employee’s information be kept up to date, particularly where the employee has legally changed their name.
A UK tribunal recently awarded a transgender employee £25,000 for the employer’s failure to change their name and details on their system (including pension records, door pass and name on the staff directory) for two years after the employee had transitioned.
Tips for employers
- Implement and review equal opportunity policies and procedures – employers should create an inclusive and supportive culture demonstrated by appropriate documentation in the form of policies and procedures and, ideally, be able to produce evidence of the policies in practice eg confirming promotion and development opportunities for all staff plus demonstrating how harassing behaviours and attitudes are unacceptable. Employers should keep these under regular review and ensure they are readily accessible to staff.
- Recruitment – ensure recruitment and selection processes are fair and not open to discrimination claims on the basis of gender reassignment. For example, incorporate a diversity statement in every job advert and take care not to use stereotyping or discriminatory language and images.
- Training – equality and diversity training is a must for all staff and, in particular, managers. The training should include guidance on gender identity issues, including appropriate use of pronouns, and clearly set out the standards and expectations for relevant behaviours plus the consequences if standards are not upheld. An employer may have a defence to claims of discrimination where it can demonstrate that – via training and reinforcement of policies – a zero tolerance approach is applied.
- Act promptly – concerns raised by employees should be investigated and dealt with promptly and sensitively.
Watch out for the next article in our equality series, regarding the protected characteristic of age, which will be published shortly.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
