Transgender equality and discrimination

What does ‘transgender’ mean?

While a person’s biological sex is defined at birth by their reproductive organs and physical differences, their 'gender identity' describes the inner sense of feeling that they are a man or woman.

Transgender, or 'trans', people strongly and consistently identify with a gender other than that they were assigned at birth. They live (or wish to live) permanently in their 'new' gender.

The 2021 Census revealed that 0.5 per cent of over-16s in England and Wales said their gender identity was different from the one they were assigned at birth.

Some trans people do not feel themselves to be either male or female and may identify as non-binary, genderfluid, or genderqueer.

A trans person may or may not be diagnosed with the officially recognised psychological condition of gender dysphoria. This is where clinically significant distress is caused when a person’s assigned birth gender is not the same as the one with which they identify.

Further explanation and information is available from Stonewall, which also contains a glossary of terms.

Gender reassignment

When a person wishes to live as a gender other than that they were assigned at birth they will go through a process of 'gender reassignment'. This is likely to involve social changes, such as using a new name or changed pronouns ('he', 'she', etc) and/or dressing differently.

Some will wish to undergo a medical and/or surgical transition process to change their bodies. This involves a combination of hormone medication and surgery, or sometimes just hormone treatment, to bring the body more closely in line with the underlying gender identity.

This is a long and arduous process and has implications at the workplace of those undergoing it.

Are trans workers legally protected from discrimination?

Gender reassignment is a protected characteristic under the Equality Act 2010 meaning it is unlawful to discriminate against a transgender person. This applies whether or not they have undergone any medical treatment to change their birth sex. Protection starts as soon as the person starts to live as a member of the opposite sex.

This law covers England, Wales and Scotland, while Northern Ireland has its own regulations on discrimination on grounds of gender reassignment.

Although the Equality Act currently only recognises two genders - male and female - case law has shown that non-binary workers are also covered by this section of the law.

What things count as gender reassignment discrimination in law?

There are four types of employer conduct that might be considered gender reassignment discrimination under the Equality Act 2010.

The most obvious form of unlawful discrimination is when the employer treats a trans person 'less favourably' than they would someone who is not. This is direct discrimination.

An example would be if someone informed their employer that they planned to live permanently as a different gender, and the employer transfers them away from a role with client contact.

Indirect discrimination occurs when an employer has in place an organisational procedure or practice that puts transgender people at a disadvantage compared with others.

If an employer fails to protect a transgender person from harassment they may be guilty of discrimination, unless they can show they have done everything they could to prevent it.

Victimisation is where an employer treats someone badly because they have made a complaint of gender reassignment-related discrimination or has supported someone who has done so.

In limited circumstances it may be lawful for an employer to discriminate if the action is deemed 'proportionate'. An example might be where the job involves intimate searches.

However, such exceptions do not apply where the person concerned holds a Gender Recognition Certificate.

Guidance on gender reassignment discrimination is provided by the Equality and Human Rights Commission.

What is a Gender Recognition Certificate?

The Gender Recognition Act 2004 enables trans people to acquire full legal equality in their acquired gender. It sets out how individuals can apply for a Gender Recognition Certificate (GRC), which changes a person’s legal gender, entitling them to all the legal rights that attach to a person of the acquired gender, for example, in the context of pensions.

The Act also protects the privacy of an individual’s trans status or application for gender recognition. Anyone who acquires information about someone’s trans status may be liable to criminal proceedings if they pass that information onto a third party without the permission of the individual. This applies to employers, trade union representatives and union officials.

Changing gender and the workplace

The process of changing gender is long and will include a period where the individual lives as a member of the new gender before they undergo surgery.

This will be for a minimum of a year and usually two or more years, and so clearly has implications for their working environment.

The process can be very stressful for the individual and requires support and sympathetic handling from all concerned. Confidentiality is usually especially important.

At the point when someone transitions they will need time off for treatment. They may wish to transfer to another position when they adopt their new gender.

There are many aspects that employers will need to address, such as information and training for managers and colleagues, flexibility in dress codes during transition, use of toilets and changing facilities and relevant harassment policies.

If a trans member approaches a union rep for support, any steps to be taken must be agreed with the member, and the maximum confidentiality must be observed for as long as the member wishes that to be the approach.

The TUC has guidance for union reps on supporting transgender people at work, and the CSP

Checklist for stewards and managers