What is Gender Reassignment Discrimination? When an individual is subjected to unfair or unequal treatment as a result of or in connection with the protected characteristic of “gender reassignment” as defined within the Equality Act 2010 (“EqA 2010”).
Who is protected?
The protection extends to individuals whose gender identity differs from the gender assigned to them at birth. The EqA expressly protects individuals who are proposing to undergo or are undergoing or have undergone a process of reassigning their sex, either completely or in part. Transitioning is a personal process and medical intervention is not a requisite for this protection to apply. Therefore, if an individual has simply proposed to change their gender then they can be protected against discrimination.
It was also found in the case of Taylor v Jaguar Land Rover, that any movement along the gender spectrum would be deemed a “reassignment” for the purpose of the EqA 2010 and consequently, protection extends to those who are gender fluid or those with non-binary gender identities.
Gender reassignment discrimination can also occur where an individual is subjected to unfair or unequal treatment as they are perceived to have or are associated with someone with the protected characteristic of gender reassignment.
Individuals who are protected on the basis of gender reassignment are protected from direct and indirect discrimination, harassment and victimisation in the workplace. This protection extends to a wide range of individuals in the workplace including; employees, contract workers, partners, job applicants and trainees.
Exceptions
There are circumstances where an employer may have a lawful “defence” to gender reassignment discrimination. Where there is an occupational requirement for a vacancy to be filled by a person of a specific, biological gender, making a decision about recruitment in that context may not be unlawful.
In the case of Lawrence v Wills t/a Zeus Sauna/Zeus@71 ET/2604029/09, the Claimant (who was transitioning from male to female) worked as a receptionist at a massage sauna which was predominantly occupied by men. Her employer required her to present as male whilst working and she was ultimately dismissed. The Claimant brought discrimination claims on the basis of gender reassignment and the employer argued that male customers would have objected to the presence of a woman. The Tribunal rejected this defence and held that adjustments could have been put in place (for example, setting up modesty screens and a requirement for customers to wear towels in the lounge area) rather than treating the Claimant as they did.
We would recommend you get in touch with our Employment Team if you require any further information or advice on this.
A Potential Pitfall for Employers
It is an offence for someone who has acquired protected information in an official capacity to disclose the information to any other person (section 22 of the Gender Recognition Act 2004). It is therefore vitally important that sensitive data is confidential.
As a practical example, if a member of HR were to receive information indicating that a job applicant or employee is transgender (which would be classified as protected information), for example, because the name on their birth certificate/ID is inconsistent with the name on their application and they were to then disclose this information to any other person (e.g. the interview panel), then they would open themselves up to the risk of obtaining a criminal record and receiving a Level 5 fine.
Top Tips for Employers
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Communication & Training
Ensure that your staff (especially those in management positions) receive up to date equality, diversity and inclusion training and consider arranging awareness events inviting organisations or professional speakers to come into the workplace to educate your staff.
Speak with your staff and ensure that they understand the importance of treating their colleagues with respect, making the organisation’s zero-tolerance position clear in respect of bullying, harassment and discrimination in the workplace. For example, that the use of trans-phobic language or derogatory comments (including inappropriate jokes) is unacceptable.
You should also ensure that all staff are aware of how to report any incidents of bullying, harassment or discrimination and feel safe and comfortable in the workplace. Any such complaints should be dealt with sensitively and promptly.
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Check your policies, handbook, contracts and workplace practices
Review your policies, staff handbook, terms and conditions of employment and practices (e.g. your recruitment/selection processes) to ensure fairness and confirm that there is no discriminatory language used or policies / practices in place which particularly disadvantage trans individuals – as this could potentially give rise to a discrimination claim.
You could consider putting in place new policies, for example, a policy regarding the optional use of pro-nouns in the workplace. The implementation should include explaining the staff why there may be a need to introduce the policy and why it is important for everyone to read and understand it. Alternatively, you could update your policies / procedures to ensure that gender-neutral terminology is used.
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Continue to educate
Keep yourself up to date on the appropriate adjectives and pro-nouns. This can assist in the normalising of the use of pro-nouns and help trans staff members feel comfortable / accepted in the workplace. It will also enable you to ensure that you are not using outdated language, or terminology that may evolve to become offensive or inappropriate.
Summary
Ensuring that you and your staff stay up to date on training and appropriate practice can benefit your business in a plethora of ways, as not only will you mitigate the potential risks of falling foul of discrimination law, but you will also foster a positive and supportive workplace environment for your employees.
If you are seeking advice or have any questions in relation to this article, please contact our Employment team.