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Law Guide

Gender reassignment

Contents

Gender reassignment

The Equality Act 2010 provides that your employer can't treat you less favourably than others because of your gender reassignment status.

Gender reassignment is the process of changing one's physiological and other characteristics relating to one's particular sex to that of the opposite sex.

The protection covers you irrespective of whether the gender reassignment has been completed. It would also be unlawful if you were discriminated against because you are undergoing or intend to undergo the gender reassignment process.

Note that you will not be protected unless you intend to live permanently in the gender opposite to your birth sex.

Areas of gender reassignment discrimination in employment

Discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

In some cases, however, a job can be offered to someone of a particular gender without it amounting to unlawful discrimination, in order to comply with another law or if there is a genuine 'occupational requirement'.

Types of gender reassignment discrimination

Direct discrimination

This is where your employer treats you less favourably because of your gender reassignment status when compared with another worker who is not undergoing gender reassignment but who shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.) but must not be wholly dissimilar. If you cannot find a suitable comparator then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level, etc.). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

The law also extends to protecting you if your employer treats you less favourably based on:

  • Their perception of your gender reassignment status, regardless of whether or not the perception is correct.
  • The gender reassignment status of another person (also known as discrimination by association). Such instances would involve you being treated less favourably because you live with someone who is undertaking gender reassignment or because you were dismissed after refusing to comply with instructions that would require you to discriminate against someone because of their gender reassignment status.
Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can't defend a direct discrimination claim by justifying it (arguing that their actions were a proportionate means of achieving a legitimate aim). The only defence would be to prove that there was no discrimination.

Indirect gender reassignment discrimination

You will be subjected to this where certain working practices, provisions or criteria which apply to all employees, place some employees at a particular disadvantage compared to other workers because of their gender reassignment status. You must also actually suffer that particular disadvantage.

Indirect discrimination would not be unlawful if your employer can justify it by showing that the working practices, provisions or criteria which are being applied are a proportionate means to achieve a legitimate aim.

Your employer could be held liable for indirect discrimination even if they did not intend to discriminate against you.

Harassment

Harassment is unwanted conduct (including conduct of a sexual nature) towards a worker by an employer or another worker, because of that worker's actual or perceived gender reassignment status, or association with someone undergoing gender reassignment. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

Unlawful gender reassignment harassment will also occur if an employer treats a worker less favourably because they have rejected or submitted to any unwanted conduct.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Furthermore, the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it may be unlawful.

For example, making sexual remarks or gestures or referring to people who are undergoing gender reassignment by a potentially offensive nickname could all result in unlawful harassment.

Note that you will not be protected if you are over sensitive and unreasonably take offence to an innocent comment.

Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you during work time'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

An employer can escape liability for harassment if it took reasonable practicable steps to prevent it.

Victimisation

Victimisation happens when you are being treated less favourably because:

  • You have asserted your rights not to be discriminated against on the basis of your gender reassignment status by making a complaint about gender reassignment discrimination
  • You gave evidence in a complaint of gender reassignment discrimination
  • You did anything else under the Equality Act
  • You alleged that someone has contravened the provisions regarding gender reassignment discrimination in the Equality Act
  • Your employer believes that you have done or may do any of these things
For example, you may have been subjected to victimisation, if, because you have taken one of the above actions, you are prevented from going on training courses, or unfair disciplinary action is taken against you, or you are excluded from company social events.

Positive action

Positive action in training and applying for particular positions

If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
...then the employer can take any proportionate action which, either; enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of the circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • An employer does not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

What to do next

If you think that you're suffering discrimination at work, you should talk to your employer and explain why you feel discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you. Your employer may have an equal opportunities policy - ask to see it.

If this doesn't help, you should make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or the person your line manager reports to. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on Grievance procedures in England, Wales and Scotland.

If you're still unhappy, you can, in certain cases, apply to an Employment Tribunal. Before you do this you must obtain legal advice. You need to apply within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim to the Employment Tribunal within 3 months from the end of that period. It is advisable to obtain legal advice if you wish to proceed with a claim to an Employment Tribunal.

Further information

See the Acas website for more information on gender reassignment discrimination. Acas offers free, confidential and impartial advice on all employment rights issues.