Gender Reassignment Discrimination

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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.

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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:

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.

a diverse and collaborative workplace

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 discrimination 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.

a person with rainbow face paint

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.

three employees laughing around a laptopthree employees laughing while working on a laptop

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.

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