Gender reassignment

09 July 2019

Gender Reassignment Discrimination

Discrimination is not acceptable in the workplace. No employer wants their employees to feel uncomfortable or unhappy at work

One of the greatest contributing factors to negative feelings at work can be a feeling of being discriminated.

Gender reassignment discrimination is illegal in the UK. The law lists them as protected characteristics in the Equality Act 2010.

What is gender reassignment discrimination?

The Equality Act 2010 prohibits discrimination, harassment and victimisation relating to the protected characteristic of ‘gender reassignment.

It is against the law to discriminate against, harass or victimise a person because of gender reassignment.

In short, discrimination against gender reassignment is unlawful and can lead to costly discrimination claims.

Employers must ensure they have clear anti-discriminatory policies and procedures in place and should seek advice if they are in any doubt how to proceed.

Consequences of discrimination

Compensation for discrimination is uncapped, meaning the Tribunal can award a substantial amount.

The compensation can consider financial losses and ‘injury to feelings’, intended to compensate the victim for the stress and anxiety suffered because of the employer's unlawful acts of discrimination.

The amount of an award may be increased if the employer has acted particularly maliciously.

What is gender reassignment in employment law?

Gender reassignment covers a person who:

  • Is proposing to undergo reassignment.
  • Is undergoing reassignment.
  • Or has undergone reassignment.

The law sees reassignment as someone who will reassign their sex by changing physiological or other attributes of sex.

Under the legislation, they refer these individuals to as a “transsexual person”.

Individuals will have the protected characteristic of gender reassignment if they are a female transitioning to become a male and if they are a male transitioning to become a female.

There is no requirement for the individual to have medical intervention or supervision whilst undertaking gender reassignment.

This means that the law can also cover gender identity, not just a trans employee who has undergone surgery.

The individual will still receive discrimination protection if they have reassigned their gender with no medical processes.

Direct discrimination for gender reassignment

Direct discrimination will occur when an individual is treated less favourably than others because of their gender reassignment.

Discrimination by association can also occur where an individual is treated less favourably than others because of the gender reassignment of a person they are associated with, eg a relative.

Discrimination by perception can also occur where an individual is treated less favourably because it is perceived they are proposing to undergo, are undergoing or have undergone gender reassignment. This may protect those who temporarily adopt characteristics of the opposite gender without an intention to transition, or those who do not associate with either gender.

Indirect discrimination for gender reassignment

Indirect discrimination will take place where a provision, criterion or practice applies to a group of employees but places those with the protected characteristic of gender reassignment at a particular disadvantage.

The individual claiming indirect discrimination must be able to show that employees with the protected characteristic of gender reassignment will be placed at a particular disadvantage compared to those without the protected characteristic.

They must then show that you have subjected them to a particular disadvantage.

Gender reassignment discrimination examples

An example of gender reassignment discrimination would be refusing to hire someone who you considered for promotion, purely because of them undergoing gender reassignment. This would be direct discrimination.

An example of indirect gender reassignment discrimination would to put in place a policy that deliberately prohibits those who are undergoing gender reassignment for applying for certain roles.

If proven at an employment tribunal, this form of discrimination can lead to an unlimited fine, something that could easily cripple a small business.

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