All employees, workers, and job applicants are protected from unlawful discrimination. And this absolutely includes trans people.
Their legal rights come under gender reassignment legislation. Meaning, you cannot discriminate against trans people because of their gender identity.
If employers ignore this, they could face serious business costs. You could end up losing staff, paying compensation, and face business damages.
In this guide, we’ll look at what gender reassignment discrimination is, what the law covers, and how to protect trans people during work.
What is gender reassignment discrimination?
Gender reassignment discrimination is when a person is treated unfairly because they identify as transgender.
Gender reassignment is defined in a number of ways. Some will undergo gender reassignment treatment; others will use trans identities. In simple terms, it's all about a person's perceived their gender identity.
Gender reassignment is when a trans person believes their birth sex isn’t coherent with what they identify as in reality. Many transgender people will experience this, so they champion their preferred or different gender.
This is called gender dysphoria. Some people live their everyday lives as the preferred gender. Others may choose to undergo treatment to change physical gender attributes. In the end, transgender identities are personal processes for individuals.
What does the Equality Act say about gender reassignment?
In the UK, the law relating to discrimination comes under the Equality Act 2010.
The act covers gender reassignment; as it's one of nine protected characteristics. The Equality Act states all trans people are protected from discrimination based on:
- Gender reassignment.
- Marriage and or civil partnership.
- Pregnancy and maternity.
- Religion or belief.
- Sexual orientation.
This legal right applies equally to full and part-time contract workers. It also includes job applicants and self-employed people, too.
Can employees raise gender reassignment discrimination claims?
Yes, a transgender employee can raise a gender reassignment discrimination claim. These claims are usually raised to an employment tribunal.
Transgender people can face bullying or discriminatory acts - inside and outside of the workplace. If they were treated unfairly because of their gender identity, they're legally allowed to raise this claim.
An employment tribunal will look at the claim in full. After the hearings, they will decide on a final outcome.
If the claim is upheld, their employer could face serious consequences. First of all, tribunal hearings aren't great for your business brand-name and reputation.
Transgender workers and their colleagues may decide to leave and seek work elsewhere. This may happen whether the claim is successful or not.
The worst cost you could face is paying compensation. When it comes to any form of unlawful discrimination, these financial awards can be unlimited. But it all depends on the seriousness of the claim and the tribunal's final decision.
Can gender reassignment discrimination ever be legal?
Under employment law, there are certain circumstances where gender reassignment discrimination can be legal.
This is called 'objective justification' and it's covered under the Equality Act 2010. Objective justification is when a discriminatory act is lawful due to having a ‘proportionate means of achieving a legitimate aim'.
In simple terms, the employee is treated differently because their employer has a good or legal reason. For example, not considering trans employees for an 'organised religion' job role. The discriminatory act may be accepted because it goes against religious rights.
Employers cannot justify their actions themselves. Only a tribunal judge can say whether their reasoning classes as discrimination or not.
If the employer implements it themselves, they could be potentially liable for 'vicarious liability' due to their act.
Are there different types of gender reassignment discrimination?
Yes, you can define gender reassignment discrimination into four main categories:
- Gender reassignment direct discrimination.
- Gender reassignment indirect discrimination.
- Gender reassignment harassment.
- Gender reassignment victimisation.
Let's take a look at each type in more detail.
Gender reassignment direct discrimination
Direct discrimination is when a person receives unfair treatment because of a protected characteristic.
Most people will probably experience direct discrimination in their lives. Every trans employee is protected from direct gender reassignment discrimination during work.
For example, a trans employee (who was born female) decides to share their transition process at work. Their manager then makes negative and excessive criticism about this. They give them a verbal warning, telling them trans people aren’t welcome there.
Gender reassignment indirect discrimination
Indirect discrimination is when a person receives less favourable treatment due to a workplace rule.
When a work practice shows indirect discrimination, it ruins staff performance, morale, and even loyalty. And this goes for whether it's direct or indirect discrimination.
For example, a trans employee wants to take leave for attend a trans-support march. HR views this leave as a personal reason. They reject it on the basis that social marches aren’t outlined as a valid reason to take leave.
Gender reassignment harassment
Harassment is when a person faces unwanted conduct related to a protected characteristic.
Transgender people can face gender reassignment harassment from colleagues, managers, and even customers. The offensive environment caused by harassment leaves trans employees feeling scared.
For example, an employee emails several trans-phobic jokes to a trans employee. They tell the harasser to stop but they continue to send them.
Gender reassignment victimisation
Victimisation is when a person is placed at a detriment due to raising a complaint related to their protected characteristic.
Victimisation claims aren't only raised by the affected employee. They can be raised by others who are linked to the claim, like a witness.
For example, an employee sees a client use abusive language and derogatory trans-phobic terms. They’re worried about raising a complaint about a high-paying client but choose to inform the HR department.
How to prevent gender reassignment discrimination in the workplace
Employers need to be proactive when it comes to transgender acceptance.
So many people fall into this protected characteristic. So, it's important to protect trans employees and their legal rights.
If you neglect this, you could end up losing employees and ruining your business name. Not to mention, it's highly possible you could face discrimination claims through tribunal hearings.
Here are ways to prevent gender reassignment discrimination in the workplace:
Create an equality and diversity policy
The first step to take is to create an equality and diversity policy.
This is a statement showing your support towards equal opportunities - regardless of employee 'differences'.
You need to let your staff know that these rules apply to everyone. Also state what the consequences are for discrimination against a person's sex, race, or gender reassignment.
Offer awareness training to your staff
Most businesses offer awareness training only to their managers. But it's even more beneficial to give it to all staff members.
Transgender awareness training can include all sorts of factors. Like reading material, presentations, and one-to-one training sessions.
The main aim of awareness training is for employees to understand how to support their transgender colleagues during work.
Make workplaces more trans-friendly
Another great way to support transgender employees is to make your workplace more trans-friendly.
There are so many changes employers can make. For example, aim to use gender fluid language throughout your company. That includes through written means, like emails and documents. But also in everyday conversation, too.
Hire from diverse talent-pools
It's beneficial for employers to hire candidates from all walks of life and backgrounds. Their unique views and skills are assets for any company.
Make an active effort towards hiring applicants from different backgrounds. Not just because it'll tick those 'diversity boxes'. But think about the kinds of experiences they'll bring to your team.
They'll also be able to present their community and share their stories. This not only helps to grow awareness, but other employees gain insight into worlds that might not be known to them.
Support all gender identities
When it comes to the LGBTQIA+ community, there's a range of identities used by their members.
So be inclusive and support all gender identities in your workplace. If you're unsure about where to start, ask your employees.
Some might be part of the group; others might be allies. Together, they'll be able to provide the best support, advice, and suggestions to promote trans inclusivity.
Your employees will appreciate the efforts you've taken to build a safe and supportive workplace. And they'll return their gratitude through high performance and business loyalty.
Do trans people need to have a Gender Recognition Certificate?
Trans people don’t need to have an official Gender Recognition Certificate to be trans. This is their own legal right and can identify as trans if they want.
This is covered under the Equality Act 2010. You also don't have to undergo a medical process to class as a transgender person. It includes those who haven’t done this, too.
Is transgender and transsexual the same?
No, a transgender person is not the same as a transsexual person.
People tend to stay away from the term 'transsexual'. Historically, it was used to describe trans people who had undergone gender reassignment surgery. But it wasn't seen in a positive light.
Transsexual people were thought to be 'medically ill' or 'sexually deviant'. It seems unfair to conclude this, just because a trans person identifies as a different gender given to them at birth.
But since then, things have changed, and the Gender Recognition Act 2004 now allows trans people to legalise their non-birth sex.
In 2016, a Women and Equalities Committee report argued against using ‘transsexuality’. People wanted to remove it from UK legislation because it was an outdated term. It also raised questions on how the act applies to transgender people in recent times.
In a workplace environment, it’s best to avoid using the word 'transsexual'. Unless a trans person says they use it to define their gender identity.
Get expert advice on gender reassignment discrimination with Peninsula
There isn't a 'one-size fits all' method when it comes to transgender identities. For employers, it's important to support trans rights. In the end, it turns into business loyalty, output, and success.
But if you fail to deal with gender reassignment discrimination, you could face huge costs. Like unlimited compensation, losing employees, and reputational damage.
Peninsula offers expert advice on dealing with gender reassignment discrimination. Our HR team offers unlimited 24/7 HR employment services which are available 365 days a year.
Want more information? Seek specialist advice from one of our HR advisors. For further information, call our telephone number 0800 028 2420.