Gender reassignment discrimination

Thanks to the Gender Recognition Act 2004, anyone who has made a positive move to permanently change gender will have the same rights as anyone else of the new gender to which that person is changing. In addition to this, there is specific protection for those going through the gender reassignment process itself as the 2004 act provides for special time off for this, which is to be treated no less favourably by an employer than standard sick leave.

Gender Recognition Certificate

Under the 2004 legislation, a transsexual can obtain a Gender Recognition Certificate, which means that person can then marry in their new gender role and, if they wish to do so, apply for a new birth certificate from the place where their birth was originally registered. Once the Gender Recognition Certificate has been issued then that person has all the rights and responsibilities of someone of their new gender – including employment and pension rights. These rights exist from the moment the certificate is issued but not before and cannot be claimed retroactively.

Any pre-existing legal relationships – marriages or civil partnerships – need to be annulled before the Gender Recognition Certificate can be issued. However, where someone fulfills all the other requirements for a certificate (see below), other than being in a pre-existing partnership, an interim certificate can be issued for six months, which should allow enough time for the partnership or marriage to be annulled.

Requirements for a Gender Recognition Certificate

In order to obtain a Gender Recognition Certificate, a transsexual person will need to prove to a body called the Gender Recognition Panel that they have or have had gender dysphoria (essentially where someone feels they belong to the wrong gender) but there is no need for surgery to have been undertaken. Before applying for the certificate, it is necessary for someone to live in their new gender for at least two years and to prove to the Panel that they intend to live permanently in that role. Those under 18 cannot obtain a Gender Recognition Certificate.

Legal protection

The Equality Act 2010 (‘EA’) (and before that the Sex Discrimination Act 1975) makes discrimination – direct or indirect – victimisation or harassment in employment (or in the provision of goods and services), or in some situations after employment has ended (for example where a reference is requested) on the basis on gender reassignment, unlawful. This protection arises as soon as the gender reassignment is disclosed and applies to:

– Someone to intends to have, is having, or has had all or part of a gender reassignment process.

– Someone who is associated with another person who is going through, or has gone through, gender reassignment.

– Someone who is perceived to have gone through or be going through gender reassignment.

Direct discrimination is less favourable treatment received because of gender reassignment, resulting in a disadvantage for the person involved, compared to others who are not going through gender reassignment. A direct discrimination claim requires a real or hypothetical ‘comparator’ – someone whose life is ‘not materially different’ to that of the person making the claim, ‘but for’ the gender reassignment.The discriminatory treatment does not have to have been meted out consciously and so there is no need to prove a motive to establish direct discrimination. An example of direct discrimination would be where an employee is dismissed as a result of having been thought to have had gender reassignment.

Indirect discrimination in the workplace will result from a provision, criterion or practice that is applied generally to all employees – including the person making the discrimination claim – but that puts members of a transsexual group at a disadvantage compared to those who are not transsexual. The discriminatory practice must also put the person making the claim at a disadvantage, or would put them at a disadvantage.If a provision, criterion or practice can be objectively justified then it will not be found to be indirect discrimination. In order to be objectively justified, the provision, criterion or practice will need to be a proportionate way of accomplishing a legitimate aim that does not go further than it needs to and achieves a business need. An example of a generally applied provision, criterion or practice that could be indirectly discriminatory would be one that states that all ‘males’ must use the men’s toilets.

Victimisation covers those who are involved with a discrimination claim (under the EA or the Sex Discrimination Act) and are treated unfavourably for carrying out a ‘protected act.’ A protected act is something done in good faith, including bringing proceedings under the legislation, providing evidence or information relating to proceedings, making an allegation of discrimination, or doing anything in the light of the legislation to the person whose conduct is potentially discriminatory (or any other person). An example of victimisation would be where someone complains to an employer about discrimination and is then dismissed.

Harassment is conduct directed at someone that violates their dignity, or is intended to violate their dignity. This conduct must be unwanted and must be because of someone’s gender reassignment, a perceived gender reassignment, or because of an association with a transgender person. Harassing conduct will create an environment of hostility, offensiveness, intimidation, humiliation or degradation. Where there is harassment on more than two occasions by the same person (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent it happening again, the employer may be held responsible for the harassment.

Exceptions

If an occupational requirement exists for a role to be carried out by someone of a specific gender then there may be an exception to discrimination (for example where a role is at a rape crisis shelter, which may require a woman, rather than a transgender male-female). However, the issue of the Gender Recognition Certificate means that the person who has received the certificate is then viewed as someone of their new gender in the eyes of the law, which means they are protected from sex discrimination as anyone else of that gender would be.

Making a claim

A claim for discrimination on the basis of gender reassignment should be brought to an Employment Tribunal within three months less one day of the discriminatory treatment if a one off, or within three months less one day of the last day of the discriminatory treatment if it was ongoing. Although an Employment Tribunal can extend these time periods if it finds it just and equitable to do so, this is not done in every case. Where the subject of the claim is treatment before 6th April 2009, or ongoing through 6th April 2009, and an Employment Tribunal claim has been filed, there may be different rules to follow with respect to procedures and time limits.

If a claim is being made for discrimination in the provision of goods, facilities, services and access to facilities this is done via a County Court. The time limit here is six months less a day of the discriminatory conduct, or the last day of the conduct if it has been ongoing.

Before a claim for gender reassignment discrimination reaches an Employment Tribunal, both employer and employee should take care to ensure the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) is followed if necessary. There are some substantial penalties for both employers and employees who don’t follow the Code – for example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

In order to get a claim for discrimination on the basis of gender reassignment together, the person intending to make the claim can send the employer a questionnaire to obtain further information on the circumstances surrounding the discriminatory conduct. The timing of this should be before a claim has been filed with an Employment Tribunal or within 28 days of that date. Employers must take care to answer these questionnaires carefully, because a vague response – or no response – can be viewed as victimisation by an Employment Tribunal or Court, and such a body can infer unlawful discrimination from this.