Gender Reassignment Discrimination Solicitors
Our employment law team have considerable experience in advising employees on the law relating to gender reassignment discrimination, including unfair treatment, harassment and victimisation. In some cases, an obvious comment, which has been witnessed, may lead to a claim. But discrimination is often more subtle and difficult to prove. Therefore, advice should be sought from specialist solicitors in this area.
IBB Solicitor’s employment law team can provide clear, practical guidance on all areas of unlawful discrimination. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.
What is gender reassignment discrimination?
The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
Whether you are an employee, a worker (engaged under a contract personally to execute work or labour), or a contractor (whose labour is supplied by your employer to another person) you are legally protected. You have rights whatever your length of service and whatever hours you work.
Gender reassignment is defined in the EqA as:
- proposing to undergo
- is undergoing
- has undergone
a process (or part of a process) to reassign the person’s sex by changing physiological or other attributes of sex.
A reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person and can be from man to woman or woman to man.
A transgender person may identify as transsexual if they desire medical assistance to transition from one sex to another. Transgender people are those whose gender identity does not match the gender they were assigned at birth. A transgender person may undergo the process of aligning their life and physical identity to match their gender identity, which is referred to as transitioning. Proposing to undergo gender reassignment does not require such a proposal to be irrevocable. A person who starts the gender reassignment process but then decides to stop still has the protected characteristic of gender reassignment.
A transsexual person who is at least 18 years old can apply for legal recognition of their acquired gender by applying for a gender recognition certificate to the Gender Recognition Panel. This is done on the basis that the transsexual person has lived in their acquired gender throughout the preceding 2 years and intends to continue to live in their acquired gender until they die. Once a full gender recognition certificate has been issued that person will a member of their acquired gender.
Legal protection against gender reassignment discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.
What is direct gender reassignment discrimination?
Direct gender reassignment discrimination occurs where because of your gender reassignment, you are treated less favourably than a person who is not proposing to undergo, is not undergoing or has not undergone gender reassignment.
Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
- a saleswoman informs her employer that she intends to spend the rest of her life living as a man. Because of this, she is demoted to a role without client contact.
In claiming direct gender reassignment discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.
The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?
For the purposes of establishing direct gender reassignment discrimination, it does not matter whether you have the protected characteristic in question it can be perceived gender reassignment. Nor does it matter whether you are a transsexual it can be by association.
- an employer treats an individual less favourably because it perceives that the employee is of a certain gender e.g. the employer thinks that the employee is a man when she is actually a woman
- an employer treats an individual less favourably because of the gender reassignment of someone with whom the employee associates e.g. because the employee’s wife has undergone gender reassignment.
Direct discrimination will also occur if your employer instructs, causes or induces another to commit gender reassignment discrimination. It will also commit an infringement if it causes detriment to you because e.g. you refuse to obey an instruction to act in a way that would disadvantage persons transsexual.
Your employer will also commit direct discrimination if, in relation your absence from work because of gender reassignment, it:
- treats you less favourably than it would have done had you been absent because of sickness or injury
- treats you less favourably than it would have done had you been absent for some other reason and it was not reasonable for it to do so.
Direct gender reassignment discrimination cannot be objectively justified, but your employer might be able to rely on an exception, perhaps by pointing to an occupational requirement to avoid liability.
What are occupational requirements?
The EqA sets out occupational requirement exceptions an employer might rely on when facing discrimination claims in respect of recruitment, access to promotion, transfer or training, or dismissal. Those relevant to transsexuals are:
General occupational requirement – this is available where, having regard to the nature or context of the work, not being a transsexual is an occupational requirement.
Organised religion – this can apply where the employment is for the purposes of an organised religion. To comply with the doctrines of religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers, your employer might apply an occupational requirement that you are not a transsexual person.
Armed forces – the armed forces may require that you are not a transsexual person in order to ensure combat effectiveness.
What is indirect sexual orientation discrimination?
Indirect direct gender reassignment discrimination occurs where:
- your employer applies to you a provision criterion or practice (PCP)
- you are a transsexual (proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of gender reassignment)
- your employer applies (or would apply) that PCP to persons who are not transsexual
- the PCP puts or would put you at particular disadvantage when compared to other persons who are not transsexual
- your employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
There will be no indirect discrimination if your employer’s actions are justified. To establishing justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer.
In other words, indirect gender reassignment discrimination occurs where your employment is subject to an unjustified condition which because of your gender reassignment, you find more difficult to meet.
- an employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transsexual woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in. It would be no defence that it did not occur to the employer that this worker may feel disadvantaged by the requirement to disclose such information.
In determining whether there has been a detriment, it will be necessary to establish a pool of people for comparison on a like-for-like basis of those that have and have not been affected by the PCP.
What is gender reassignment harassment?
Harassment occurs for a reason related to your gender reassignment if the conduct is unwanted and has the purpose or effect of:
- violating the person’s dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment will also occur where you submitted to or rejected harassment related to your gender reassignment because of your rejection of or submission to the conduct, your employer treats you less favourably than it would treat another person if that person had not rejected or submitted to the conduct.
Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.
Your employer will be able to avoid liability for harassment if it can show it took reasonably practical steps to prevent it happening.
What is victimisation?
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
- brought claim under the EqA
- gave evidence or information in connection with a claim under the EqA
- did any other thing for the purposes of or in connection with the EqA
- alleged that your employer or another person has committed an act that contravenes the EqA.
Less favourable treatment means a detriment (see above).
What remedies are available for gender reassignment discrimination?
If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.
Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial losses because of the discrimination.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the EqA relating to gender reassignment discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see our page Acas early conciliation.
Contact our specialist gender reassignment discrimination solicitors today
IBB Solicitor’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
Contact our specialist gender reassignment discrimination solicitors today on 03456 381381 or email your details to firstname.lastname@example.org.