Recent headlines below require an understanding of the law:
Transgender row makes waves in London park pond, The Times, 29 June 2018. The women’s pond on London’s Hampstead Heath has become a battleground in the debate about same-sex spaces after a decision earlier this year to allow trans women access;
Transgender people can continue to be denied access to some women-only spaces. Ministers say they have ‘no intention’ of changing law that allows single-sex toilets and changing rooms, Independent, 24 June 2018.
Transgender people are those whose gender identity does not match the gender they were assigned at birth.
Is the discrimination at work or in accessing goods, services or facilities?
At work: If the discrimination is at work, the relevant Equality Act 2010 provisions applicable are Part 5, sections 39 to 83.
Outside work: If the discrimination is in the context of goods, services and facilities, the relevant provisions of the Equality Act are Part 3, sections 28 to 31.
Definition of gender reassignment
Section 7(1) EqA 2010, a person has the protected characteristic of gender reassignment if the person is:
proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex
A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, is a reference to a transsexual person, section 7(2) EqA 2010.
A person can change gender without any medical intervention and medical processes are not essential to transitioning. It points out that some people choose not to, or cannot, undergo a medical process but are still trans.
People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment. (Paragraph 2.25 EHRC Code.)
Gender Recognition Certificate
A transsexual person who is at least 18 years old can apply for legal recognition of their acquired gender through issue of a gender recognition certificate, Gender Recognition Act 2004.
The application is made to the Gender Recognition Panel on the basis that the applicant has lived in their acquired gender throughout the preceding two years and intends to continue to live in their acquired gender until they die.
Section 9(1) provides for recognition of a person’s acquired gender once a full gender recognition certificate has been issued. The certificate does not have retrospective effect.
The certificate ensures that transsexuals cannot be excluded from single sex services.
Section 41 defines the protected characteristic of gender reassignment for the purposes of the Act as where a person has proposed, started or completed a process to change his or her sex. A transsexual person has the protected characteristic of gender reassignment.
Section 42 explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.
Section 43 defines by no longer requiring a person to be under medical supervision to come within the provisions of the Act.
By way of an example, this concept can be explained as follows:
A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act.
The law for transvestites
The law protects those “who make a commitment… to live permanently in their non-birth gender”, but not “transvestites or others who choose temporarily to adopt the appearance of the opposite gender”.
Protection for intersex and non-binary individuals
A birth abnormality of hormone imbalance and/or of the sex chromosomes may result in intersex individuals having the biological characteristics of both sexes. This means that their medical appearance at birth may be neither clearly male nor female. A gender is assigned to the individual at birth, which may differ from the gender identity of the individual in the future. Intersex is not specifically protected under the EqA 2010. However, they may also have additional medical needs or other related medical conditions and may be able to seek additional protection under the disability discrimination provisions in the EqA 2010.
A “non-binary” person is someone who considers themselves being:
neither male nor female, or
both male and female, or
take a different approach to gender entirely.
Definition of direct discrimination
Direct discrimination occurs where, because of gender reassignment, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), EqA 2010). Direct discrimination cannot normally be justified.
Protected characteristic of gender reassignment is expressly protected from direct discrimination in relation to absences from work because of gender reassignment. Under section 16(2), EqA 2010, a breach of direct discrimination may also occur where:
·The employer Treats the employee less favourably than it would have done had the employee been absent because of sickness or injury, or
·Treats the employee less favourably than it would have done had the employee been absent for some other reason and it was not reasonable for it to do so.
Comparator: An employee claiming direct gender reassignment discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs, section 23, EqA 2010.
Example of direct discrimination – Single-sex facilities
The Acas guidance agrees that the individual should be free to choose the most suitable facilities for their gender identity. Restriction to services to a single sex only requires a good cogent reason for doing so and that it is absolutely necessary to do so, i.e. a legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason.
Occupational requirement (OR). This can apply where, having regard to the nature or context of the work, not being a transsexual is an OR (paragraph 1, Schedule 9, EqA 2010).
Organised religion. Where the employment is for the purposes of an organised religion, an employer can apply an OR for an employee not to be a transsexual in order to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers (paragraph 2, Schedule 9, EqA 2010).
Armed forces. In certain circumstances, the armed forces may require an employee not to be a transsexual in order to ensure combat effectiveness (paragraph 4, Schedule 9, EqA 2010).