Discrimination on the ground of gender reassignment under the Equality Act 2010

What does the Act prohibit?

The Equality Act 2010 prohibits discrimination (whether direct or indirect), harassment and victimisation on the ground of a person’s gender reassignment.

What is direct discrimination?

Direct discrimination occurs where a person treats another person less favourably than he or she treats or would treat others on grounds of gender reassignment.

What is indirect discrimination?

Indirect discrimination occurs where a provision, criterion or practice puts persons whose gender has been reassigned at a disadvantage.

Conduct which can be shown to be a proportionate means of achieving a legitimate aim is, however, permitted.

What is harassment?

Harassment occurs where a person is subjected to unwanted conduct related on grounds of their gender reassignment which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

What is victimisation?

Victimisation occurs where a person is subjected to a detriment by reason of the fact that he has (or it is believed that he has or may) carried out one of the following acts:

  • brought or given evidence or information in proceedings brought under the Act;

  • the doing of something for the purposes of or in connection with the Act.

  • made an allegation that a person has contravened the Act.

However, the giving of false evidence or information, or the making of a false allegation is not protected by the Act if it is given or made in bad faith.

Who does the Act protect?

The Act protects persons who are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. The process need not involve a medical procedure. A man who decides to live permanently as a woman will, therefore, be protected. Such persons are commonly referred to as transsexuals.

A person who cross-dresses but does not intend to live permanently as a member of the opposite sex will not be protected by the Act. However, if they are wrongly perceived to be a transsexual they will be protected by the Act if they are discriminated against, harassed or victimised by reason of the misperception.

Persons associated with transsexuals, for example their relatives and partners are protected by the Act.

In what circumstances does the Act apply?

The Act protects transsexual people from discrimination, harassment and victimisation in various areas, such as in the workplace and in relation to the provision of goods and services.

Employment

The Act applies to all aspects of employment including recruitment, terms and conditions of employment, training, promotions and transfers, dismissals, redundancy and retirement.

Where a person is absent from work due to gender reassignment their employer is prohibited from treating their absence any differently from an absence for sickness or injury or other reason. However, this does not mean that transsexuals can take any amount of time off work as if they are absent for a long period of time they may be retired on the ground that they are medically unfit for work.

Employers are still able to discriminate against their employees on grounds of gender reassignment where such discrimination is a proportionate means of achieving a legitimate aim. For example, it may be legitimate for an employer not to recruit transsexuals as rape counsellors as this may cause rape victims further distress.

The Act applies to contract workers, partners of firms and anyone in vocational training as well as employees.

Other areas of protection

The Act also protects transsexuals in schools, further and higher education institutions, private clubs and in their dealings with service providers and those exercising a public function.

Generally there will need to be exceptional reasons for discriminating against a transsexual person in relation to public toilets, single-sex hospital wards and single-sex hostels.

From April 2011 public bodies will be required to advance equality of opportunity for transsexual people.

How is the Act enforced?

Where a provision of the Act is contravened proceedings can be brought through the Civil Courts. If the claim arises out of the employment of a person a claim can be brought in an Employment Tribunal.

A wide range of remedies are available to the Civil Courts and Employment Tribunals including the power to award compensation for injured feelings and to make recommendations to reduce discrimination in the workplace.

Normally claims brought in the Civil Courts will have to be brought within 6 years of the date of the act to which the claim relates and within 3 months in the case of claims brought in an Employment Tribunal.