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Gender reassignment
[ch 7: pages 199-200]A person has the protected characteristic of gender reassignment if they 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 (section 7, EA 10). They are protected from the moment they start to live as a member of the opposite sex. For example:
A person born physically female decides to spend the rest of his 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 be protected as someone who has the protected characteristic of gender reassignment.
EHRC Code of Practice on Employment
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf
The person is protected by the EA 10 without a need for any medical procedure, or for the individual to have sought or been granted a gender recognition certificate under the Gender Recognition Act 2004.
The person is protected by the EA 10 even if they start but later decide not to progress the process of gender reassignment:
A person born physically male lets her friends know that she intends to reassign her sex. She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex.
EHRC Code of Practice on Employment
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf
In 2018, an employment tribunal found high street retail store Primark liable for transgender harassment and discrimination:
The claimant had been transgender for 16 years before joining the Oxford Street branch of Primark as a till operator. She was bullied by staff and supervisors who repeatedly and deliberately called her by a male instead of a female name. In particular, a co-worker described her as having “evil” inside her; another told a visiting contractor there were no women in the ladies toilets despite knowing the claimant was still in there; another described her as smelling “like a men’s toilet” while spraying perfume over her, and of having a “man’s voice”.
Primark failed to investigate the allegations properly, instead uncritically accepting the evidence of the bullies, who corroborated their respective accounts. Primark also breached the Acas Code and its own grievance procedure by failing to communicate the outcome of the claimant’s grievance and her right of appeal. Eventually she resigned.
Ruling that the store was liable for constructive discriminatory dismissal and harassment, the tribunal judge criticised Primark for failing to operate an internal shift management system that kept the claimant’s birth name confidential, with the result that eventually the whole store learned of her transgender status, leading directly to the bullying. The judge made a series of recommendations to improve Primark’s ability to protect transgender staff and awarded compensation of £47,433, including a 25% uplift for breach of the Acas Code and an injury to feelings award of £25,000.
De Souza v Primark Stores Limited Central London ET Case No. 2206063/2017
2015-16 Transgender Inquiry — reform proposals
In January 2016, the government’s Women and Equalities Committee published its Transgender Equality Inquiry report. The report recommended changing the description of the transgender protected characteristic in the EA 10 to refer to discrimination because of someone’s “gender identity”. This was after hearing evidence of widespread confusion among employers about the term “transgender”, including some employers who mistakenly believe that only those who undergo medical “gender reassignment” treatment, or only those with a gender recognition certificate, are protected. There is also a lack of clarity over the protection from discrimination of people with broader kinds of gender identity, outside the binary.
In its response, published in July 2016, the government promised a review of the law, including the use of the term “gender reassignment” in the EA 10. The government response also points out that: “wider categories of transgender people, such as cross-dressers, non-binary and gender fluid people are protected [by the EA 10] if they are incorrectly perceived as undergoing gender reassignment when in fact they are not, or incorrectly perceived to be male or female, perhaps because they do not comply with what society normally expects of men or women”.