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Gender reassignment
[ch 7: pages 212-213]Someone 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). The EA 10 also uses the term “transsexual”).
There is protection from discrimination as soon as the person starts to live as a member of the opposite sex. There is no need for any medical procedure, or for the person to have sought or obtained a Gender Recognition Certificate. (This is a certificate that changes a person’s legal gender, entitling them to all the legal rights attaching to a person of that gender, for example, as to retirement pensions.)
The person is protected by the EA 10 even if they start, but later decide not to progress, the process of gender reassignment.
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. There were also other unpleasant incidents linked to her transgender status. The tribunal judge ruled that Primark was liable for constructive discriminatory dismissal and harassment. In particular, the store was criticised for failing to ensure that the internal shift management system kept the claimant’s birth name confidential. Because of this failure, 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
Transgender reform proposals
At the TUC Congress 2018, unions and the TUC unanimously supported government plans to reform the Gender Recognition Act 2004 (GRA 04) to introduce a process of gender self-declaration (where you declare your gender identity on a simple form which can be witnessed), as already happens in Ireland and some other EU member states. The reform plans follow an influential 2016 report by the Women and Equalities Committee: Transgender equality.
Gender recognition is the legal process of formally changing the legal gender on your birth certificate, used, for example, to access the state pension and benefits. The reform proposals, if implemented, will replace the current process, which is widely criticised as bureaucratic and medicalised. Existing hurdles include the need for two medical reports (one from a gender specialist), a fee and if the applicant is married, permission from a spouse. The decision whether to allow a change of gender is currently taken by a review panel that never meets the individual seeking to change their gender. Relatively few certificates have been issued, suggesting that this system is not working as it should.
The government consultation does not cover rights under the EA 10, so any changes to the GRA 04 will not alter the scope of the EA 10.