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Gender reassignment
[ch 7: pages 193-195]A person has the protected characteristic of gender reassignment if he or she is proposing to undergo, is undergoing or has 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. There is no need for the process to be a medical procedure. 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 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
Gender reassignment has implications for gender-related state benefits, in particular the state pension. To change gender for legal purposes requires a Gender Recognition Certificate. Following a change to the law under the Marriage (Same Sex Couples Act) 2013, from 10 December 2014 it is no longer always necessary to end a marriage or civil partnership to obtain this Certificate. For more information visit the GOV.UK website: Applying for a Gender Recognition Certificate (https://www.gov.uk/apply-gender-recognition-certificate/overview).
The 2015 Transgender Inquiry
In January 2016, the government’s Women and Equalities Committee published its Transgender Equality Inquiry report. The report’s thirty recommendations include many that concern employment. The Committee heard evidence that by including “gender reassignment” in the list of protected characteristics, the EA 10 had made an “appreciable difference” to the lives of trans people. However, witnesses criticised the terms used in the EA 10 to describe “transgender” as outdated and resulting in widespread confusion among employers. For example, some employers 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 extent to which the EA 10 protects individuals with broader kinds of trans identity.
The report recommends changing the description of the protected characteristic in the EA 10 to protect against discrimination on grounds of a person’s “gender identity”. The report is available on the publications.parliament.uk website.
Advancing Transgender Equality — a plan for action, Home Office, December 2011 (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85498/transgender-action-plan.pdf).
Transgender Equality Inquiry website with published resources, 2015-16 (https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2015/transgender-equality).
Transgender Equality page of the Equality and Human Rights Commission website (https://www.equalityhumanrights.com/en/trans-inequalities-reviewed).
Resources of the campaigning group Press for Change (www.pfc.org.uk).
In November 2015, the government Equalities Office produced a new guide: Recruitment and retention of transgender staff, available from its website (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/484855/The_recruitment_and_retention_of_transgender_staff-_guidance_for_employers.pdf).