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Gender reassignment
[ch 7: pages 218-220]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. 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 the cause of 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 gender identity, outside the binary.
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”.
In its response, published in July 2016, the government has promised an updated Transgender Equality Action Plan and has agreed to keep under review the Committee’s concerns about the use of the term “gender reassignment” in the EA 10.
Meanwhile, the government response points out that a claimant need not have the protected characteristic to be protected under the EA 10. Discrimination takes place when someone is treated less favourably because of the protected characteristic. This means that “wider categories of transgender people, such as cross-dressers, non-binary and gender fluid people are protected if they experience less favourable treatment because of gender reassignment – for example, 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”, says the Response.
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/advice-and-guidance/gender-reassignment-discrimination)
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).