Help & Advice - Transgender and transsexual

This page provides an overview of the laws which protect transsexual people in the workplace and society as a whole. The Discrimination Law Review (DLR) which was launched in February 2005 to consider “the opportunities for creating a clearer and more streamlined equality legislation framework which produces better outcomes for those who experience disadvantage …while reflecting better regulation principles" ultimately led to the enactment of the new Equality Act in October 2010. The Act's public sector equality duty is due to come into effect in April 2011.

The Equality Act 2010

The law has brought together under a single statutory instrument much of the previous legislation and lawmaking which was previously covered in the other Acts listed further down this page.

If you’re a transsexual person the new law could help you if:

• you’ve changed your sex
• you’re in the process of changing your sex, or
• you have simply told someone that you are planning to change your sex.

Under the new law, you’ll no longer have to be under medical supervision to be protected from discrimination and harassment. You mustn’t be discriminated against or harassed at school or by someone exercising a public function, such as policing, because you’ve started the process of changing your sex. You’ll also be protected from direct discrimination as a result of being associated with someone who is transsexual, for example if you’re their partner; or if you are discriminated against by someone because they think you are a transsexual, even if you aren’t. In addition, you’ll also be protected from indirect discrimination, where a rule, policy or practice particularly disadvantages transsexual people
and can’t be justified, and from discrimination as a guest or member in a private club. 

In regard to transgender equality issues, the Equality Act 2010 provides the following:

• In the Equality Act 2010 ‘gender reassignment’ is named as an explicit protected characteristic, alongside age, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
• The requirement for medical supervision to take place as part of a process of 'gender reassignment' has been removed so someone who simply changes the gender role in which they live without ever going to see a doctor is protected.
• All the main protections already existing for gender reassignment are carried over from the previous Sex Discrimination Act legislation – e.g. protection from gender reassignment discrimination in employment and goods and services. The existing exceptions are also carried over.
• The Equality Bill offers new protection from discrimination due to association with transsexual people or perception as a transsexual person.
• It also offers new protection from indirect discrimination because of gender reassignment.
• The public sector equality duty is extended to more fully include gender reassignment as one of the specific protected characteristics for which public bodies must take due regard of: the need to eliminate discrimination, harassment and victimisation; the need to promote equality; and the need to promote good relations.
  Protection is provided for gender reassignment discrimination in education.

Sex Discrimination Act 1975

The Sex Discrimination Act (SDA) provides legal protection on many grounds, including:

• On the grounds of sex (i.e. male or female) and;
• On the grounds of gender reassignment.

People who intend to undergo, are undergoing or have undergone gender reassignment are protected against discrimination and harassment, on the grounds of gender reassignment, in employment and related areas and vocational training (including further and higher education). This covers all aspects of employment, including recruitment and selection processes, employment-related benefits, and facilities, including training, career development and references.

Individuals who take a claim for sex discrimination under the SDA are considered to be their birth sex unless they have received a gender recognition certificate. A transsexual person with a gender recognition certificate has protection in all areas covered by the SDA in his or her recognised gender and will also have protection for gender reassignment.

Some examples of discrimination on the grounds of gender reassignment may include:

• Refusing to associate with or ignoring someone because they are transsexual
• Refusing to address the person in their acquired gender or to use their new name
• Probing into the person's private life and relationships
• Spreading malicious gossip about that person
• Failing to keep confidential information about that person's transsexual status
• Indefinite refusal to allow use of sanitary facilities appropriate to their gender after a reasonable transition period
• Treating that person less favourably than others in regard to sickness or other absences

Gender Recognition Act 2004

The Gender Recognition Act (GRA) gives legal recognition in their acquired gender to transsexual people. They must satisfy the Gender Recognition Panel that they:

• Have or have had gender dysphoria, and
• Have lived in the acquired gender for a period of two years prior to the application, and
• Intend to live permanently in the acquired gender
• Have provided medical reports containing specified information.

If their application is successful, the transsexual person's gender becomes for all purposes the acquired gender and they will receive a full gender recognition certificate (GRC). The GRA allows for the creation of a modified birth certificate reflecting the holder's new gender.

In specified circumstances the GRA prohibits disclosure of the fact that someone has applied for a GRC or disclosure of someone's gender prior to the acquisition of the GRC. Such disclosure constitutes a criminal offence liable to a fine.

Equality Act 2006

The Equality Act 2006 amends the Sex Discrimination Act 1975 to place a statutory duty on all public authorities, when carrying out their functions, to have due regard to the need:

• To eliminate unlawful discrimination and harassment
• To promote equality of opportunity between men and women

As part of the duty, public authorities are required to have regard to the need to eliminate discrimination and harassment in employment and related fields and vocational training (including further and higher education), for people who intend to undergo, are undergoing or have undergone gender reassignment.

Data Protection Act 1988

Under the Data Protection Act 1988, transsexual identity and gender reassignment would constitute 'sensitive data' for the purposes of the legislation and must be processed as such. For more information on data protection, please consult the Information Commissioner's website.

Goods and Services Directive 2004/13

The scope of the legal protection against discrimination on grounds of gender reassignment will be extended within the SDA by the implementation of the Goods and Services Directive. This will be implemented by 21st December 2007 at the latest. From the date of implementation public authorities will be under a duty to have due regard to the need to eliminate unlawful discrimination and harassment on grounds of gender reassignment in the provision of goods, facilities and services and the disposal and management of premises.

The gender equality duty and transsexual people

The gender equality duty places on public authorities, when carrying out their functions, to have due regard to the need:

• to eliminate unlawful discrimination and harassment
• to promote equality of opportunity between men and women.

Known as the general duty, this places on public bodies an obligation to pay due regard to the need to address and eliminate the unlawful discrimination and harassment of transsexual people in employment, related fields and vocational training (including further and higher education). As a matter of good practice, however, the EOC recommends that public authorities consider applying this obligation to the provision of goods, facilities and services and disposal and management of premises as well. As stated above, the gender duty will be extended to cover these areas in any event when the Goods and Services Directive is implemented by December 2007.

The definition of "transsexual" used in the gender equality duty is the same as that in the SDA, but it is recommended as good practice that you apply any provisions for transsexual people to those who define as transgender as well.

Those public bodies listed in the Code of Practice are further required to comply with the specific duties. In summary, these duties are:

• To prepare and publish a gender equality scheme, setting out gender equality objectives.
• In formulating overall gender equality objectives, to consider the need to include objectives to address the causes of any gender pay gap.
• To gather and use information on how the public authority's policies and practices affect gender.
• To consult stakeholders and take account of relevant information in order to determine its gender equality objectives.
• To assess the impact of current and proposed policies and practices on gender equality.
• To implement the actions set out in the scheme within three years, unless it is unreasonable or impracticable to do so.
• To report against the scheme every year and review the scheme at least every three years.

Public authorities will need to consider having an equality scheme objective relating to transsexual employees (and from December 2007, transsexual service users) to comply with the specific duties. When consulting with stakeholders, the EOC recommends that public authorities specifically target trans advocacy groups to ensure that the needs of the trans community are taken into account when developing policy and gender objectives. Public authorities will need to assess the impact of their policies and practices on trans people in order to determine whether they have a discriminatory effect – you may not realise that your policies may be indirectly discriminating unless you conduct an impact assessment.