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Gender reassignment discrimination

Overview

The Equality Act 2010 prohibits discrimination, harassment and victimisation relating to the protected characteristic of ‘gender reassignment’.

Gender reassignment covers a person who:

  • is proposing to undergo
  • is undergoing
  • or has undergone

a process, or part of the process, to reassign their sex by changing physiological or other attributes of sex.

Under the legislation, these individuals are referred to as a “transsexual person”.

There have been calls from Parliamentary Select Committees and Acas for the gender reassignment protected characteristic to be reformed, including amending the use of the term "transsexual". Currently, the government has not announced any intention to reform the legislation.

Use our 'How to' guide on supporting gender reassignment in the workplace for key tips on making your organisation more inclusive.

Recent developments: 

Gender fluid/non-binary employee ruled to be protected

An employment tribunal (ET) has found that a gender-fluid/non-binary individual is covered by the gender reassignment provisions of the Equality Act. This is the first time that this issue has been decided on by a tribunal. 

In this case, an employee began to identify as gender fluid/non-binary and claimed they were subjected to harassment and discrimination on the grounds of their gender reassignment. The organisation claimed that gender fluidity/non-binary did not fall within the definition of gender reassignment. However, the tribunal noted that there is a ‘gender spectrum’ and the claimant had undergone a process of moving their gender identity away from their birth gender, which means it fell within the gender reassignment definition.

As an ET decision, this is not binding and therefore does not represent a definitive change in legal stance. It does however, bring the cause of a number of individuals with gender complexities to the fore and, going forward, there may be an increase in demand for organisations to acknowledge it.

Please refer to our article for more information.