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- 7 September 2020
Gender Reassignment Discrimination
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As an employer, it is illegal to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.
Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination .
This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.
What is gender reassignment discrimination?
Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.
The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.
To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.
What is the law on gender reassignment discrimination?
The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised , because of one or more of the nine protected characteristics , where gender reassignment is one of these.
All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.
To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.
Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.
What employment protections do transsexual employees have?
Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:
- Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
- Indirect discrimination : where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
- Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.
The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.
Examples of gender reassignment discrimination
Direct gender reassignment discrimination.
Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.
Direct discrimination also covers the following scenarios:
- Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
- Discrimination by association : where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.
Indirect gender reassignment discrimination
Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.
An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.
Harassment because of gender reassignment
The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.
It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.
As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.
This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.
Victimisation because of gender reassignment
This is where someone at work is subjected to a detriment because they have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment.
A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.
What are the special protections relating to absences from work?
Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.
This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.
For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.
This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.
Can gender reassignment discrimination ever be justified?
Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified , as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.
The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.
In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.
Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.
It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action .
What are the consequences of gender reassignment discrimination?
If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.
The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.
The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:
- A declaration setting out the rights of the parties
- An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
- A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace
How can employers prevent gender reassignment discrimination?
Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.
These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.
In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR , we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts .
Gender reassignment discrimination FAQs
Gender reassignment discrimination takes place when someone is treated unfairly on the basis of their actual or proposed gender reassignment. The unfair treatment could be a one-off action or a blanket workplace rule or policy that puts a transsexual or trans person at a particular disadvantage.
What are the different types of gender reassignment discrimination?
There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.
What discrimination rights do trans employees have?
Trans employees have the right not to be treated less favourably at work, put at a disadvantage, or harassed or victimised, because they are transsexual, or perceived to be or connected with someone who is trans.
Last updated: 7 September 2020
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Gender Reassignment Discrimination
Health Assured team
15 September 2021
Every transgender employee is legally protected from discrimination.
This doesn't only apply to people undergoing reassignment or possess a Gender Recognition Certificate. It covers anyone who uses the term - in any way, shape, or form.
Employers must protect their staff from gender reassignment discrimination. If not, you may face discrimination claims, lose staff, and pay compensation.
In this guide, we’ll look at what gender reassignment discrimination is. We’ll also look at what the Equality Act says and how to stop unfair treatment towards trans people.
What is gender reassignment discrimination?
Gender reassignment discrimination is when someone is treated unfairly because they're transgender.
But first, let’s look at what the term, 'gender reassignment' means. This is when a person feels that their gender identity is inconsistent with the one assigned to them at birth.
Many transgender people experience gender dysphoria and choose to transition to help them feel more comfortable in their daily lives.
A person doesn’t need to undergo a medical process to class as ‘ trans’ . It applies equally to those on their own personal process or journey.
If an employee is trans, they’re protected from discrimination based on gender reassignment.
What does the Equality Act say about gender reassignment?
The Equality Act 2010 covers a lot of the legal rights that apply to transgender people.
Trans rights are covered by the law on gender reassignment. That’s because it’s one of nine ‘ protected characteristics’ under the Equality Act 2010.
Transgender employees are also protected from:
- Pregnancy and maternity discrimination.
- Marriage and civil partnership discrimination.
- Sex discrimination .
- Sexual orientation discrimination .
Through the Equality Ac, trans people should receive these rights. Regardless of whether a person will undergo treatment to change their gender or not. If an employee says they’re trans, they’re protected from discrimination.
Raising a gender reassignment discrimination claim
Any transgender employee can raise a claim based on gender reassignment discrimination.
The transgender community faces all sorts of abuse and prejudice both in their personal and work lives. If a trans employee believes they were unfairly treated, they have a right to raise the issue.
Usually, these claims would be sent to an Employment Tribunal. A panel will hear at the case and view the evidence. In the end, they will decide if the employer is ‘ liable’ .
Unlawful discrimination based on gender reassignment can be seen in work practices and attitudes. The discriminatory act doesn’t only have to come from the employer.
If an employment tribunal claim is upheld, you could face serious costs. They could force you to pay expensive compensation and legal fees. When your business goes through hearings, it can ruin your reputation for good.
This protected characteristic applies to both full and part-time contract workers. It also includes job applicants and self-employed people, too.
Is gender reassignment discrimination ever allowed?
There are certain circumstances where gender reassignment discrimination may be allowed.
It’s called 'objective justification'. This is when an employer has a good reason behind their discriminatory acts.
Employers must show a ‘proportionate means of achieving a legitimate aim'. Meaning, they need to give a good reason for why they’re treating an employee differently.
For example, you can’t hire a trans person for an ' organised religion ' role. (Because it goes against your religious beliefs).
Employers cannot justify their actions themselves. Only a tribunal judge can say whether their reasoning classes as discrimination or not.
Otherwise, the employer will have ' vicarious liability ' over their act.
Different types of gender reassignment discrimination
There are several types of discrimination that cover gender reassignment.
Let’s look at into each one in depth:
Direct gender reassignment discrimination
Direct discrimination is the most common form that’s found. This is when someone experiences less favourable treatment due to their ‘ protected characteristics’ .
Most trans people will have faced direct gender reassignment discrimination at some point in their lives. It may be a one-off incident or a regular issue that occurs in their personal or working lives.
All trans employees are protected from direct discrimination regardless of their legal gender identity status.
An example of direct discrimination would be an employee (who was born female) decides to share their gender reassignment process. They talk about wanting to spend their life living as their chosen gender.
Certain colleagues don’t receive this well. They start making rude comments and excessive criticism. Because of the direct discrimination, the employee is left feeling too scared to come to work.
Indirect gender reassignment discrimination
Indirect discriminatio n is when you’re treated differently because of a workplace rule or practice.
Indirect gender reassignment discrimination can affect one person or a whole group. When a work rule separates people like this, it can ruin employee morale and motivation.
Indirect discrimination can be justified to a tribunal. However, you’ll need to prove your actions were justified and legitimate.
For example, a trans worker asks for paid leave to attend gender reassignment surgery. The business views this as a personal appointment, not a medical one. Rejecting their leave could be a form of direct or indirect discrimination.
Gender reassignment harassment
Harassment is when a person faces unwanted conduct or behaviour. It can make them feel unsafe and violate their dignity.
It’s quite hard to define harassment or bullying. People can be harassed by accident or on purpose. But in the end, it always leaves them feeling uncomfortable.
Gender reassignment harassment can be found in verbal and physical forms. For example, an employee receives trans-phobic jokes through a work email.
You can’t control harassment that comes from customers or the public. But you should do your best to protect trans employees from facing it at work.
Gender reassignment victimisation
Victimisation is when a person is treated unfairly because they made a complaint.
For example, a manager uses abusive language about transgender workers. They find out an employee complained about them. So, they start to create a hostile, offensive environment around them.
Here, there are no transgender workers involved however, it still counts as gender reassignment victimisation. It doesn't matter who raised the issue. If a person is bullied for raising a complaint, it counts as victimisation.
Gender reassignment discrimination by perception
Trans workers are also protected from gender reassignment discrimination by perception.
This is when you ‘ think’ a person has certain protected characteristics – but you don’t know for sure.
For example, you have employees who occasionally cross-dress or are gender variant. You cannot guess their gender. And they can't be treated unfairly because you think they’re trans.
How to stop gender reassignment discrimination
The transgender community has faced discrimination for decades.
The workplace is a great place to grow education and awareness. Starting here can help spread the right message to all pockets of society.
Let’s look at ways to support employees who are trans:
Create an equality and diversity policy
Every business has rules that everyone must follow – even the boss.
So, start by creating an equality and diversity policy. The policy shows how your business aims to treat all employees fairly.
It should include equal rights for all regardless of what a person's sex or gender is. It can also show zero-tolerance for derogatory trans-phobic terms and discrimination.
Through your policy, trans workers will feel safe and supported.
Use gender-inclusive language
In today’s society, people use lots of different gender terms and identities.
Not all trans people label themselves as ‘men’ or ‘women’ . It’s best to ask them what pronouns they use.
For example, a transgender worker states they are non-binary. They use ‘they/them’ pronouns, as they're gender fluid.
Gender-inclusive language is forever evolving. If employees present their preferred gender pronouns, you should only use them.
Offer training on transgender awareness
All employees should be given training on transgender awareness. This can range from offering presentations to reading material.
Not everyone interacts with transgender people on a daily basis. That’s why transgender awareness is so important. All employees get to learn how to avoid discrimination and support trans workers.
Along with training, employers can make practical changes to their workplace. For example, changing single-sex services (like bathrooms. They could add another bathroom for those who don’t class themselves as men or women.
Hire a diverse workforce
Hiring a diverse workforce is the easiest way to end discrimination in the workplace.
So, let’s turn this to the transgender community. If you employ a trans person, it can grow a culture of understanding and respect.
Employees will be able to interact with new people and experience new ideas and perspectives. And in return, trans workers gain better work experience and opportunities.
Be inclusive and hire a diverse range of employees. You’ll soon be able to see your business grow in so many ways.
Support all gender identity
Maybe you already employ transgender people in your workplace.
You should have talks with them and ask how you can best support them. Start collecting ideas for changes you can make to your workplace.
For example, you can ask them about trans inclusive language. Maybe they could help you rewrite paperwork and statements.
In the end, these efforts can help trans workers feel supported and valued.
Is transgender and transsexual the same?
No, a transgender person is not the same as a transsexual person.
Transsexual is a word that isn’t openly accepted anymore. In the past, transsexual people went through surgery to suit their non-birth gender.
But the term didn’t stop there. People also used it to describe trans people as, ‘ medically ill’ or ‘sexually deviant’.
The Gender Recognition Act 2004 is a law relating to gender dysphoria. It allows people to legally change their birth sex to a different gender.
But in 2016, a Women and Equalities Committee report argued against using ‘transsexuality’ . They said it should be removed from laws (like the Equality Act) because it was outdated. It also raised questions on who the act applies to.
In the workplace, it’s best to avoid using transsexual altogether. Unless a person specifically uses it themselves.
Get expert advice on gender reassignment discrimination with Health Assured
Health Assured’s EAP ( Employee Assistance Programme ) can help support your business with gender reassignment discrimination
With a huge number of certified counsellors and wellbeing specialists, we can help support transgender employees through challenging times.
We also offer a confidential whistleblowing service that allows transgender employees to raise workplace issues privately.
Arrange a call back from a workplace wellbeing expert today on 0800 206 2551.
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Gender reassignment is a protected characteristic and the term refers to someone who is transgendered. It includes anyone who has proposed, started or completed a process to change his or her sex. The Equality Act extends pre-existing protections for transsexual people by, for example, prohibiting indirect discrimination and removing the need for a transsexual person to be under medical supervision to benefit from legal protection. In employment, the Act also requires organisations to treat absences from work because someone proposes to undergo, is undergoing or has undergone gender reassignment in the same way or better as absences due to illness or injury.
There is limited data on the number of transgendered people working or studying in the University. It is believed that there are likely to be more transgendered people in higher education than in the population at large.
- A colleague who was born female decides to spend the rest of his life living as a man. He tells his departmental administrator, who makes appropriate arrangements. He then starts life at work and home as a man. After discussion with his doctor and a Gender Identity Clinic, he begins hormone treatment and several years later he has gender reassignment surgery. In this case he would be protected by the gender reassignment provisions of the Equality Act. His departmental administrator should seek guidance from the School's Human Resources Business Manager who will be able to provide support in managing the transition process.
- A student who was born physically male decides to spend the rest of her life as a woman. She starts and continues to live as a woman. As she successfully ‘passes’ as a woman, the student decides that she does not want to seek medical advice nor undergo any medical procedure/treatment. She would similarly be protected by the gender reassignment provisions of the Equality Act.
Support is provided to Transgender staff members of the University, College or associated institution through the LGBT Staff Network.
Support for Transgender Students is provided by the CUSU LBGT Campaign .
The University has produced Guidance on Gender Reassignment for Staff which provides information on good practice to support staff and institutions in implementing the University's Equal Opportunity Policy in relation to gender reassignment.
The University has produced Thinking Globally , which provides information for LGB&T staff and students working and studying at home and abroad.
Additional information and guidance is available from the Equality and Diversity Section.
The ECU has produced revised guidance on Trans Staff and Students in Higher Education .
The University has produced a glossary to explain terms related to gender reassignment.
Find out about Trans rights in Europe
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What is on this page?
What is sexual orientation discrimination, what the equality act says about sexual orientation discrimination, different types of sexual orientation discrimination, circumstances when being treated differently due to sexual orientation is lawful, who is this page for.
- individuals using a service
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Which countries is it relevant to?
This is when you are treated differently because of your sexual orientation in one of the situations that are covered by the Equality Act .
The treatment could be a one-off action or as a result of a rule or policy based on sexual orientation. It doesn’t have to be intentional to be unlawful.
There are some circumstances when being treated differently due to sexual orientation is lawful, explained below.
The Equality Act 2010 says you must not be discriminated against because:
- you are heterosexual, gay, lesbian or bisexual
- someone thinks you have a particular sexual orientation (this is known as discrimination by perception)
- you are connected to someone who has a particular sexual orientation (this is known as discrimination by association)
In the Equality Act, sexual orientation includes how you choose to express your sexual orientation, such as through your appearance or the places you visit.
There are four main types of sexual orientation discrimination.
This happens when someone treats you worse than another person in a similar situation because of your sexual orientation. For example:
- at a job interview, a woman makes a reference to her girlfriend. The employer decides not to offer her the job, even though she is the best candidate they have interviewed
- a hotel owner refuses to provide a double bedroom to two men
Indirect discrimination happens when an organisation has a particular policy or way of working that applies to everyone but which puts people of your sexual orientation at a disadvantage.
Indirect discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as objective justification .
Harassment in the workplace occurs when someone makes you feel humiliated, offended or degraded. For example:
- colleagues keep greeting a male worker by the feminine version of his name although he has asked them to use his proper name. The colleagues say this is just banter but the worker is upset and offended by it
Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.
Outside the workplace, if you are harassed or receive offensive treatment because of your sexual orientation, this may be direct discrimination.
This is when you are treated badly because you have made a complaint of sexual orientation related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of sexual orientation related discrimination under the Equality Act. For example:
- a gay worker complains that he has been 'outed' by his manager against his wishes and his employer sacks him
A difference in treatment may be lawful if:
- belonging to a particular sexual orientation is essential for a job. This is called an occupational requirement . For example, an employer wants to recruit an advice worker who has experience of coming out for a young person's LGBT helpline. The employer can specify that applicants must be lesbian or gay
- an organisation is taking positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity
- the treatment by an employer or organisation falls within one of the exceptions that permits people to be treated differently based on their sexual orientation. For example, a charity can provide a benefit only to lesbians and gay men in certain circumstances
- a religious or belief organisation is excluding persons of a particular sexual orientation from its membership or participation in its activities, or its provision of goods, facilities and services. This only applies to organisations whose purpose is to practice, promote or teach a religion or belief, whose sole or main purpose is not commercial. The restrictions they impose must be necessary either to comply with the doctrine of the organisation, or to avoid conflict with the ‘strongly held religious convictions’ of the religion’s followers
Last updated: 11 Oct 2016
If you think you might have been treated unfairly and want further advice, you can contact the Equality Advisory and Support Service .
Phone: 0808 800 0082 Textphone: 0808 800 0084
You can email using the contact form on the EASS website .
Also available through the website are BSL interpretation, web chat services and a contact us form.
Post: FREEPOST EASS HELPLINE FPN6521
9am to 7pm Monday to Friday 10am to 2pm Saturday closed on Sundays and Bank Holidays
Alternatively, you can visit our advice and guidance page .
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Gender reassignment discrimination in employment
An employee needs to take time off work to attend medical appointments in relation to his gender reassignment process. The request is refused despite there being sufficient staff to cover so his employer is most likely being unreasonable. This would likely amount to unlawful direct discrimination related to gender reassignment.
A saleswoman informs the employer that she intends to spend the rest of his life living as a man. As a result of this, he is demoted to a role without client contact. The employer increases his salary to make up for the loss of job status. Despite the increase in pay, the demotion would likely constitute as less favourable treatment because of gender reassignment.
Discrimination by perception
A feminine-looking man visits a menswear store to enquire about a job vacancy. Following an informal chat, the manager discourages him from applying because he thinks that he is transgender and that he is “looking for someone with more masculinity to sell the products". The man would likely have a claim for direct discrimination because of perceived gender reassignment, even though he is not in fact transgender.
An employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transgender woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in. It would be no defence that it did not occur to the employer that this worker may feel disadvantaged by the requirement to disclose such information. To avoid a claim of indirect discrimination the employer should consider alternative ice-breaker activities that won’t compromise the dignity or security of any individual.
A transgender employee is required to travel abroad for work purposes. Her employer requires two forms of ID for going on trips abroad, one of which must be a birth certificate. This puts the employee in a very difficult position to provide a second form of ID as she does not want to disclose the fact that she had a different gender assigned at birth. To avoid a claim of indirect discrimination the employer should have ways of allowing an alternative form of additional ID, for example, a driving (or provisional) licence, otherwise the employer is likely to risk indirect discrimination claims from transgender employees.
An advisor for a careers guidance service is overheard by a transgender client making offensive and humiliating comments to a colleague about her looks and how she is dressed. This could amount to unlawful harassment related to gender reassignment.
Two years ago you made a complaint of harassment against your colleague related to your gender reassignment. Your former colleague is now your manager and arranges for you to be redeployed not because of your gender reassignment, but rather because you had the impertinence to suggest that he had discriminated against you. His act could amount to unlawful victimisation related to gender reassignment.
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How gender discrimination affects women across the globe
Gender discrimination happens, on some level, in every country in the world. In this blog, we will look at the different types of gender discrimination and how it can affect women across the globe.
Gender discrimination reveals itself in many different forms, sometimes obvious and sometimes not.
Unequal treatment of people based on their gender has lifelong and generational impacts. Millions of women worldwide are denied access to education, health services and economic opportunities, experience reduced access to food or live in fear of gender-based violence (GBV). According to the United Nations, women around the world between the ages of 24 to 35 are 25% more likely than men to live in extreme poverty.
In the world’s poorest countries, these issues are often exacerbated as women already feel trapped or powerless as a result of poverty and conflict. They also experience inequalities in access to and control over resources. In order to understand how we can help empower women and help them to turn the tide against inequality, we first must explore the challenges facing them.
What does gender discrimination mean?
Gender discrimination is the unequal or disadvantageous treatment of a person based on their gender.
Women and girls are most likely to experience the negative impacts of gender discrimination. It can mean restricted access to education, a lower standing in society, less freedom to make decisions around their personal and family life, and lower wages for the jobs and work they do. Women and girls also experience rampant levels of violence and harassment.
Gender equality is important in order to rectify the injustices that women face and has benefits for society as a whole. Improving gender equality stimulates economic growth and creates much-needed employment.
How does gender discrimination affect society?
Gender discrimination harms all of society, with gender stereotypes putting pressure on people of all genders to live up to an unrealistic ideal. It starts in early childhood and follows people all the way into adulthood, depriving them of opportunities and experiences.
Gender discrimination and inequality across the globe impacts the economy, education, health and life expectancy. Below we'll explore in more detail the realities of gender inequality for millions of women around the world.
Gender discrimination and poverty
Poverty and inequality are some of the clearest examples of how gender discrimination harms society. In most countries women represent the majority of the poor.
Women grow between 60% and 80% of the world’s food but often they have reduced access to the materials they need and even the food they produce. By increasing women’s access to land ownership, new skills and tools, food production as a whole increases and hunger is reduced.
The COVID-19 pandemic has seen many more women pushed into extreme poverty. A recent report from UN Women estimates that 121 women per 100 men will be living in extreme poverty (on US$1.90 or less per day) by 2030.
Job losses resulting from the crisis have particularly affected female employment and income. Informal employment and the services industries are where 740 million women around the world find paid work, and they’re the areas that have been the hardest hit by lockdowns and slowdowns.
Gender discrimination and the workplace
Progress has been made but men still outnumber women in paid employment, business and political life.
Women work two-thirds of the world’s working hours but only earn 10% of global income. Women continue to be unfairly burdened with unpaid domestic and care work, which limits their ability to participate in paid employment.
In 2020, only 47% of women of working age participated in the labour market, compared to 74% of men – a gender gap that has remained relatively consistent since 1995.
Women’s representation in the political sphere has more than doubled globally but it still only brings the percentage of female parliamentarians to 25%. Moreover, women make up just 22% of the world’s cabinet ministers.
In 18 countries husbands can legally prevent their wives from working, while in 38 economies there are no laws prohibiting the dismissal of pregnant women by their employers.
Gender discrimination and health
Gender inequality damages not just the physical and mental health of millions of girls and women worldwide, but also boys and men.
Women are restricted in their access to basic health care and services, and often don’t receive equal treatment or care for the same medical complaints as men. Women’s symptoms can often be dismissed. According to a 2018 medical review in the US doctors are more likely to view women’s chronic pain as psychological, exaggerated, or even made up, in comparison with men’s pain.
In addition to many women suffering from reduced access to healthcare, far too many are suffering from the physical and mental effects of gender-based violence. More than 30% of women worldwide have experienced physical or sexual violence at some point in their lives. Aside from the associated injuries, these forms of violence can also lead to depression, post-traumatic stress and other anxiety disorders, sleep difficulties, eating disorders, and suicide attempts.
What are specific examples of gender discrimination?
Legal rights of females are not equal to men
In the World Bank’s 2019 report , 187 countries were measured on their levels of gender discrimination. Only six countries gave women and men equal work rights. The level of disparity in legal rights of men and women varies from country to country, but the result remains the same; women receiving unfair legislative treatment. Nearly 40% of economies limit women’s property rights. In 43 countries women’s inheritance rights are limited in comparison to men’s.
Access to health services may not be the same
Historically, women and girls have received restricted access to healthcare - often leading to unfair health outcomes. More than 350,000 women die each year in childbirth or from complications relating to childbirth and 99% of these deaths happen in low income countries. The vast majority of these deaths are avoidable and show why it is important to consider the different needs of men and women when working on issues such as health care.
More recently, the COVID-19 pandemic is having an unequivocally detrimental effect on women’s wellbeing, especially in our countries of work at Concern. If you’d like to know more about this impact, you can read more here .
Access to education
Almost 130 million girls are without access to education. There has been progress in recent years at primary school level (approximately four to 11-years-old), with almost two-thirds of countries worldwide with equal numbers of girls and boys in school. This number decreases to 51% when we get to lower secondary education (approximately 12 to 16-years-old), and dramatically reduces to 24% when girls get to upper secondary school age (approximately 16 to 18-years-old).
Girls are being denied their basic right to education, which brings significant benefits to girls and society from improved economic opportunities to reductions in child marriage, teenage pregnancy, malnutrition and maternal and child mortality.
We have seen that increasing girls' access to education saves lives. It is estimated that for every year of education that girl receives, their children’s risk of infant mortality is reduced by 5%-10%. It is also estimated that if all mothers completed secondary education, there would be three million fewer child deaths per year.
How can gender discrimination be reduced?
Through acknowledging the different aspects of gender discrimination and working together to raise awareness, we can help eradicate it and the harm it causes society.
Gender equality is one of the 17 Sustainable Development Goals, and it’s incorporated into all of Concern’s country programmes and projects.
Our teams are currently working to make a real impact in the communities we work in, helping to eliminate gender discrimination and improve the quality of life for all.
Access to capital to start their own livelihoods
Thousands of women face violence and uncertainty on the streets of Bangladesh but an innovative programme aimed at lifting people from extreme poverty is creating hope for the future.
Funded by Irish Aid, the ‘Improving the Lives of the Urban Extreme Poor’ programme builds on the success of an initial four-year project and is aimed at assisting women living in extreme poverty in Dhaka and Chattogram City. Access to services is provided through ‘Pavement Dweller’ centres and severe acute malnutrition facilities which Concern has helped establish.
These centres were designed with input from the cities' most at-risk individuals to meet basic needs. Women can avail of child day-care services which allow them the opportunity to work knowing their children are being well looked after. Psychosocial support, parenting training and medical services provided by the centres have been described as life-changing by the women who have availed of them. The centres also focus on building the confidence of women who have been oppressed by helping them create a better life for themselves and their families.
We are helping women do this by providing wide and varied supports such as skills training, asset transfers, savings facilities, nutrition support, classes on gender equality and prevention of gender-based violence, improved hygiene and sanitation facilities and promotion of improved hygiene practices. We advocate for improved service delivery and support a number of Pavement Dweller Centres.
To address the issue of gender inequality and gender based violence in the broader community, local influential people and change makers are involved. There are also training courses for men and boys which use activities and exercises to understand gender roles, relations and violence against women. These courses also explore the role of men as nurturers and caregivers.
Access to information and education
Education is one of the best tools we have in our fight to reduce gender discrimination. School fees can be an enormous barrier for education, particularly for disadvantaged girls. In Kenya, our cash transfer programme is making it possible for girls to follow their ambitions through education. In 2019, we helped more than 625,000 girls to stay in school.
Global campaigns like ‘16 Days of Activism Against Gender Based Violence’ help to highlight the terrifying reality that women and girls face and provides them with the chance to highlight the issues they face, as well as empowering those affected to hold perpetrators of abuse to account. Ultimately, global campaigns like this help to create changes necessary for schools to become a safer place for girls to learn and grow.
Find out more
If you'd like to find out more about our approach to address gender inequality, see the link below.
The Graduation Model and Gender Empowerment research project in Malawi
Gender-based violence: 16 Things you need to know in 2022
Gender equality: Engaging men and women to transform gender roles
Earthquakes have caused widespread devastation and loss of life in Turkey (Türkiye) and Syria
Millions affected and tens of thousands left homeless
Concern Worldwide is on the ground providing shelter, food, water and heating
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- What You Should Know
Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII
As a result of the Supreme Court’s decision in Bostock v. Clayton County , we are currently working on updating this webpage.
Supreme Court Decisions on the Scope of Title VII's Sex Discrimination Provision
Oncale v. Sundowner Offshore Servs. , 523 U.S. 75 (1998). The Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion that, while same-sex harassment was "assuredly not the principal evil Congress was concerned with when it enacted Title VII . . .statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits 'discriminat[ion] . . . because of . . . sex.' [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79-80.
Price Waterhouse v. Hopkins , 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id . at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id . (quoting City of Los Angeles Dep't of Water & Power v. Manhart , 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).
Federal Court Decisions Supporting Coverage for Transgender Individuals as Sex Discrimination
Chavez v. Credit Nation Auto Sales, L.L.C. , 2016 WL 158820 (11th Cir. Jan. 14, 2016). Reversing summary judgment for the employer on the plaintiff's claim that she was terminated from her job as an auto mechanic because she is transgender, the court remanded the case for trial because there was sufficient circumstantial evidence to create a triable issue of fact as to whether gender bias was a motivating factor. The employer asserted that the plaintiff was fired for sleeping on the job and noted that other employees had been fired for the same offense. However, less than two months before the plaintiff's termination, her supervisor had said that her transgender status made him "nervous" and would negatively impact the business and coworkers. Moreover, the plaintiff had received an excellent performance appraisal prior to disclosing her gender transition, and the employer deviated from its progressive disciplinary policy in imposing termination in the plaintiff's case.
Glenn v. Brumby , 663 F.3d 1312 (11th Cir. 2011). The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female. The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. "The nature of the discrimination is the same; it may differ in degree but not in kind." The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women's restroom, the record showed that the plaintiff's office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use. The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.
Barnes v. City of Cincinnati , 401 F.3d 729 (6th Cir. 2005). Plaintiff, who "was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser," alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.
Smith v. City of Salem , 378 F.3d 566 (6th Cir. 2004). The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping. The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior. The court reasoned that the "narrow view" of the term "sex" in prior case law denying Title VII protection to transgender employees was "eviscerated" by Price Waterhouse , in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.
Rosa v. Parks W. Bank & Trust Co ., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.
Schwenck v. Hartford , 204 F.3d 1187, 1201-02 (9th Cir. 2000). Citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a "man who 'failed to act like one.'" The court noted that "the initial approach" taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs "has been overruled by the language and logic of Price Waterhouse ."
Baker v. Aetna Life Ins., et al ., __ F. Supp. 3d __, 2017 WL 131658 (N.D. Tex. Jan. 13, 2017). The court ruled that an employee stated a claim against her employer for sex discrimination in violation of Title VII based on denial of coverage under employer-provided health insurance plan for costs associated with surgery related to gender transition.
Mickens v. General Electric Co ., No. 3:16CV-00603-JHM, 2016 WL 7015665 (W.D. Ky. Nov. 29, 2016). The court denied the employer's motion to dismiss a Title VII sex discrimination claim in which a transgender plaintiff alleged he was unlawfully denied use of the male bathroom close to his work station, and then was fired for attendance issues resulting from having to go to a bathroom farther away. He also alleged that once his supervisor learned of his transgender status, he was singled out for reprimands, and no action was taken in response to his reports of coworker harassment. Rejecting the employer's argument that discrimination based on transgender status is not actionable under Title VII, the court cited Sixth Circuit precedent recognizing that, in light of Price Waterhouse , the prohibition against gender discrimination in Title VII "can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms." The court held that the complaint sufficiently pled a Title VII sex discrimination claim, noting that "[s]ignificantly, plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like."
Roberts v. Clark Cty. Sch. Dist. , No. 2:15-cv-00388-JAD-PAL, 2016 WL 5843046 (D. Nev. Oct. 4, 2016). Expressly adopting the EEOC's holdings in Macy and Lusardi , the court ruled that plaintiff, a transgender school police officer, was subjected to sex discrimination in violation of Title VII when he was told by his employer that he could not use either the men's or women's bathroom at work.
Doe v. Ariz. , 2016 WL 1089743 (D. Ariz. Mar. 21, 2016). The plaintiff, a corrections officer, alleged the Department of Corrections violated Title VII's prohibition on sex discrimination based on gender identity when supervisors tolerated harassment of him and breached his confidentiality by informing prison inmates of his transition. Denying the employer's motion to dismiss, the court noted that the EEOC and courts have held that Title VII's sex discrimination provision prohibits workplace discrimination based on gender identity, and that the claim was described with sufficient clarity in the EEOC charge to render it exhausted.
Fabian v. Hosp. of Central Conn. , 172 F. Supp. 3d 509 (D. Conn. 2016). Plaintiff, an orthopedic surgeon, brought a Title VII sex discrimination claim alleging she was not hired because she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female. Analyzing Title VII's legislative history and case law in extensive detail, the court held that Price Waterhouse abrogates the narrow view of 0Title VII's plain language that previously excluded sex discrimination claims by transgender individuals, citing supportive rulings by the 6th, 9th, and 11th Circuits, as well as the EEOC's decision in Macy . See also Adkins v. City of New York , 143 F. Supp. 3d 134 (S.D.N.Y. 2015) (allowing equal protection claim by transgender individual to proceed under 42 U.S.C. Section 1983).
Lewis v. High Point Regional Health Sys. , 79 F. Supp. 3d 588 (E.D.N.C. 2015). Plaintiff, a certified nursing assistant, alleged she was denied hire for several positions because of her transgender status. At the time of her interviews, she was anatomically male, and was undergoing hormone replacement therapy in preparation for sex reassignment surgery in the future. The district court denied the employer's motion to dismiss the case because the employer had argued only that sexual orientation was not covered under Title VII and sexual orientation and gender identity are two distinct concepts. The court therefore allowed plaintiff's transgender discrimination claim to proceed under Title VII.
Finkle v. Howard Cty., Md. , 12 F. Supp. 3d 780 (D. Md. 2014). Denying the county's motion to dismiss or for summary judgment on a Title VII claim brought by a volunteer auxiliary police officer, the court ruled that the officer was an "employee" for Title VII purposes, and that her claim that she was discriminated against "because of her obvious transgendered status" raised a cognizable claim of sex discrimination. The court reasoned: "[I]t would seem that any discrimination against transsexuals (as transsexuals) - individuals who, by definition, do not conform to gender stereotypes - is proscribed by Title VII's proscription of discrimination on the basis of sex as interpreted by Price Waterhouse . As Judge Robertson offered in Schroer v. Billington , 577 F. Supp. 2d 293 (D.D.C. 2008) , '[u]ltimately I do not think it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.'"
Parris v. Keystone Foods , 959 F. Supp. 2d 1291 (N.D. Ala. 2013), appeal dismissed, No. 13-14495-D (11th Cir. Dec. 26, 2013). Plaintiff, a transgender female, alleged that she was discharged from her job at a chicken processing facility because of her "gender non-conformity." The district court, citing Glenn v. Brumby , recognized that the plaintiff's claims were covered by Title VII's sex discrimination prohibitions, but granted summary judgment to the employer on the ground that plaintiff's comparator evidence and evidence of discriminatory remarks by coworkers did not show that her discharge was motivated by her gender identity as opposed to the legitimate non-discriminatory reason proffered by the employer.
Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye, & Dental Fund , 867 F. Supp. 2d 1023 (D. Minn. 2012). Assessing a claim under ERISA for wrongful termination of benefits to a legal spouse of a transgender individual, the court quoted the language from Smith v. City of Salem that the Supreme Court's decision in Price Waterhouse "eviscerated" the "narrow view" of "sex" articulated in earlier Title VII cases, and observed: "An individual's sex includes many components, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual."
Schroer v. Billington , 577 F. Supp. 2d 293 (D.D.C. 2008). The plaintiff, a transgender female, was offered a position as a terrorism research analyst before she had changed her name and begun presenting herself as a woman. After the plaintiff notified the employer that she was under a doctor's care for gender dysphoria and would be undergoing gender transition, the employer withdrew the offer, explaining that the plaintiff would not be a "good fit." The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer's decision was literally discrimination "because of ... sex." The court analogized the plaintiff's claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." Since such an action would be a clear case of discrimination "because of religion," Title VII's prohibition of discrimination "because of sex" must correspondingly encompass discrimination because of a change of sex. The court concluded that decisions rejecting claims by transgender individuals "represent an elevation of 'judge-supposed legislative intent over clear statutory text,'" which is "no longer a tenable approach to statutory construction."
Lopez v. River Oaks Imaging & Diagnostic Grp., Inc. , 542 F. Supp. 2d 653 (S.D. Tex. 2008). The plaintiff alleged that she was subjected to sex discrimination when the employer rescinded its job offer after learning that she was transgender. Denying the employer's motion for summary judgment, the court concluded that the plaintiff's claim was actionable as sex discrimination under Title VII on the theory that she failed to comport with the employer's notions of how a male should look. A finder of fact might reasonably conclude that the employer's statement that the job offer was rescinded because she had "misrepresented" herself as female reflected animus against individuals who do not conform to gender stereotypes.
Mitchell v. Axcan Scandipharm, Inc . , No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006). Plaintiff alleged sex-based harassment and termination in violation of Title VII after the employer learned that plaintiff had been diagnosed with gender identity disorder and plaintiff began presenting at work as a female after having presented as a male during the first four years of employment. Denying the employer's motion to dismiss, the court held that because the complaint "included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant's actions, plaintiff has sufficiently pleaded claims of gender discrimination."
Tronetti v. TLC HealthNet Lakeshore Hosp . , No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. 2003). Relying on the reasoning in Schwenck v. Hartford , 204 F.3d 1187, 1201-02 (9th Cir. 2000), the court ruled that plaintiff's sex discrimination claims of hostile work environment harassment and discriminatory discharge arising from her transition and sex reassignment surgery were actionable under Title VII, based on factual allegations that she was discriminated against for "failing to act like a man." See also Doe v. United Consumer Fin. Servs . , No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio 2001).
Creed v. Family Express Corp. , 101 Fair Empl. Prac. Cas. (BNA) 609, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007). The plaintiff, a transgender female, alleged facts permitting an inference that she was terminated because of gender stereotypes; specifically, that she was perceived by her employer to be a man while employed as a sales associate and was fired for refusing to present herself in a masculine way. See also Hunter v. United Parcel Serv. , 697 F.3d 697 (8th Cir. 2012) (affirming summary judgment for the employer under both Title VII and state law, the court did not rule that such discrimination was not actionable under Title VII, but rather that there was no evidence that the prospective employer knew or perceived that plaintiff was transgender during the job interview, and therefore a prima facie case of sex discrimination was not established).
Miles v. New York Univ. , 979 F. Supp. 248, 249-50 (S.D.N.Y. 1997). Noting that the phrase "on the basis of sex" in Title IX is interpreted in the same manner as similar language in Title VII, the court held that a transgender female student could proceed with a claim that she was sexually harassed "on the basis of sex" in violation of Title IX.
Federal Court Decisions Supporting Coverage of Sexual Orientation-Related Discrimination as Sex Discrimination
Hively v. Ivy Tech Cmty, Coll. of Ind. , __ F.3d __, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) (en banc). In an 8-3 en banc decision, the Seventh Circuit agreed with the EEOC that Title VII's prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination, overruling its contrary prior precedent. Chief Judge Wood, writing for the majority, first relied on the "comparative method" of analysis, reasoning that "Hively alleges that if she had been a man married to a woman . . . and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . .This describes paradigmatic sex discrimination." The majority also relied upon the gender-stereotyping theory articulated in Price Waterhouse : "Viewed through the lens of the gender non-conformity line of cases," the majority said, "Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual." Next, the majority relied on the "associational theory," likening discrimination because of same-sex relationships to discrimination because of mixed-race relationships. Finally, the majority pointed to the "backdrop" of the Supreme Court's decisions regarding sexual orientation. Tracing the evolution of case law from Romer v. Evans , 517 U.S. 620 (1996), through Obergefell v. Hodges , 135 S. Ct. 2584 (2015), the majority described an evolving sense that laws "ʻburden[ing] the liberty of same-sex couples . . . abridge central precepts of equality.'" Judge Posner joined the majority opinion but wrote separately to argue that more than 50 years after its enactment, Title VII "invites an interpretation that will update it to the present," observing that "[n]othing has changed more in the decades since the enactment of the statute," he said, "than attitudes toward sex," and concluding that "[t]he compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose 'interpretation' of the word 'sex' in Title VII to embrace homosexuality . . . ." Two other concurring judges joined the bulk of the majority opinion, but not its reliance on the "backdrop" of Supreme Court opinions regarding sexual orientation, and wrote separately to emphasize that "[o]ne cannot consider a person's homosexuality without also accounting for their sex" because sexual orientation discrimination involves discriminating against a woman because she is (a) a woman, who is (b) sexually attracted to women, and therefore sexual orientation discrimination is necessarily motivated in part by the employee's sex. The three dissenting judges criticized the majority for "deploy[ing] a judge-empowering, common-law decision method . . . [producing] a statutory amendment courtesy of unelected judges," reasoning that courts must interpret a statute "as a reasonable person would have understood it at the time of enactment."
Two other appellate courts, in rulings by divided three-judge panels, have recently reached the opposite conclusion, finding that they were bound by circuit precedent disallowing sexual orientation discrimination claims under Title VII; however, there were extensive separate opinions written in each case reasoning that the older precedent should be overturned. See Anonymous v. Omnicom Grp., Inc. , 2017 WL 1130183 (2d Cir. Mar. 27, 2017) (concurring, two judges extensively critiqued the circuit precedent disallowing Title VII sexual orientation discrimination claims, and endorsed all three rationales set forth by the EEOC in Baldwin) ; Evans v. Ga. Reg'l Hosp. , 2017 WL 943925 (11th Cir. Mar. 10, 2017), pet. for reh'g en banc filed (Mar. 31, 2017) (ruling that the sexual orientation discrimination is not actionable but the claim could proceed because the facts supported a permissible Title VII claim of sex discrimination based on gender nonconformity; dissenting, one judge reasoned that plaintiff's sexual orientation discrimination claim should also have been permitted to proceed, because when a woman alleges "she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer's image of what women should be - specifically, that women should be sexually attracted to men only").
Muhammad v. Caterpillar Inc. , 767 F.3d 694 (7th Cir. Sept. 9, 2014, as amended on denial of reh'g, Oct. 16, 2014). Plaintiff alleged that hostile work environment harassment relating to his perceived sexual orientation was sex-based harassment in violation of Title VII. Affirming the district court's grant of summary judgment to the employer, the appellate court ruled that the employer took prompt remedial action once on notice of the harassment. As urged by the EEOC in an amicus brief filed in connection with plaintiff's petition for rehearing, the court denied the petition but amended its original decision to delete language that had stated sexual orientation-related discrimination claims are not actionable under Title VII.
Latta v. Otter , 771 F.3d 456 (9th Cir. 2014). The Ninth Circuit Court of Appeals held that statutes and constitutional amendments in Idaho and Nevada prohibiting same-sex marriages and refusing to recognize same-sex marriages validly performed in other states violated the Equal Protection Clause. The opinion of the court held that the laws were invalid as they discriminated on the basis of sexual orientation without sufficient justification. It also noted that "the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping . . . may provide another potentially persuasive answer to defendant's theory." Id. at 474. A concurrence by Judge Berzon focused exclusively on the sex discrimination argument. Her opinion stated that she would have found that the Idaho and Nevada laws unlawfully discriminated on the basis of sex as, among other reasons, "the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations." Id. at 495.
Boutillier v. Hartford Pub. Schs. , No. 3:13-cv-01303, 2016 WL 6818348 (D. Conn. Nov. 17, 2016). Plaintiff, an elementary school teacher, alleged that discrimination against her based on her sexual orientation violated Title VII's sex discrimination prohibition. The court denied the employer's motion for summary judgment, citing the pendency of the issue before the circuit's appellate court and mixed circuit precedent, as well as arguments it found persuasive in support of plaintiff's claim. The court reasoned that Title VII's plain language as well as precedent supported plaintiff's claim, concluding that "straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination." See also Boutillier v. Hartford Pub. Schs. , 2014 WL 4794527 (D. Conn. Sept. 25, 2014) (denying employer's motion to dismiss).
EEOC v. Scott Med. Health Ctr., P.C., __ F. Supp. 3d __, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016). The Commission alleged that harassment and constructive discharge based on the sexual orientation of a teleworker was actionable as sex discrimination under Title VII. Denying the employer's motion to dismiss, the court held that "Title VII's 'because of sex' provision prohibits discrimination on the basis of sexual orientation." The court explained: "There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, "[d]iscriminating against a person because of the sex of that person's romantic partner necessarily involves stereotypes about 'proper' roles in sexual relationship-that men are and should only be sexually attracted to women, not men." The court stated that in its view, a line between sex discrimination and sexual orientation discrimination is "a distinction without a difference. Forcing an employee to fit into a gendered expectation-whether that expectation involves physical traits, clothing, mannerisms or sexual attraction-constitutes sex stereotyping and, under Price Waterhouse, violates Title VII." The court concluded that such discrimination, "based upon nothing more than the aggressor's view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate."
Winstead v. Lafayette Cty. Bd. of Cty. Comm'rs , 197 F. Supp. 3d 1334 (N.D. Fla. 2016). Employee of county emergency medical services department brought Title VII sex discrimination claim alleging discrimination based on sexual orientation or perceived sexual orientation. Denying the employer's motion to dismiss, the court explained that it found persuasive the sex stereotyping rationale articulated in the EEOC's decision in Baldwin v. Dep't of Transportation , EEOC Appeal No. 0120133080 (July 15, 2015), and observed: "To hold that Title VII's prohibition on discrimination 'because of sex' includes a prohibition on discrimination based on an employee's homosexuality or bisexuality or heterosexuality does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that '[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (quoting Manhart , 435 U.S. at 707 n.13).
Videckis v. Pepperdine Univ. , 150 F. Supp. 3d 1151 (C.D. Cal. 2015). Pepperdine University filed a renewed motion to dismiss plaintiff's Title IX claim, stating that the plaintiff alleged sexual orientation discrimination and not sex discrimination. The district court denied the motion, explicitly holding that "sexual orientation discrimination is a form of sex or gender discrimination." The court cited with approval the Commission's decision in Baldwin v. Dep't of Transportation , EEOC Appeal No. 0120133080 (July 15, 2015), explaining that sexual orientation discrimination is sex discrimination "because it involved treatment that would not have occurred but for the individual's sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex."
Isaacs v. Felder , 143 F. Supp. 3d 1190 (M.D. Ala. 2015). Granting the employer's motion for summary judgment on plaintiff's Title VII claim due to insufficient evidence of discriminatory intent on the facts of the case, the court nevertheless explicitly rejected arguments that sexual orientation discrimination cannot be challenged under Title VII: "This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII. In [ Baldwin ], the Commission explains persuasively why 'an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII' … Particularly compelling is its reliance on Eleventh Circuit precedent [prohibiting discrimination based on a protected characteristic because of a personal association]. Cf . Parr v. Woodmen of the World Life Ins. Co. , 791 F.2d 888, 892 (11th Cir. 1986) ('Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race [in violation of Title VII].').' ….To the extent that sexual orientation discrimination occurs not because of the targeted individual's romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from 'heterosexually defined gender norms,' this, too, is sex discrimination, of the gender-stereotyping variety …. See also Latta v. Otter , 771 F.3d 456, 486 (9th Cir. 2014) (Berzon, J., concurring) ('The notion underlying the Supreme Court's anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: '[n]obody should be forced into a predetermined role on account of sex,' or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one's gender. See Ruth Bader Ginsburg, 'Gender and the Constitution,' 44 U. Cin. L.Rev. 1, 1 (1975)."
Strong v. Grambling State Univ. , 159 F. Supp. 3d 697 (W.D. La. 2015). The court analyzed on the merits plaintiff's claim that he was subject to sex discrimination in violation of Title VII based on his "gender status as heterosexual" because "women and homosexuals earn higher salaries than he does and receive pay increases where he does not." Granting the employer's motion for summary judgment, the court found there was insufficient evidence to support an inference of discriminatory intent.
Hall v. BNSF Ry. Co . , 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014). Denying an employer's motion to dismiss a Title VII sex discrimination claim challenging the employer's policy of providing health insurance coverage for employees' legally married opposite-sex spouses but not same-sex spouses, the court found that the allegations were sufficient to allege discrimination based on the sex of the employee.
Terveer v. Billington , 34 F. Supp. 3d 100 (D.D.C. 2014). Denying the employer's motion to dismiss the plaintiff's Title VII sex discrimination claims for denial of promotion and harassment because of non-conformance with sex stereotypes, the court found sufficient the plaintiff's allegations that he is "a homosexual male whose sexual orientation is not consistent with the Defendant's perception of acceptable gender roles," that his "status as a homosexual male did not conform to the Defendant's gender stereotypes associated with men [at his workplace]," and "his orientation as homosexual had removed him from [his supervisor's] preconceived definition of male."
Koren v. Ohio Bell Tel. Co ., 894 F. Supp. 2d 1032 (N.D. Ohio 2012). Denying defendant's motion for summary judgment where plaintiff alleged his supervisor discriminated against him based on sex stereotypes because he is married to a man and took his husband's last name, the court held: "That is a claim of discrimination because of sex." (emphasis in original).
Heller v. Columbia Edgewater Country Club , 195 F. Supp. 2d 1212, 1224 (D. Or. 2002). In a Title VII sex harassment case brought by a lesbian employee who was subjected to negative comments about her sex life, the court stated that the belief that men or women should only be attracted to or date persons of the opposite sex constitutes a gender stereotype. "If an employer subjected a heterosexual employee to the sort of abuse allegedly endured by Heller-including numerous unwanted offensive comments regarding her sex life-the evidence would be sufficient to state a claim for violation of Title VII. The result should not differ simply because the victim of the harassment is homosexual." In this case, the court held, a jury could find that [the manager] repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men."
Centola v. Potter , 183 F. Supp. 2d 403 (D. Mass. 2002). In dicta, the court explained: "Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women."
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Gender reassignment discrimination and the NHS
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NHS bodies, in their roles as both employer and service provider, increasingly find themselves subject to complaints of discrimination on the grounds of gender reassignment, due to a growing awareness and understanding within the trans community of their rights as employees and patients.
It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.
The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).
The Equality Act 2010
Discrimination under the eqa 2010.
The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person 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.
Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.
A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.
There are five types of prohibited discrimination in respect of gender reassignment:
- Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
- Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
- Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
- Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
- Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people
One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc , the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.
However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.
Exceptions: when gender reassignment discrimination may be lawful
Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.
Application to the NHS
In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.
However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.
NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.
Gender Recognition Act 2004
The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.
Prohibition on disclosure of information
The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.
An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee’s personal file, disclosing the fact that the employee was born a different gender, without the employee’s prior consent.
There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.
In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.
Practical considerations for NHS bodies
The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.
Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.
In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.
Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.
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Gender reassignment discrimination.
In the United Kingdom, gender reassignment discrimination is one of the less understood or talked about forms of discrimination across workplaces. With the coverage of high-profile celebrities like Chelsea Manning and Caitlyn Jenner, issues relating to gender reassignment are now breaking through to the public conscience.
In 2016, a report by the Women and Equalities Committee made more than 30 recommendations, asking the government to ensure equality for people who have undergone or are undergoing gender reassignment.
One such recommendation of the report was that the use of terms “transsexual” and “gender reassignment” in the Equality Act 2010 is both misleading and outdated. Instead, the report suggested the umbrella term of transgender.
What is Meant By Gender Reassignment?
Gender reassignment surgery is the medical procedure, which is used to alter a transgender person’s physical appearance, and their existing sexual characteristics, to resemble those that are usually associated with their identified gender. The procedure is part of a treatment for gender dysphoria in transgender individuals.
Gender reassignment is a personal process. Choosing to undergoing medical treatment, or being under medical supervision, is entirely up to the individual if they wish to medically change the function of their existing physical characteristics, or not. Either way, if a person wants to adopt their chosen gender identity, the transition would qualify as gender reassignment.
According to the Equality Act 2010 , it is unlawful to mistreat an individual because of specific reasons, also known as “ protected characteristics ”. The Act recognises gender reassignment as one of the protected characteristics.
Therefore, if you are subjected to discriminatory comments or behaviour at the workplace because you identify as transgender, it counts as discrimination because of gender reassignment.
What does Transgender mean?
Somebody who identifies as transgender is someone who:
- wishes to change their gender, whether they proceed with the medical treatment or not;
- has had gender reassignment surgery;
- is currently undergoing medical treatment for gender reassignment;
- has started the medical procedure but has decided to stop it;
- has decided to adopt their chosen gender identity, without going through a medical gender reassignment;
- wants to dress as their preferred gender, either occasionally or all the time
Gender Reassignment Discrimination and Protection
The Equality Act 2010 in the UK protects any individual who decides to start or has completed a transition to adopt the gender of their choice, against discrimination.
The category of protected individuals includes someone who is not currently going through medical supervision or a transgender person who decides against undergoing any medical procedures.
Therefore, if an individual needs time off to address his or her gender reassignment issues, such as advice, counselling or surgery, their rights are protected under the Equality Act. Employers also need to practice caution and avoid treating individuals less favourably for taking such time off.
For example, if an individual takes time off for gender reassignment and their absence is counted as sick leave, it could be considered discriminatory, especially if the employer initiates disciplinary procedures against them. It would also be discriminatory for individuals to be overlooked for promotion, incentives or being made redundant, because they identify as transgender.
Types of Gender Reassignment Discrimination
Typically, there are four main types of discriminatory behaviour, which are covered in the workplace and are considered when discussing discrimination on the grounds of gender reassignment. These types are categorised as follows:
Direct discrimination is the type of discrimination, which is directed at a person because of their gender or due to their gender reassignment. Examples of direct discrimination could include;
- choosing not to employ someone;
- dismissing them unfairly from their job;
- withholding or offering significantly inadequate contractual benefits;
- withhold a promotion
Also, it is possible for employers to discriminate “by association” against an employee based on gender reassignment. For example, if an individual is denied a work position because their parent has undergone gender reassignment, then that person is said to have been affected by discrimination by association.
Further, individuals may suffer from direct discrimination based on perception. This form of discrimination is said to occur when employers and colleagues behave less favourably because of their attitudes about sex or gender reassignment, regardless of whether those perceptions are correct or not. For example, an individual may be treated less favourably based on the perceived gender of their name.
Indirect discrimination is said to occur when employers introduce policies, procedures and standard practices within the workplace that inadvertently disadvantage or favour a particular group of individuals based on gender reassignment. This type of discriminatory practices may include;
- contractual benefits;
- recruitment selection criteria;
- flexible working options;
- redundancy scoring criteria;
To make an employment tribunal claim against indirect discrimination, you must be able to show that a particular policy would affect the majority of members or all members of their specific group.
There are cases, however, when employers can justify these practices, if there is a legitimate business interest behind the disputed policy. For example, your employer may be justified in prescribing that a particular role is only for women, if it would be unsuitable for a male to perform the function of say, a support worker for teenage girls.
Harassment involves unfavourable or unwanted conduct of employers or colleagues, due to (actual or perceived) gender reassignment. Thus, an individual could be treated less favourably because they objected against, or rejected, unwanted sexual conduct from another employee. Examples of harassment may include;
- Inappropriate questions;
- Unncessary jokes;
- Excluding someone
Exposure to sexual harassment on the basis of gender reassignment is also a risk within the workplace. Such conduct may include:
- Comments about physical appearance;
- Unwanted physical contact;
- Displaying pornographic images;
- Sexual assault
Sexual harassment can be inflicted by an individual of any sex or sexual orientation. Furthermore, there are cases in which a claimant may feel uncomfortable, even if the alleged harasser has no specific intent of harassment. In such cases, an employment tribunal may consider whether it is reasonable for the claimant to feel the way they do, before proceeding to give judgement that the accused person’s actions qualify as harassment.
According to UK employment law, it is also possible for a third party to bring forth an harassment complaint, even if the behaviour is not directed towards them. For example, an individual may make a formal complaint about their co-workers making sexual advances or comments towards another staff member, if they believe that such conduct is negatively impacting the working environment of the organisation.
Victimisation is described as any disadvantage, harm or loss that an individual suffers in the workplace because of their previous involvement in a gender reassignment discrimination case. Such participation may include giving evidence in a complaint, making an allegation of discrimination, or supporting someone else’s discrimination claim.
Subsequently, the person who is being victimised may be denied opportunities, labelled as a troublemaker, excluded from events and training opportunities, or threatened with a poor reference when seeking employment elsewhere.
In the UK, it is unlawful to discriminate against an individual because of their sex or gender reassignment under the Equality Act 2010. Therefore, it is essential for employers and managers to create a conducive environment that would help recognise all forms of gender identity and expression. Furthermore, employers must lead by example on diversity and equality issues, and handle the changing needs of transgender individuals with sensitivity.
Gender Reassignment Discrimination
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Gender reassignment discrimination
The Equality Act 2010 (‘the Act’) makes it unlawful to discriminate in employment on the grounds of gender reassignment .
How is ‘ gender reassignment’ defined under the Act?
For the purposes of the Act, ‘ gender reassignment’ covers any person who is “proposing to undergo, undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex ”.
All trans people are protected, i.e. those whose gender identity does not match the gender they were assigned at birth, and who may decide to align their life and physical identity to match their gender identity . The definition includes a man who is making the transition to being a woman and vice versa.
Guidance on the Act makes it clear that changing your gender is a personal rather than a medical process. Therefore, m edical intervention and medical processes are not required for a person to meet the definition and acquire the protection of the Act. To be protected, you need to have at least proposed to change your gender , however, this does not have to be a final decision. People who start the process but then decide not to continue can also be protected.
Transvestites are not protected if they are not also trans (i.e. cross dressing is not motivated by a desire to live with a different gender to the one they were assigned at birth). However, they may be protected if they are discriminated against because they are perceived as being trans (see ‘Direct Discrimination’ below).
If a trans employee has been diagnosed with a condition such as gender dysphoria, then they may also be protected by the disability discrimination provisions of the Act, as long as the other criteria for a disability have been met. Please see our specific page on disability discrimination for more information.
Who is covered by the Act?
The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.
What is gender reassignment discrimination?
Gender reassignment discrimination is where you are treated unequally because of gender reassignment , perceived gender reassignment or the gender reassignment of someone with whom you associate. The Act has deemed that gender reassignment is a ‘protected characteristic’ and, accordingly, discrimination for this reason is unlawful.
Gender reassignment discrimination can arise in any of four ways:
Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment. Therefore, the law is designed to protect trans employees and workers during all aspects of employment. Moreover, you do not need to be employed for a particular period of time in order to bring a claim.
How easy it is to prove discrimination?
The tribunals are well aware that direct evidence of discrimination is rarely forthcoming and it is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and un-recognised prejudice of which they are unaware.
Furthermore, a discriminatory reason for your employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’.
However, the Tribunal in most cases will still have to discover what was in the mind of the alleged discriminator, and the onus of proof is on your employer to show that there was no discrimination. In every case it is crucial to enquire why an employee has received less favourable treatment, and whether it was on the grounds of race or some other reason. This may be, for example, because you were not so well qualified for the role. Save in the obvious cases, asking the crucial question of your employer will call for some consideration of the mental process of the alleged discriminator (e.g. your line manager), together with the treatment you received as a consequence.
Accordingly, as direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming, the grounds of the decision or act by your employer would have to be deduced, or inferred, from the surrounding circumstances.
Please find below more detail about the various types of discrimination:
This is perhaps the most common type and involves the less favourable treatment of others on grounds of gender reassignment . Direct discrimination also covers ‘associative discrimination’ where a person is discriminated against for associating wit h a trans person , as well as ‘discrimination by perception’ which is the unfair treatment of someone who is perceived to be trans .
For example, the Act protects trans people who choose to cross-dress as part of the process of transitioning to live as their non-birth gender. Conversely, the Act does not protect transvestites who choose to temporarily cross-dress for other reasons. However, a transvestite who is mistakenly perceived as a trans person and discriminated against because they are perceived to be a trans person, this would be discrimination by perception.
You would need to look at how an employer treats a trans employee compared to employees who live with and identify with the gender they were assigned at birth .
The defence of ‘objective justification ’ is not available for direct discrimination .
This is the application of a rule or practice that, on the face of it, applies equally to persons who are not trans but which particularly disadvantages trans people .
An example of indirect discrimination might be where an employer implements a dress code which involves wearing tight fitting clothing, meaning that a trans employee finds it difficult to give the appearance of being the gender with which they identify . Another example might be where an employer runs an ice-breaker asking all employees to bring in childhood photos and then chastises a trans employee for not doing s o (because the employee does not want their colleagues to know that they were brought up as a different gender). It would be irrelevant that the employer does not know that the employee is trans.
Whilst these would be blanket policies, applying to all individuals regardless of gender identification, they particularly disadvantage a trans individual and therefore could give rise to a discrimination claim.
Indirect discrimination can be objectively justified; the onus is on the employer to prove that it the discrimination is a proportionate means of achieving a legitimate aim.
Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the harassment is intentional or unintentional.
Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.
Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.
Harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of trans-phobic jokes around the office and the use of derogatory trans-phobic terms.
Additionally, the Equality Act has deemed that the employer is potentially liable for the harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.
Gender reassignment harassment also includes sexual harassment of a trans employee ( see our specific page on sexual harassment).
This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment (this is known as a ‘protected act’) . There is no need to compare your treatment to an employee who has not done a ‘protected act’ .
Some common examples of gender reassignment discrimination
Gender reassignment discrimination often arises in relation to the use of single-sex facilities, such as toilets. It is generally agreed that a trans person should be free to use the facilities for the gender with which they identify, once they start to live full-time as that gender.
Another common example is when an employer treats a trans employee less favourably in relation to absences from work because of gender reassignment compared to other sickness absence. For example, if your employer refuses, without good reason, to let you have time off to undergo treatment for gender reassignment, or pays you less than you would have received if you were off sick, this is likely to amount to direct discrimination.
An other example of direct discrimination might be where a trans person is refused a promotion because of his or her gender reassignment . Other examples might include the harassment of someone because they have a trans partner or family member .
Who is liable under the Act?
Liability for gender reassignment discrimination usually lies with the employer and/or any other employee who is found to have discriminated.
Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.
Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the other employee as well as the employer.
Employers have a defence to a complaint of discrimination based on vicarious liability and third-party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue against the individual employee.
Are there circumstances where gender reassignment discrimination may be lawful?
Gender reassignment discrimination may be lawful where there is an occupational requirement. Your employer would need to show that the requirement to discriminate is a ‘ proportionate means of achieving a legitimate aim ’ .
This might occur when:
In both these examples the employer would need to show that requiring the employee to be (or not be) trans is “crucial” to the role, not just one of many important factors.
There could also be Positive action. This is a voluntary measure which enables employers to provide support or encouragement to persons within a particular group if, during the last 12 months, that group has been disproportionately represented in that area of work. Employers could encourage this group to apply for jobs and even provide special training.
The Act applies only to establishments in Great Britain.
Pro ving discrimination
It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’ .
This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.
Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.
It is unusual to find direct evidence of gender reassignment discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.
Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote because they are trans, the evidence may point to the possibility of discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.
If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory , it is open to the tribunal to infer that the discrimination was because of gender reassignment.
Raising a grievance
If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.
If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.
An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of gender reassignment discrimination.
• A recommendation that the employer should take certain steps to remove or reduce the discrimination.
What compensation can you claim for gender reassignment discrimination?
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes:
– loss of earnings , which can include past or future losses, unpaid holiday, bonuses, stock options or notice pay;
– an award of damages for ‘injury to feelings ‘ (see the injury to feelings compensation guidelines below) . This is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.
– a personal injury , whether this is due to depression or physical injury (see below);
– aggravated damages. These are awarded in the most serious cases where the behaviour of your employer has aggravated your injury;
– punitive damages . This award is very rare and only in limited circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;
– interest , which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.
INJURY TO FEELINGS COMPENSATION GUIDELINES
The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento ” guidelines, and from 6th April 2022 they are:
TOP BAND FOR THE MOST SERIOUS CASES: £29,600- £49,300 (although it can exceed this in exceptional cases);
MIDDLE BAND: £9,900 – £29,600
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £990 – £9,900
Can I also claim personal injury in the employment tribunal due to the discrimination I have received?
As mentioned above, although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.
In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.
Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:
- “General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle;
- “Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).
The following factors need to be taken into account when valuing claims of psychiatric injury :
a) the injured person’s ability to cope with life and work;
b) the effect on the injured person’s relationships with family, friends and those with whom he comes into contact;
c) the extent to which treatment would be successful;
d) future vulnerability;
f) whether medical help has been sought;
g) whether the injury results from sexual and/or physical abuse and/or breach of trust; and if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.
What am I unable to include as part of my discrimination claim?
You will be unable to claim for the following:
- loss of reputation;
- injury to feelings for each alleged act of discrimination (unless you have discriminated for more than one protected characteristic (such as race, sex, disability etc.);
- an apology;
- costs (usually these are not awarded should you win or lose a tribunal case).
The Act imposes strict time limits throughout the procedure for bringing a case for gender reassignment discrimination. Good cases can be lost before they start through hesitation or delay.
If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.
The time limit for making a claim for gender reassignment discrimination to the employment tribunal is three months less one day from the last act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three-month period runs from the end of the continuing act.
Tribunals do have discretion to allow late claims to proceed, but there must be a good and exceptional reason why a claim was not made in time.
You should ideally obtain professional advice as soon as possible if you think you have a claim.
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What discrimination is by law
- Direct and indirect discrimination
- When an employer could be held responsible for an employee’s actions
- What an employer can do to prevent discrimination
- If someone has discriminated against you
Discrimination is when someone is treated unfairly for any of these reasons:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race (including colour, nationality, ethnic and national origin)
- religion or belief
- sexual orientation
These are called 'protected characteristics' under the law (Equality Act 2010). Discrimination based on any of these protected characteristics is usually against the law.
Types of unfair treatment
According to the law, there are different types of unfair treatment.
Discrimination is one type of unfair treatment and can, for example, be direct or indirect . Other types of unfair treatment include bullying.
Find out more about harassment, bullying and victimisation .
The employer must make sure they follow the law on equal pay .
If you like, you can tell us more about what was useful on this page. Please do not include any personal details, for example email address or phone number. If you have a question about your individual circumstances, call our helpline on 0300 123 1100. We cannot respond to questions sent through this form.
- Practical Law
Gender reassignment discrimination
Practical law uk practice note 4-503-0801 (approx. 45 pages).
- Legal operations, technology and people management: practice management
- Risk management, governance and ethics: practice compliance
- Discrimination - Employment
- Managing ethics and culture
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- 1 Scope of this note
- 2 Retained EU law
- 3 Terminology
- 4 Discrimination against trans people
- Women and Equalities Committee report
- LGBT action plan
- Reform of GRA 2004
- Gender Recognition Reform (Scotland) Bill 2022
- 6 Summary: gender reassignment discrimination in employment
- Medical supervision not required
- Gender recognition
- Protection under protected characteristic of sex
- Protection for intersex individuals
- Protection for non-binary and gender fluid individuals
- Potential disability discrimination protection
- Protection for cross-dressers
- Examples from guidance: direct gender reassignment discrimination
- Case examples: direct gender reassignment discrimination
- Association and perception
- Examples from guidance: absence because of gender reassignment
- Provision, criterion or practice
- Examples from guidance: indirect discrimination
- Employer's liability for harassment
- Gender reassignment harassment
- Sexual harassment
- Less favourable treatment following harassment
- Examples from guidance: victimisation
- Clash of protected characteristics
- Data protection
- Equality monitoring
- Uniform and dress codes
- Transitioning at work
- Policies and training
- Occupational requirements (ORs)
- Other exceptions
- 15 Gender reassignment discrimination before October 2010
Plan International's websites
- Girls Get Equal
How to challenge gender discrimination
We are all influenced by gender. Gender norms (or rules) tell us what is appropriate for girls and for boys, women and men to do in our society. Because of gender stereotypes, girls and women are often less valued and have lower social status.
Girls and women suffer most of the negative impact of rigid gender norms and roles, they are more likely to experience restrictions of their freedom and mobility, they experience epidemic levels of violence and harassment across the globe and have fewer opportunities to choose how to live their lives.
But boys and men suffer too. Ideas about what it means to be a man force boys and men to behave in very limited ways which can harm them. Negative masculinities encouraged in boys serve to perpetuate the cycle of discrimination and inequality.
Denying people the freedom to choose their path in life because of their gender prevents them from fulfilling their full potential. There is lots we can do to help build a more gender-equal world. Understanding the deep roots of gender inequality and challenging discrimination when we see it are the first steps.
What is gender discrimination?
Gender discrimination describes the situation in which people are treated differently simply because they are male or female, rather than on the basis of their individual skills or capabilities.
The following is a list of discriminatory acts you may come across among your peers, at home, at school or in the workplace.
- Sexual harassment, catcalling
Harassment and catcalling on the street are prime examples of how women’s right to walk freely around their environment is restricted. The normalisation of harassment and inaction of bystanders and authorities perpetuate this form of discrimination and limit women’s freedom.
- Gender stereotypes at school and work
Stereotypes are how societies expect people to act based on their gender. For example, girls should stay at home and help with housework and childcare, should dress modestly and not stay out late at night. People are often judged by how well they adhere to the gender stereotypes.
These stereotypes can often bleed out into school and work, where girls are less likely to be encouraged into science and technology subjects or leadership roles, due to the perceived ‘male nature’ of these pursuits. Likewise, seemingly positive stereotypes and gender roles such as men being the ‘provider’ or ‘protector’ of the family, put an unnecessary burden on men and boys that could more positively be shared in an equal partnership.
These attitudes limit girls’ power by rendering them less able to help contribute to making the world around them a better place.
- Objectification and poor representation
Objectification is when a person is treated as a commodity or an object without regard to their personality or dignity. It commonly happens in the media where women are photoshopped and airbrushed leading to much more emphasis and value being put on their external appearance above other capacities. This affects girls’ body image, their self-esteem and ultimately the value they put on themselves.
However, girls are also often represented poorly in entertainment and the media in ways that reinforce damaging gender stereotypes and traditional roles. Objectification must be called out and girls must be encouraged to tell their own stories – ones that reflect their power, potential and diversity.
How can I call out gender discrimination or sexism when I see it?
1. speak out about your own experiences.
It’s important, if you feel comfortable, to call out your own experiences of discrimination. This could be highlighting sexist remarks made by your friends or peers or reporting harassment on public transport.
It’s important to note that there are dangers associated with calling others out on their behaviour. People may not like to have their viewpoints challenged; they may react in a negative or aggressive way, so if your instincts tells you that a situation is too risky, your own safety is the priority.
Often the best course of action when discrimination is experienced is to alert an authority figure – a member of staff on public transport, or where relevant your teacher or your boss. The more they are made aware these issues are happening, the more they’ll be encouraged to step in and be part of the solution.
2. Call out discrimination in the media and advertising
Write to advertisers, marketers and media outlets if you come across stories that portray women and girls in a reductive or unfair way.
- Are there gender stereotypes in your textbooks at school?
- Does an advert in your city objectify women?
- Does a film you’ve watched have fewer speaking roles for women?
Find out who is responsible and write to them to let them know your thoughts.
Also vote with your feet. Don’t support entertainment that is disrespectful to girls and women and doesn’t represent their true power, potential, talent and diversity.
3. Support other campaigners
A great way to make a big effect in the pursuit of gender equality is to join with others. Seek out local campaign groups. Join or set up school or university societies for gender equality and female leadership. There is strength in numbers, more voices tackling a particular issue means they are more likely to be heard.
Helping to raise the profile of campaigns by other marginalised groups is a vital part of ending discrimination. For example, girls from a minority or indigenous community may experience racism as well as sexism, and members of the LGBTIQ+ community may also be experiencing homophobia. Be their allies and lend your voice to their causes.
4. It’s OK to not challenge discrimination every time you see it
As mentioned above, sometimes calling out discrimination can carry risks. It’s not your job alone to fix the world. We are all part of the same movement.
Just changing how we relate with others, and demanding that others do the same, will not end gender inequality. Lasting change will only happen if the institutions that affect our lives also change. Don’t feel defeated by these big obstacles – each small achievement is an extra step towards our shared goal.
Caring for ourselves means we can continue to advocate for gender equality so always make sure you are maintaining your own wellbeing.
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Discrimination because of sex
What is sex discrimination.
Sex discrimination is when you are treated unfairly either because you are a man or because you are a woman.
If sex discrimination takes place in any of the following situations it is illegal and you may be able to take action about it:
- employment and training
- when providing goods and services , for example, banking, entertainment and transport
- any of the activities carried out by public authorities , such as the NHS, government departments, local authorities, the police and prisons
Sex discrimination can be direct or indirect . It can also take the form of victimisation or harassment.
Sex discrimination does not need to be deliberate. Someone may be discriminating against you without realising it or meaning to, but this might still count as discrimination.
The law against sex discrimination does not allow positive discrimination in favour of one sex. For example, an employer is not allowed to insist on only recruiting or promoting women to a particular job because women have previously been discriminated against when applying for that role.
Positive discrimination is not the same as positive action , which is allowed.
As well as protecting you from sex discrimination against men and women, the law also protects you from:
- pregnancy and maternity leave discrimination
- discrimination because you are changing from one gender to another ( gender reassignment )
- discrimination because you are married or in a civil partnership
- discrimination because of sexual orientation
See also Pregnancy and maternity discrimination .
For more information about discrimination because of your sexual orientation, see Sexual orientation discrimination .
Direct sex discrimination
It is direct sex discrimination to treat someone less favourably because of their sex than someone of the other sex would be treated in the same circumstances.
To prove direct sex discrimination, it will help if you can give an example of someone of a different sex who, in similar circumstances, has been, or would have been, treated more favourably than you.
Sexist abuse and harassment are forms of direct discrimination.
Examples of direct sex discrimination include:
- refusing credit to a married woman without her husband’s signature, while a married man is not required to have his wife’s signature
- refusing to accept a woman’s salary as the basis for a mortgage because of her sex
- a nightclub charging a higher price for entry to a man because of his sex
- advertising a job for a ‘waiter’. This gives the impression that the job is only open to men.
For more information about direct discrimination, see Direct discrimination .
Indirect sex discrimination
It is indirect sex discrimination to have a rule, policy or practice which someone of a particular sex is less likely to be able to meet than and this places them at a disadvantage to the opposite sex.
Examples of indirect sex discrimination might include:
- an employer requiring all their employees to work full-time. A lot more women have caring responsibilities for young children or dependant adults so they would find it much more difficult than men to work full-time
- a mortgage provider who only gives mortgages to people who work full- time. This is likely to mean that less women than men will be given a mortgage as more women than men work part-time.
If you think that indirect sex discrimination might have occurred, you may be able to make a complaint about it. However, if the person or organisation you are complaining about can show that there are genuine reasons for the rule, policy or practice and that it has nothing to do with sex, this won't count as discrimination.
For more information about indirect discrimination, see Indirect discrimination .
If you complain about sex discrimination, you shouldn’t be victimised because you complained. This means that you shouldn’t be treated unfairly just because you’ve made a complaint.
Making a complaint includes taking a case to court, going to an employment tribunal or standing up for your rights in some other way.
You can get protection if you are victimised because you’ve made a complaint about sex discrimination. You can also get protection from discrimination for helping someone else to make a complaint about sex discrimination, for example, by giving evidence as a witness in court.
I have complained to my manager about the sexist calendars that the men have up at work. They've had to take them down, but now no one in the office will talk to me. It's very upsetting and I think it's making me ill. Is there anything that can be done?
This could be an example of victimisation. Victimisation after you have complained about sex discrimination is illegal. Get advice from your trade union if you have one or from an experienced adviser, for example, at Citizens Advice, or from an organisation which can give further help .
For more information about victimisation, see Victimisation .
Sex discrimination in employment and training
It is illegal for an employer to discriminate against you because of your sex. This includes all employers, no matter how few people they employ. Most workers, including employees, agency workers, trainees and those who are self-employed have protection from sex discrimination at work. This includes:
- recruitment and selection
- training, pay and benefits
- redundancy and dismissal
- terms and conditions of work
There are special rules to protect women who are pregnant or on maternity leave from discrimination at work.
If you're not sure whether you've been discriminated against you can check if your problem at work is discrimination .
I went for an apprenticeship as a nursery nurse but they said they only take on women and don’t take on men. Can they do this?
No they can't. It's against the law for a company to discriminate against anyone because of their sex in providing training. Get advice from an experienced adviser, for example, at your local Citizens Advice or from an organisation which can give further help .
The Equal Pay Act 1970 gives you the right to be treated equally in terms of pay in comparison to a member of the opposite sex.
If you believe you are not being treated equally, you may be able to make a complaint, or bring a claim to an employment tribunal.
If you wanted to do this, you would need to compare yourself to someone of the opposite sex who works for the same employer as you. You would need to be able to show that you:
- are doing like work. This means work which is the same or broadly similar to that of the other person, or
- are doing work which has been rated as equivalent to the other person's under a job evaluation study
- are doing work which is of equal value to that of the other person. For example, you need to use a similar amount of effort, skill and decision-making abilities.
Discrimination at work if you have caring responsibilities
You are protected by law if you are discriminated against at work because you have caring responsibilities. Caring responsibilities includes looking after your child or, for example, an elderly or disabled adult.
It could count as sex discrimination if your employer refuses to let you work flexibly in order to carry out your caring responsibilities. Working flexibly includes:
- working fewer or different hours
- working part-time
- working a job-share
- coming in later so that you can take your child to school or nursery
- taking time off to go to hospital appointments with someone for whom you're a carer
If the child or adult you are caring for is disabled, it might also count as disability discrimination if your employer treats you worse than other employees because of your caring responsibilities. This is known as disability discrimination by association.
For more information about disability discrimination, see Disability discrimination .
Get more information about flexible working .
Are there times when an employer is allowed to treat you less favourably because of your sex?
If an employer can show that you need to be a particular sex in order to do a certain job, they can insist on employing someone of that sex. This is known as an occupational requirement and does not count as discrimination.
An example of where it might be an occupational requirement to employ only women is for a job as a counsellor in a women's refuge. The employers would be able to argue that as their clients are all women who have experienced domestic violence by men, they would probably only want to talk to another woman about it.
In some circumstances, it may be possible for employers recruiting to a job in an organised religion to insist on only employing someone of a particular sex.
For example, it may be possible for the employers of a religious minister to argue that they can only employ a man in order to avoid offending the religious convictions of the religion's followers. They may also be able to argue that they can't employ a transgender person or a gay man for the same reasons.
Sex discrimination in education
It is illegal for either a state or private educational establishment to discriminate against you because of your sex. This includes admission policies, unless it is a single-sex establishment.
So, for example, a mixed-sex school should not refuse admission to a pupil because of their sex. And they shouldn't try to maintain a balance between the numbers of boys and girls in the school by admitting one sex and not another when places are limited.
A girl and boy must have the same access to the school curriculum. This means that they must be given exactly the same subject options and the same amount of subject teaching.
It is also illegal for any educational establishment to discriminate in the way it provides services to its students. For example, school students should have equal access to course option consultation and careers guidance. Any counselling provided must not be discriminatory.
My daughter was refused a place at the school of our choice. The head teacher said they only had places left for boys. Can a school reserve a set number of places for either girls or boys?
No, it's illegal for a mixed-sex school to discriminate in its admission policies. They should not refuse admission to a pupil because of their sex. Get advice from an experienced adviser, for example, at a local Citizens Advice.
What can you do about sex discrimination in education?
You can make a complaint about discrimination by a school, college, university or local education authority in your local county court (sheriff court in Scotland).
If your complaint is about a school, you should first try to resolve your complaint by talking to the school's headteacher. If you are still unhappy, you can then take your complaint to the school's governing body.
For more information about how to complain about a school, see Sorting out school problems .
If your complaint is about a college or university , you should first use the institution's own complaints procedure. If you are complaining about a further education college funded by the Education and Skills Funding Agency, you could also complain to the agency - find out how to complain on the agency's website.
If your complaint is about a university in England or Wales, you could take your complaint to the Office of the Independent Adjudicator (the OIA). The OIA can be contacted at:
Third Floor Kings Reach 38-50 King's Road Reading RG1 3AA Tel: 0118 959 9813 Website: www.oiahe.org.uk .
If you have a complaint about a university in Scotland, you should complain to the Scottish Public Services Ombudsman at: www.spso.org.uk .
For more information about how to use an ombudsman in Scotland and when to use one, see How to use an ombudsman or commissioner in Scotland .
If you are thinking about taking court action about discrimination, you should get advice from an experienced adviser, for example, at Citizens Advice. Search for your local Citizens Advice .
Sex discrimination when providing goods, facilities and services
It is illegal for anyone providing goods, facilities or services in the UK to discriminate because you are a man or woman.
Examples of goods, facilities and services include, shops, financial services such as banking, leisure facilities such as pubs and clubs, entertainment and transport.
Someone providing goods, facilities or services must not:
- refuse to provide you with goods, facilities or services because you are a man or a woman
- provide any of these things on less favourable terms or conditions because you are a man or a woman
It is illegal to discriminate regardless of how the goods and services are provided or whether you have to pay for them or not.
For example, it’s illegal for someone to discriminate against you when you’re buying something in a shop or over the internet, when you’re making a telephone enquiry or when someone gives you written information.
It is illegal for a financial services provider to discriminate against you because of your sex.
Examples of discrimination would be:
- asking a married woman to provide a guarantor for a loan when a man in a similar position would not be asked to do the same
- insisting that a married woman asking for a loan must apply jointly with her husband when married men don't have to apply jointly with their wives
- setting stricter conditions when a woman asks for a business loan than when a man does.
It is not illegal for an insurance company to discriminate against you because of your sex when the company is assessing risk. The company would need to be able to show that the discrimination is reasonable and that it is based on specific data.
An example of where an insurance company would be able to discriminate is a life insurance company where, because women and men have different life expectancies, they can be charged different rates.
Pubs and clubs
In general, it is illegal for a pubs and clubs to discriminate against men or women, although there are some exceptions for private clubs.
For example, a pub is not allowed to refuse to serve a woman a drink in a pint glass if men are served drink in pint glasses.
Another example of sex discrimination is a club which offers free entrance only to women. However, a private members' club is allowed to discriminate against women or men in this way. Examples of a private members' club include working men’s clubs, golf clubs, bowling clubs, and gentlemen’s clubs.
Although private members' clubs can discriminate against their members , they are not allowed to discriminate against their employees because of sex.
Sex discrimination and public authorities
It's illegal for a public authority to discriminate against you because of your sex while carrying out any of it's functions. Public authorities includes government departments, local authorities, NHS trusts, courts and tribunals, police officers and prisons.
On top of this, public authorities have a legal duty to take action against discrimination and to actively advance equality.
This means that public authorities must make sure that men and women get services that meet their needs more closely.
For more information about the duties of public authorities and sex discrimination, visit the Equality and Human Rights Commission's website at: www.equalityhumanrights.com .
Sex discrimination and advertising
With a few limited exceptions, it's illegal to publish or broadcast an advert which discriminates because of sex, or which advertises discriminatory services. For example, it is illegal for an employer to advertise for a job using words like 'craftsman' or 'handyman', as this might give the impression that the job is only open to men.
If an advertisement like this is published, the Equality and Human Rights Commission can take court action against the publisher, if the case is referred to them by an advice agency.
Sex discrimination and charities
It is not illegal for a charity to provide benefits to people of one sex only, provided this is set out in the charity’s constitution or rules.
Sex discrimination in housing
For more information about discrimination in housing, see Discrimination in housing .
Sex discrimination in sport
It is not illegal to limit participation in some sporting events to one sex only. This is where physical strength, stamina or physique are so important that, for example, a woman would be at a competitive disadvantage to a man.
It is not illegal to limit a sporting activity to one sex only where a member of one sex might object to physical contact with someone of the opposite sex. For example, it is not illegal for a self-defence class to limit itself to women participants.
If a sports club is a private members' club , it is allowed to discriminate against men or women when choosing its' members.
What can you do about sex discrimination
If you think you’ve suffered sex discrimination there are a number of things you may be able to do. These include:
- talking to the person or organisation that discriminated against you
- using a grievance procedure or making a claim to an employment tribunal if it is an employment problem
- publicising your case through the media
- taking legal action through the courts
- giving details of the problem to an advice agency who may be able to refer it to the Equality and Human Rights Commission if you believe the problem is widespread.
When deciding what action to take about sex discrimination, you will need to think about what you are trying to achieve. For example, do you want financial compensation, justice or publicity? You will also need to think about how quickly you need to get a result.
Any course of action is likely to be complicated, could include confrontation and may involve court action. If you are thinking about taking court action, you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. Search for your nearest Citizens Advice .
Taking legal action about sex discrimination
If you want to take legal action about sex discrimination, you will normally need to be able to prove that someone of a different sex has been, or would have been, treated more favourably than you in similar circumstances.
However, if you're making a claim about discrimination because you're pregnant or on maternity leave, you don't need to prove that someone of the opposite sex has been treated more favourably than you.
For more information about what you can do about discrimination, see Taking action about discrimination .
The law against sex discrimination does allow what is known as positive action in favour of one sex.
Positive action is used, often in training or advertising, to make up for a lack of equal opportunity in the past. It is intended to give special encouragement to one sex, without actually discriminating against the other. An example of positive action is giving extra training to female members of staff to help them be able to apply for a particular role if very few or no women have been employed in that role in the past.
It is illegal to discriminate against you if you are undergoing gender reassignment.
Gender reassignment is where you are changing from one sex to another.
It is also illegal to discriminate against you if you are intending to undergo or have already undergone gender reassignment. You do not have to be undergoing medical treatment.
If you experience discrimination because of gender reassignment, you can take action about this either through the courts or, if it's an employment problem, through an employment tribunal.
An example of discrimination because of gender reassignment is where a transgender woman is asked for a Gender recognition certificate (GRC) when she shows evidence to her employer that she has changed her name and asks to have her records changed.
As long as she shows some kind of proof that her name has changed, she shouldn't have to show a GRC. If her employer asks her for more proof than they would ask someone else who changed their name for another reason, this could be discrimination.
For more information about gender reassignment discrimination, see Gender reassignment discrimination .
Married people and people in a civil partnership
In some situations, it is illegal to discriminate against you because you are married or in a registered civil partnership.
This doesn't apply to housing , goods and services or education .
There is no law which says you must not be discriminated against because you're single, although it may be possible to argue this in certain circumstances.
For more information about discrimination because of marriage and civil partnership, see Marriage and civil partnership discrimination .
Other types of discrimination
As well as sex discrimination, you could be discriminated against for other reasons. For example because:
- you're pregnant or on maternity leave
- of sexual orientation
- you're married or in a civil partnership
- of gender reassignment
- of disability
- of religion
For example, you're a black, transgender woman and you're sacked because your employer says your work is poor, even though they have never raised problems with you before. If you think you've been sacked because you're black and a transgender woman, you may be able to make two claims, one for race discrimination and one for discrimination because of gender reassignment.
For more information about other types of discrimination, see our discrimination pages .
Help with taking a sex discrimination case
If you want to take legal action about sex discrimination, you may be able to get some help with your case.
You can get advice about this from your local Citizens Advice Bureau, or from the Equalities and Human Rights Commission . Search for your nearest Citizens Advice .
If you qualify for legal aid, you may get free legal advice and assistance from a solicitor. This comes under Legal Help (advice and assistance scheme in Scotland,). You might also be able to get help with the cost of taking a case to court under Legal Representation.
Equality advisory support service (eass).
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
More about the EASS helpline
Equality and Human Rights Commission (EHRC)
You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com .
A law centre can offer free legal advice if you want to take a case for sex discrimination. If a solicitor from a law centre represents you, you may be entitled to publicly-funded legal services (legal aid in Scotland). In England and Wales, details of the nearest law centre are available from the Law Centres Network, and in Scotland from the Scottish Association of Law Centres.
England and Wales
Law Centres Network Floor 1, Tavis House 1-6 Tavistock Square London WC1H 9NA Tel: 020 3637 1330 (admin only) Email: contact form available on the website Website: www.lawcentres.org.uk
Free Representation Unit (England)
The Free Representation Unit (FRU) can provide representation for people on a low income and living in the London area.
However, the FRU is a voluntary organisation and representation in cases cannot be guaranteed.
If you want help from the FRU, you must be referred in writing by another agency once the date of a hearing has been set. The agency must be an FRU subscriber.
Some Citizens Advice in the London area subscribe to the FRU. Search for your local Citizens Advice .
The FRU can be contacted at:
Ground Floor 60 Gray's Inn Road London WC1X 8LU
Tel: 020 7611 9555 Fax: 020 7611 9551 Email: available through a form on the website Website: www.thefru.org.uk
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Gender Reassignment in the Workplace
An employee comes into work one day and let’s you know that they are undergoing surgery to reassign their sex. You may have concerns that the individual will struggle with discrimination from their colleagues or management. How can you support them and ensure discrimination doesn’t occur?
Gender reassignment in the workplace is frequently misunderstood and as a result can lead to unwanted behaviour. In this guide, we’ll explain what forms the discrimination can take, how to avoid it, and how to support the employee during their transition.
What is gender reassignment discrimination?
Gender reassignment is one of the nine protected characteristics covered by the Equality Act 2010.
This means, if you treat someone with this characteristic different to others, this will amount to gender reassignment discrimination. The treatment doesn’t have to be intentional to be unlawful. For example, you could have a policy in place that indirect discriminates against the employee.
In other cases, colleagues or customers may treat the individual differently. You may think this degree of separation means wont’ be held accountable, however, you are responsible for the safety and wellbeing of your staff. You are also liable for any discrimination that occurs while they perform their role.
Transgender rights in the workplace
The leading piece of legislation you should refer to when considering gender reassignment discrimination is the Equality Act 2010. But what does the law say specifically about employment and discrimination of transgender employees?
Firstly, while the specific characteristic is known as “gender reassignment” the individual themselves may prefer transgender, transexual, or trans male/female. The Act itself specifies that the characteristic applies whenever an individual’s identity is different from the sex assigned to them when they were born. This means that the change can be a purely personal process with no physical changes necessary. Non-binary and gender fluid individuals are also covered under the protected characteristic of “gender reassignment.” Despite the name, the individual doesn’t have to be transitioning to be protected.
A person can be discriminated against at any point in the process, from first proposing a reassignment of gender, to undergoing the process, or completing it. Discrimination can come in many forms, including direct , indirect , harassment , or victimisation . To demonstrate exactly how it can occur, however, we will explore a few scenarios…
Examples of gender reassignment discrimination
An employee cannot be discriminated against because:
- They are trans or undergoing gender reassignment. It’s important to note that individuals, legally, are not protected unless they propose to change their gender or have already done so. For example, a cisgender man wearing a dress to work who is asked to conform to the uniform policy is not protected. He may have other avenues to claim discrimination or object to the policy, however. This leads into our next example…
- An employee is protected from discrimination if they are perceived to be trans. In the above example, depending on how the uniform policy is written and enforced, this could be grounds for discrimination. A more direct example of discrimination by perception would be if an employee is moved from a client-facing role to an office based one due to their appearance being too feminine or masculine.
- An employee is connected to a trans person. Otherwise known as discrimination by association.
The above gender reassignment discrimination examples give a good indication as to when it can occur. But, what about when you unintentionally discriminate? For example:
You have a policy that states that all employees must wear an ID badge featuring their photograph from the first day of employment with the business. Since then, the individual has changed their gender, and due to the policy, isn’t allowed to update their photo.
This is indirect discrimination and could easily lead to a tribunal claim or constructive dismissal.
Employing transgender workers
So, how do you ensure none of your policies accidentally discriminate against trans employees? Further, how do you support trans employees in the workplace?
A recent YouGov survey identified that two thirds of trans employees hid their gender identity at work. The same poll found that a third had experienced discrimination in the workplace and two in five has quit because their work environment was unwelcoming.
If you had any doubt that discrimination against gender reassignment occurs in the workplace, most surveys point towards a rise in recent years. That makes it even more important that support is given. You can start from day one of employment.
At the interview stage, make it clear you support trans staff without pressuring the individual to reveal their gender identity. You can do this by running through all of the policies you have in place. If you don’t have any trans-specific policies already in place, now is the time to review.
Here are some key aspects to consider:
- Bathroom access: introduce gender neutral bathrooms that allow trans staff to use the bathroom of the gender they align with. For smaller employers, changing the setup of the facilities may be difficult, so giving staff the freedom to use the facilities they feel comfortable with is your best option. Asking a trans employee to use a disabled toilet will likely amount to indirect discrimination
- Dress code: If you have a uniform policy or dress code, consider how it can be amended to be more inclusive.
- Pronoun and name usage: Use gender neutral terminology in all contracts and policies. This means you’ll avoid misgendering any staff, as well as ensuring the correct name and pronoun is used in the future.
- Absence for gender reassignment: for individuals going through gender reassignment, absences may be required. This is particularly true when surgery is involved. Consider whether you can make allowances for individuals who may need time off during their transition.
Finally, it’s important to give ongoing support. You can have all of the policies and procedures you need in place, but if you fail to support a trans employee when they are asking for help, you’ve fallen at the last hurdle. If an individual comes to you with an allegation of discrimination or harassment, take it seriously and investigate their claims.
Free gender reassignment white paper:
We have further information on managing discrimination with regards to trans employees. You can get this guidance for free by clicking the link below.
This White Paper sets out to explain some of the potential issues that could arise with an employee undergoing or seeking gender reassignment surgery and how to protect trans individuals, as well as make them feel accepted and welcome in your workplace.
For further advice or guidance with an HR issue in your workplace, please contact 0800 124 4134 .
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- Perceptive Discrimination - An HR Guide
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It can also occur if you are supporting someone who has made a complaint of gender reassignment discrimination. For example: a person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.
There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.
Gender reassignment harassment can be found in verbal and physical forms. For example, an employee receives trans-phobic jokes through a work email. You can't control harassment that comes from customers or the public. But you should do your best to protect trans employees from facing it at work. Gender reassignment victimisation
For example, if an employer fires an employee because she is a woman who is married to a woman, but would not do the same to a man married to a woman, the employer is taking an action because of the employee's sex because the action would not have taken place but for the employee being a woman.
If you're treated unfairly because you're a transgender person, this is is called 'discrimination because of gender reassignment'. The Equality Act 2010 says it's only unlawful discrimination if you're treated a certain way, because of certain reasons called 'protected characteristics'.
Guidance on Gender Reassignment for Staff Age Disability Marriage and Civil Partnership Pregnancy and Maternity Race Religion or Belief Sex Sexual Orientation Direct Discrimination Indirect Discrimination Harassment Racial harassment Victimisation Perceptive Discrimination Associative Discrimination Third-Party Harassment
an organisation is taking positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity. the treatment by an employer or organisation falls within one of the exceptions that permits people to be treated differently based on their sexual orientation. For example, a charity can provide a benefit only ...
Direct Discrimination Example 1 An employee needs to take time off work to attend medical appointments in relation to his gender reassignment process. The request is refused despite there being sufficient staff to cover so his employer is most likely being unreasonable.
Gender discrimination and poverty Poverty and inequality are some of the clearest examples of how gender discrimination harms society. In most countries women represent the majority of the poor. Women grow between 60% and 80% of the world's food but often they have reduced access to the materials they need and even the food they produce.
The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly.
The explanatory notes in the EqA 2010 give the following example of an occupational requirement; 'a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.'
Discrimination, bullying and harassment; Disciplinary and grievance procedures; ... such as sex or race. For example, someone is not offered a promotion because they're a woman and the job goes to a less qualified man. ... as gender reassignment is a protected characteristic. Being treated unfairly because of a protected characteristic someone ...
For example, if an individual is denied a work position because their parent has undergone gender reassignment, then that person is said to have been affected by discrimination by association. Further, individuals may suffer from direct discrimination based on perception.
Some common examples of gender reassignment discrimination Gender reassignment discrimination often arises in relation to the use of single-sex facilities, such as toilets. It is generally agreed that a trans person should be free to use the facilities for the gender with which they identify, once they start to live full-time as that gender.
Discrimination based on any of these protected characteristics is usually against the law. Types of unfair treatment. According to the law, there are different types of unfair treatment. Discrimination is one type of unfair treatment and can, for example, be direct or indirect. Other types of unfair treatment include bullying.
Gender discrimination examples. There're many examples of gender-based discrimination in action. From recruitment to the policies, work processes and even dismissals. Direct discrimination, for example, involves dismissing a staff member or changing their duties after gender reassignment.
A note examining gender reassignment discrimination in employment under the Equality Act 2010 (EqA 2010). It considers both the legal and practical issues that may arise when a person has the protected characteristic of gender reassignment in the workplace.
Boys in Sri Lanka are supporting Girls Get Equal as allies. 3. Support other campaigners. A great way to make a big effect in the pursuit of gender equality is to join with others. Seek out local campaign groups. Join or set up school or university societies for gender equality and female leadership.
Examples of discrimination would be: asking a married woman to provide a guarantor for a loan when a man in a similar position would not be asked to do the same insisting that a married woman asking for a loan must apply jointly with her husband when married men don't have to apply jointly with their wives
Discrimination can come in many forms, including direct, indirect, harassment, or victimisation. To demonstrate exactly how it can occur, however, we will explore a few scenarios… Examples of gender reassignment discrimination. An employee cannot be discriminated against because: They are trans or undergoing gender reassignment.