Gender Reassignment Discrimination Guide

It is unlawful to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful for employers to fail to take timely and appropriate action when others at work discriminate against, bully or harass someone due to gender reassignment.

In this guide for employers, we look at what the law says about gender reassignment discrimination in the workplace, and the practical steps employers should take to prevent this type of unlawful discrimination at work.

 

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. Non-binary and gender-fluid individuals also come within the scope of gender reassignment under the Equality Act.

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.

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.

 

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.

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.

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 individual 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.

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. A declaration setting out the rights of the parties

b. An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered

c. A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

 

 

Types of Gender Reassignment Discrimination

 

Under the Equality Act, individuals are afforded protection from four main types of discriminatory behaviour in the workplace:

 

1. Direct discrimination

 

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation 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.. 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 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, and 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.

 

2. 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.

 

3. 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.

 

4. 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.

 

ACAS Guidance on Gender Reassignment Discrimination

 

Updated Acas guidance on gender reassignment discrimination, released on 29 October 2024, provides advice for employers on preventing gender reassignment discrimination in the workplace, supporting transgender employees and handling related issues sensitively. It clarifies employers’ legal obligations under the Equality Act 2010 and offers practical steps to promote an inclusive workplace culture. The guidance replaces the 2017 version.

Under the new guidance, employers are encouraged to establish a culture where discrimination and transphobia are explicitly unacceptable. Acas suggests regular staff training to build awareness, particularly around respectful use of pronouns and the importance of privacy for those undergoing gender reassignment. Clear communication on company policies can help ensure all staff understand that gender reassignment discrimination is a serious matter and promote an environment of respect.

For practical support, Acas recommends that employers implement a “transitioning at work” policy that offers a clear framework to guide managers and HR when supporting transitioning employees. This includes discussions on name and pronoun changes, time off for medical appointments, and adjusting facilities and records. Flexibility with dress codes, toilets, and confidential handling of sensitive information are also key aspects of the guidance, aiming to reduce potential discomfort or discrimination against transgender employees.

Acas also highlights the importance of balancing the rights of employees with differing views on gender identity. Employers are advised to foster open dialogue and use Acas’s mediation services when conflicts arise over gender identity issues, avoiding immediate legal action.

Finally, the guidance encourages regular monitoring and feedback from staff to evaluate the effectiveness of inclusivity measures, allowing employers to make adjustments as needed. With these updates, Acas provides a roadmap for creating a supportive, fair workplace for transgender employees, benefitting both the individuals and the wider organisation.

 

Special Protections for Absences

 

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 Lawful?

 

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination may be objectively justified, provided 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.

 

Employees With Differing Views

 

Dealing with employees who have differing views on gender identity requires a careful balance of respect, clear communication and compliance with workplace policies that promote inclusivity and prevent discrimination. Employers should strive to create an environment where all employees feel safe and valued, regardless of their views, by setting clear expectations for respectful behaviour.

Employers should communicate that while personal beliefs are respected, all employees are expected to adhere to workplace standards of respect and inclusion. Training sessions can help educate staff about gender identity, clarify the company’s stance on inclusivity, and address the importance of respecting everyone’s identity and pronouns, to help prevent misunderstandings and encourage a culture of mutual respect.

In cases where conflicts arise, it’s essential to encourage open and respectful dialogue. Managers can meet individually with employees to better understand their perspectives, using these conversations to emphasise the need to focus on respectful interactions. For example, employees with differing views on gender identity should avoid discussing personal beliefs that could make others feel uncomfortable or unwelcome in the workplace.

Mediation can also when handling sensitive disputes. If employees feel unable to resolve their differences, mediation provides a neutral environment where both parties can voice their perspectives with a trained mediator’s support. Mediation can help each side feel heard and often leads to practical solutions for coexisting respectfully.

Ultimately, employers should reinforce that the focus remains on fostering a respectful, inclusive workplace rather than on personal beliefs. Regular feedback and ongoing communication can help to monitor the workplace climate, ensuring that differences in views on gender identity do not interfere with a supportive and productive environment.

 

 

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.

 

Need Assistance?

 

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

 

What is gender reassignment discrimination?

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.

 

Do employers need a formal policy for transitioning employees?

Acas recommends having a “transitioning at work” policy, especially for larger organisations. This policy should outline support measures, such as name and pronoun changes, adjustments to work duties, and time off for medical appointments. While smaller organisations might not create formal policies, they should still plan how they would support transitioning employees.

 

How should employers address the use of pronouns?

Employers should ask transitioning employees about their preferred pronouns and communicate this to other staff as the employee wishes. Using incorrect pronouns intentionally can be a form of harassment, so respectful use of chosen pronouns is essential to a supportive environment.

 

What steps can small businesses take with limited resources?

Even small businesses with fewer resources can take significant steps by fostering a respectful, inclusive culture and training managers to support transitioning employees. Simple actions, like discussing pronouns and providing flexibility around time off, can make a big difference without needing a large budget.

 

How should employers handle confidentiality regarding gender reassignment?

Employers must keep information about an employee’s transition confidential, sharing it only with the employee’s consent. Employers should work with the transitioning employee to decide how and when to inform colleagues, respecting the employee’s preferences throughout.

 

What if employees have differing views on gender identity?

Acas advises fostering respectful, open dialogue where differing views on gender identity exist. Employers are encouraged to handle conflicts sensitively and can use Acas mediation services to resolve issues constructively, ensuring all parties’ rights are respected.

 

Why is regular monitoring of inclusivity measures important?

Regular monitoring helps employers assess the impact of inclusivity efforts and make necessary adjustments. This feedback loop supports a more effective, responsive approach to inclusivity, benefiting both the organisation and its employees.

 

Glossary

 

Term	Definition
Acas (Advisory, Conciliation and Arbitration Service)	A UK organisation providing free and impartial information and advice to employers and employees on workplace relations and employment law.
Equality Act 2010	UK legislation that protects people from discrimination based on protected characteristics, including gender reassignment, in various settings, such as workplaces and services.
Gender Reassignment	The process by which a person changes their gender, including social, legal, and sometimes medical steps. It is a protected characteristic under the Equality Act 2010.
Transitioning	The process of moving from one gender identity to another, often involving changes in name, pronouns, appearance, and sometimes medical treatment.
Protected Characteristic	A trait or attribute protected by law from discrimination, such as age, race, gender reassignment, and religion.
Transgender	A term describing people whose gender identity differs from the sex they were assigned at birth.
Pronouns	Words used to refer to a person without using their name (e.g., he, she, they). Using incorrect pronouns can be seen as disrespectful and, in some cases, discriminatory.
Transitioning at Work Policy	A workplace policy that outlines support for employees undergoing gender transition, covering areas like name changes, pronoun usage, and medical leave.
Misgendering	Using incorrect pronouns or gender terms when referring to someone, especially deliberately, which can constitute harassment in the workplace.
LGBT+ Champion	A workplace advocate who promotes inclusivity and supports LGBT+ staff, helping to address discrimination and raise awareness of LGBT+ issues.
Gender Recognition Certificate (GRC)	A legal document in the UK that allows transgender individuals to change their gender legally, though it is not required for legal protection under the Equality Act.
Mediation Services	Services provided by Acas to help resolve workplace conflicts, including those related to differing views on gender identity, without resorting to legal action.
Inclusive Culture	A workplace environment where all employees feel respected, valued, and supported, regardless of their backgrounds, identities, or beliefs.
Gender-Critical Beliefs	Beliefs that emphasise the importance of biological sex over gender identity. In workplaces, balancing these beliefs with gender identity rights can sometimes require mediation.
Confidentiality	The obligation to keep sensitive information private, only sharing it with consent, especially relevant to information about an employee’s gender transition.