GENDER REASSIGNMENT DISCRIMINATION

A guide on gender reassignment discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.



For the purposes of this web page we use the term employee.

What is gender reassignment discrimination?

Gender reassignment is defined in the EqA as an employee:

• proposing to undergo
• is undergoing
• has undergone

a process (or part of a process) to reassign the employee’s sex by changing physiological or other attributes of sex.

A reference to an employee who has the protected characteristic of gender reassignment is a reference to a transsexual person and can be from man to woman or woman to man.

A transgender person may identify as transsexual if they desire medical assistance to transition from one sex to another. Transgender people are those whose gender identity does not match the gender they were assigned at birth. A transgender person may undergo the process of aligning their life and physical identity to match their gender identity, which is referred to as transitioning. Proposing to undergo gender reassignment does not require such a proposal to be irrevocable. A person who starts the gender reassignment process but then decides to stop still has the protected characteristic of gender reassignment.

A transsexual person who is at least 18 years old can apply for legal recognition of their acquired gender by applying for a gender recognition certificate to the Gender Recognition Panel. This is done on the basis that the transsexual person has lived in their acquired gender throughout the preceding 2 years and intends to continue to live in their acquired gender until they die. Once a full gender recognition certificate has been issued that person will become a member of their acquired gender.

What types of gender reassignment discrimination are there?

Gender reassignment discrimination can be:

• direct discrimination
• indirect discrimination
• harassment
• victimisation.

What is direct gender reassignment discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

• because of an employee's gender reassignment
• the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct gender reassignment discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

For the purposes of establishing direct gender reassignment discrimination, it does not matter whether the employee is of a particular gender reassignment, as discrimination can be:

• by perception
• by association. 

Examples of direct gender reassignment discrimination

• a saleswoman informs her employer that she intends to spend the rest of her life living as a man. Because of this, she is demoted to a role without client contact
• an employee is treated less favourably because they are perceived to be going through gender reassignment when they are not
• an employer treats an employee less favourably because an employee’s spouse is going through gender reassignment.

Direct gender reassignment discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees undergoing gender reassignment.

What is indirect gender reassignment discrimination?

Indirect gender reassignment discrimination occurs under section 19 of the EqA where:

• an employer applies to an employee a provision, criterion or practice (PCP)
• the employee has a protected characteristic
• the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
• the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
• the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

In other words, indirect gender reassignment discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their gender reassignment, the employee finds it more difficult to meet.

In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Example of indirect gender reassignment discrimination

• an employer induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each employee is required to provide a picture of themselves as a toddler. This is likely to disadvantage a transsexual woman who does not wish her colleagues to know that she was brought up as a boy.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

What is harassment related to gender reassignment ?

Harassment related to gender reassignment occurs under section 26 of the EqA during the course of employment if the conduct is unwanted and has the purpose or effect of:

• violating an employee's dignity or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, the perception of the conduct is reasonably considered to have that purpose or effect. A one-off act can amount to harassment.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

• brought claim under the EqA
• gave evidence or information in connection with a claim under the EqA
• did any other thing for the purposes of or in connection with the EqA
• alleged that your employer or another person has committed an act that contravenes the EqA.

Justification for gender reassignment discrimination

There will be no indirect gender reassignment discrimination if an employer’s actions are justified.

To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim. 

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.

Liability for gender reassignment discrimination

An employer will be vicariously liable for the acts of its employees and workers for gender reassignment discrimination unless it can show it took reasonably practical steps to prevent it from happening.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for gender reassignment discrimination advice and representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.

Contact us today ...