Shah Qureshi Reviews The Current Position On Transgender Rights In The Workplace
Transgender, or trans, is a term which describes someone whose gender identity does not match the sex they were assigned at birth. Under s7 of the Equality Act 2010, someone who identifies as transgender is someone who: … is proposing to undergo, is 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.
If the person in question decides to live permanently as the opposite gender without having any gender-changing surgery or hormone treatment, they are still protected from discrimination under the gender reassignment provisions of the Equality Act.
In the workplace, the fact that someone identifies as transgender should not influence any decision about promotion, pay, benefits, training or redundancy just as someone’s race, religion and so on should not. Like individuals with any of the other eight protected characteristics, trans people are protected from unlawful direct and indirect discrimination, discrimination by perception or association, harassment and victimisation.
To take some examples: to amount to harassment, a comment or act does not have to be targeted at a specific person – for instance, an employee who has reassigned their gender might overhear colleagues making an offensive joke about trans people; a person does not need to have the protected characteristic themselves to claim harassment – for instance, an employee who is not transgender might be offended by transphobic comments; an employee associated with a transgender person (such as their partner, spouse or friend) is protected from victimisation and discrimination because of that association; and it could be unlawful discrimination to dismiss a trans woman because she was wrongly perceived as no longer being able to do a physically demanding job.
The Equality Act also makes additional provisions specifically for gender reassignment. Under s16, trans employees are entitled to take time off work for reasons relating to their gender reassignment. Therefore, employers must treat a trans employee equally to other members of staff who require a period of absence from the workplace, otherwise they will be discriminating against that employee.
Gender Recognition Act 2004
The Gender Recognition Act (GR Act) allows people over the age of 18 to obtain a gender recognition certificate if they wish to legally change their gender. This certificate allows the person to obtain a replacement birth certificate, marry or enter into a civil partnership in their acquired gender and also receive a state pension and benefits.
It is important to note that the Equality Act does not require a transgender person to obtain legal certification of their elected gender in order to be protected from discrimination. Not having a certificate should make no difference to how an employer treats a trans employee or assesses their performance; it should treat the person as being the gender that they identify as.
The certificate does, however, add an extra layer of protection for the employee against discrimination. Under the GR Act, it is an offence punishable by a fine for an employer to disclose whether an employee holds a gender recognition certificate. It is also unlawful for an employer to ask for a certificate as a requirement of the person’s employment. There are some circumstances in which employers are allow to disclose such information, for example in relation to court proceedings or a criminal investigation as detailed under s22(4) of the GR Act.
Government position on the law
In September 2020, the government launched a consultation on the GR Act. It concluded that the current legislation has a sufficient balance for those who want to change their gender in law and no significant reform is required. In analysing the consultation responses, the government referred to a survey which it initiated in 2017, in which 38% of over 108,000 respondents said that the process of obtaining a gender recognition certificate is too complicated.
The government agreed that the process needs to be made easier and modernised, so it plans to move the process online. It also committed to reducing the application fee significantly to make the process more accessible. It is evident that the government firmly believes the Equality Act is robust enough to protect transgender people from discrimination, whether that be in the workplace or wider society.
This may seem a blow to the transgender community given the significant time and cost required to obtain a certificate. However, the Equality Act does provide the backbone to anyone’s employment rights and it has proven successful in many cases since it was brought into force.
Does protection go far enough?
Transgender employees and workers receive some additional protection under the Equality Act against unlawful discrimination. However, there is a question mark over whether the current provisions adequately protect individuals who identify as gender fluid or nonbinary.
Until recently, it was widely accepted that the Act only protected individuals whose gender reassignment is permanent and well established. However, this position has been challenged by the employment tribunal’s decision in Taylor v Jaguar Land Rover Ltd  (see ‘Key steps to support non-binary employees after landmark ruling’ by Jennifer Millins, Molly Flood and Morgan Reardon, ELJ215 (November 2020)).
The tribunal found that Rose Taylor, an engineer who self-identified as gender fluid, suffered unlawful harassment and bullying because of her protected characteristic of gender reassignment. The employment judge found that ‘gender is a spectrum’ and that being non-binary or gender fluid comes within the protected characteristic of gender reassignment.
It should be borne in mind that this is a first instance decision and does not set a legal precedent. Jaguar Landrover may well appeal the decision. Nevertheless, the judgment is welcome to many in that it recognises that gender identity can take many forms and workers and employees should not be discriminated against for this reason.
This article was first published in Employment Law Journal.