Guidelines
Those who have undergone or are undergoing Gender Reassignment are protected under the Equality Act (2010) from being discriminated against because of their reassignment. This is currently a topic that continues to be a controversial and often heated debate and presents a potential mine field for employers. This is because of an ambiguity within the Equality Act, the need for this to sit alongside the Gender Recognition Act and the impact of the Taylor v. Jaguar Land Rover and the Maya Forstater v Centre for Global Development cases.
The EA states that the protected characteristic applies to 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”. Guidance on the Act makes it clear that changing gender is a personal rather than a medical process. Therefore, medical intervention and medical processes are not required for a person to meet the definition and acquire the protection of the Act. To be protected, a person needs to have at least proposed to change his or her 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. This interpretation was applied by the Tribunal in the Taylor v. JLR judgement. In that case, Ms Taylor, a biological man who expressed no intent to surgically transition to being female and who described herself as being ‘gender-fluid’. The Tribunal found that she did fall under the protected characteristic of Gender Reassignment. Amongst her complaints, Ms Taylor said that she had been instructed to use the Company’s disabled toilets and had been subjected to denigrating comments and harassment in the workplace. It should be noted that this case represents a preliminary decision from a case-law perspective and it cannot be certain that a future Tribunal will apply a similar interpretation, although it should be noted that JLR did not appeal the judgement.
The Maya Forstater case raised a complicating and potentially conflicting issue. Ms Forstater submitted a claim against CGD, who did not renew her contract because of complaints they had received about her ‘misgendering’ an individual and had also ‘tweeted’ that a person cannot change his or her biological sex. Ms Forstater claimed that she had been discriminated against for holding and expressing a ‘Philosophical Belief’. The first Tribunal found against her on the grounds that this ‘belief’ was not one ‘worthy of respect in a democratic society’. However, this judgement was overturned on appeal to the EAT, which, by implication, created the precedent that holding gender critical views is a protected characteristic under the EA.
A further complication is that the Act protects transsexual people who choose to cross-dress as part of the process of transitioning to live as their non-birth gender. However, the Act does not protect transvestites who choose to temporarily cross-dress for other reasons. However, a transvestite who is mistakenly perceived as a transsexual person and discriminated against because they are perceived to be a transsexual person, this would be discrimination by perception.
As this topic is currently one of considerable social and political debate we can expect to see more legislation and hopefully greater clarity in the coming months and years.
In the interim, the following are representative of recommendations various sources have made in the light of Taylor n. JLR:
