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Gender reassignment protection within the Equality Act 2010

<!-- wp:paragraph --> <p>In a week where the Home Secretary suggested that fearing discrimination for being gay in one’s country of origin should not be sufficient to qualify for asylum, it seems a fitting time to review how the Equality Act 2010 protects those within the LGBTQ+ community in the workplace. This article will focus on the protection afforded to those with the protected characteristic of ‘gender reassignment.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Equality Act 2010</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Protection for individuals who are transgender is conferred by Section 7 of the Equality Act 2010 which makes ‘gender reassignment’ a protected characteristic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There are a few points to note at the outset:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li>The language of ‘gender reassignment’ within the anti-discrimination provisions originates in 1999. Awareness, understanding, and discussions around sex and gender identity have changed significantly since then.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act uses ‘sex’ and ‘gender’ interchangeably.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act uses the term ‘transsexual’ to refer to an individual who has the protected characteristic of gender reassignment. That term is now largely considered outdated, and this article will use the term ‘transgender’ instead.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>When it comes to the definition of ‘sex,’ the Equality Act 2010 does <strong><u>not</u></strong> define it as ‘biological sex’.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>What does ‘gender reassignment’ mean?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S.7(1) of the Equality Act defines a person who possesses the protected characteristic of gender reassignment as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘If the person 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’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The definition is a wide one. It includes individuals who have not yet taken any steps and are simply ‘proposing’ to take steps. It also makes it clear that reassigning one's sex is a process and that individuals on any part of that process will be protected. There is no requirement that a Gender Recognition Certificate should be obtained before an individual meets the definition. Finally, interestingly, the definition refers to ‘physiological <strong>or other attributes</strong> of sex’ which indicates an acceptance that sex is not entirely physiological.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Trans individuals are therefore protected from being discriminated against because they are trans. To take an example, an individual who is taken off client-facing duties shortly after informing their employer that they are trans will be able to bring a claim for direct gender reassignment discrimination. That individual has been subject to less favourable treatment (being removed from client-facing duties) because of their protected characteristic of gender reassignment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is also protection from harassment. Trans individuals who are subjected to offensive comments about their appearance, identity, choice of clothing, or anything related to gender reassignment will be able to bring claims under the Equality Act for harassment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Much was made of the Employment Appeal Tribunal’s decision to find that ‘gender-critical beliefs’ qualified as a protected belief under s.10 of the Equality Act. However, there is a distinction between holding such a belief and being permitted to manifest it. An employer cannot subject an individual with gender-critical beliefs to less favourable treatment because they hold those beliefs, but that does not mean that the individual is permitted to express those beliefs in a way which would constitute direct discrimination or harassment of a trans individual.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was demonstrated in <strong><em>Mackereth v Department for Work and Pensions [2022]</em></strong>. A Christian employee believed in the truth of the Bible, from which it followed that he believed people could not change their sex or gender. He refused to use the preferred pronouns of transgender service users. After discussions with the DWP, he left his employment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Appeal Tribunal rejected the claim of religion/belief discrimination. It held that the Claimant’s refusal to use preferred pronouns was distinct from his gender-critical beliefs. The reason that the DWP had subjected the Claimant to disciplinary action was not because he held gender-critical beliefs, but because he was not prepared to treat service users in the manner required by the DWP. Any employee who refused to do that would have been disciplined, regardless of their views.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What about non-binary and genderfluid individuals?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was initially some concern that the Equality Act did not include people who were genderfluid or non-binary, due to its use of the language ‘gender reassignment’ rather than ‘gender identity.’ However, in <strong><em>Taylor v Jaguar Land Rover [2020],</em> </strong>which is the only reported case to address the interpretation of s.7 of the Equality Act, the Tribunal held that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Case Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This article looks at two cases which touch on the entitlement for trans people to access bathrooms corresponding to their gender identity. Those cases are <strong><em>Taylor v Jaguar Land Rover [2020] </em></strong>and <strong><em>Croft v Royal Mail Group [2003]. </em></strong>In both cases, the Claimant was a transgender woman who was told to use the disabled toilet facilities, rather than the women’s toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Taylor, </em></strong>there was a successful claim that being told to use the disabled toilets constituted direct discrimination on the grounds of gender reassignment. In <strong><em>Croft, </em></strong>the Claimant was refused access to the women’s toilets and was instead asked to use a disabled unisex toilet. A claim for direct discrimination failed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Croft v Royal Mail Group Plc [2003] EWCA Civ 1045</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This claim preceded the Equality Act and was brought instead under the Sex Discrimination Act 1975. That Act prohibited discrimination on the grounds of gender reassignment in essentially identical wording to the Equality Act. However, in the Sex Discrimination Act, gender reassignment was defined differently (perhaps reflective of mainstream understanding at the time):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“‘Gender reassignment’ means <strong>a process which is undertaken under medical supervision</strong> for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex and includes any part of such a process.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant in <strong><em>Croft </em></strong>had been receiving treatment from her psychiatrist, who had confirmed that she was suffering from ‘gender identity disorder, male to female transsexualism.’ The Claimant was proposing to do a real-life test and live as a woman to ensure that it was the correct way for her to proceed. The Claimant had changed her name and was taking ‘feminising’ hormones. The Claimant was asked to use the unisex disabled toilets, but she wanted to use the women’s toilets. Her employer took the view that they needed to establish the medical position to see if the Claimant had undergone surgery before they would allow her to use the female toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the Claimant, Dinah Rose KC made submissions that were surprising given that it was 2003, being couched in language that is much more familiar today with the increasing awareness of the complexity and interplay between sex and gender. One of the submissions was that, save for exceptional circumstances contemplated in the legislation (which did not arise in this case), anatomical or biological sex was of no concern to the Respondent. The Respondent’s only concern was with social gender i.e. the sex in which employees present themselves. A person who lives and dresses as a woman has changed her name to a female name and sounds and looks like a woman must be treated in the workplace as a woman. There was no room for intrusive medical examination. Biological sex should remain private and there was no need for the Respondent to be informed of it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal seemed troubled by the situation. It commented that it was unacceptable to hold that the Claimant must continue to use the men’s toilets but stated that it was also unacceptable to allow a person, known to the workforce as a man for many years, and with male genitals, an immediate right to use the female toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court concluded that having the protected characteristic of gender reassignment did not automatically entitle the Claimant to be treated as a woman with respect to toilet facilities. Instead, it said that such a right was acquired by making progress in the procedure of transitioning (described at the time as psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision therapy (‘the real-life test’), and in suitable cases, gender reassignment surgery).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal held that the Tribunal ‘has to make a judgment as to when the employee becomes a woman and entitled to the same facilities as other women’ although regard must be had to the Claimant’s self-definition. It held:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It is in my judgment inherent in a situation in which two sets of facilities, male and female, are required and in which a category of persons changing from one sex to the other is recognised, that there must be a period during which the employer is entitled to make separate arrangements for those undergoing the change.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;It went on to hold that for the Claimant, who had reached the ‘real life test’ stage of the process, it was not unlawful to continue to require her to use separate facilities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The notion that it is for Employment Tribunals to determine when a transgender woman has ‘become a woman’ is troubling. The first-instance Tribunal had held that for the purposes of the Sex Discrimination Act, a change of sex only occurs ‘when the final operation to change the physical characteristics is performed.’ That would strip much of the protection away from those undergoing gender reassignment and would be entirely at odds with the position under the Gender Recognition Act 2004.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the submissions made on behalf of the Respondent was that a ‘voyeur or transvestite’ might assert that they identify as a woman in order to gain access to the women’s bathroom. Those familiar with arguments made by those in favour of excluding trans individuals from same-sex spaces will recognise the submission. It is countered in many ways, including by the recognition that a sign on a door is unlikely to prevent a voyeur from gaining access should they wish to.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The point that jumps out from the judgment is that it is not entirely clear why the claim fails. There is reference to the Respondent’s actions being appropriate, reasonable, and responsible. The difficulty is none of that is relevant for the purposes of a direct discrimination claim. The only factors to be considered as part of such a claim are: (1) was the Claimant treated less favourably; (2) was that because of her protected characteristic of gender reassignment? There was no doubt that the Claimant possessed the characteristic of gender reassignment and that the reason she had been told to use the disabled toilet was because of that characteristic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of whether or not the treatment was less favourable, the Court of Appeal found, effectively, that if the Respondent continued to act as it was, then its actions would become discriminatory. That suggests that the Court’s view was that telling the Claimant to use the disabled toilet would be less favourable treatment in the future but was not less favourable treatment in the present. That is a confusing conclusion to follow in circumstances when there is no doubt that somebody without the protected characteristic would not have been told to act in the same way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Taylor v Jaguar Land Rover 1304471/2018</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Taylor</em></strong>, the Claimant described herself as ‘gender fluid’ and ‘transitioning’ but made clear that she had no intention to undergo surgery. Whilst employed by the Respondent, she did not change her name to a female name. Her manager told her to use the disabled toilets instead of the women’s toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal found that the manager’s comment constituted direct gender reassignment discrimination. The reasoning of the Tribunal was simple: ‘a person who was not transitioning would not have been treated that way.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal commented that telling a transitioning person to use the disabled toilets is, at the very least, potentially offensive to them because it suggests that their protected characteristic equates to a disability. There also seemed to be implied criticism of an email from the Respondent informing the Claimant that she should use whichever toilets she felt comfortable using each day. The ET reflected that that put the onus on the Claimant to decide which toilets to use and to deal with any challenges made by colleagues who were unhappy with her choice.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision must be right. The comparison for the purposes of a direct discrimination claim must be with an individual in the same material circumstances as the Claimant but who was not transitioning. There was no doubt that an individual in those circumstances would not have been told to use the disabled toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discussion/thinking points</strong></p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><strong><em>Croft </em></strong>was decided before the Gender Recognition Act 2004 was passed. In <strong><em>Croft, </em></strong>the judgment of Lord Nicholls in <strong><em>Bellinger v Bellinger </em></strong>where he states, <em>‘Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable’</em> is cited with approval. Given that self-ID, at least in Scotland, is now sufficient for an individual to obtain a Gender Recognition Certificate, there is an argument that <strong><em>Croft </em></strong>would be decided differently today.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act is unclear when it comes to sex discrimination claims by transgender individuals. Once an individual has a Gender Recognition Certificate, they are to be treated for all purposes as a member of the acquired sex. So for example, a transgender woman with a GRC could undoubtedly bring a sex discrimination claim and rely upon her sex as a woman. Some may argue that the legal sex of a transgender woman without a GRC is male, and so a similar sex discrimination claim could not be brought. Others would point to <strong><em>A v Chief Constable of West Yorkshire Police [2004] UKHL 21 </em></strong>which held that a trans woman who was <em>‘visually and for all practical purposes indistinguishable from non-transsexual members of that gender’</em> was to be treated as a woman. The decision commented on the Gender Recognition Act, which was passed through Parliament at the time, stating: ‘<em>In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live.’</em></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Critics of the Gender Recognition Act may well point out that the Act itself falls somewhat short of achieving that policy aim, given the criteria for obtaining a GRC, including a need for two medical reports from different doctors. Notably, one of those reports has to be from a specialist in gender dysphoria. In the 2021 census, 262,000 people in England and Scotland identified as transgender. At the time of this Article, according to the government’s official list, there were 77 gender dysphoria specialists in England and only 7 in Scotland.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The issue over entitlement to single-sex spaces is focused overwhelmingly on trans women accessing women’s spaces. There is virtually no discussion over trans men accessing men’s spaces. For a direct sex discrimination claim brought by a trans woman prevented from accessing a woman’s space, can the argument be made that the comparator should be a trans man trying to access a men’s space?</li> <!-- /wp:list-item --></ol> <!-- /wp:list -->