What the Equality Act says about gender reassignment discrimination

Extract from the EHRC website 5 April 2022:

“The Equality Act 2010 says that you must not be discriminated against because you are transsexual, when your gender identity is different from the sex assigned to you when you were born. For example:

• a person who was born female decides to spend the rest of his life as a man

In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one.

You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it. 

The Equality Act says that you must not be discriminated against because:

• of your gender reassignment as a transsexual”.

The new EHRC guidance

Because the guidance (which we understand is not legally binding in anyway) appears to step away from the basic principle that any employee should be treated as they identify, the guidance is likely to be subject to judicial review and certainly any employers who follow this new guidance may in our view be at risk of successful discrimination claims at Employment Tribunal.

The Guidance proposes a range of scenarios where people can make judgements about the appropriateness of a trans inclusive approach, to the detriment of trans colleagues.

https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-provisions-equality-act

Our suggestions to members are:

• Continue to apply the principles of the Equality Act
• Reach out to your networks to offer support as this new guidance is causing considerable upset and fear for trans colleagues

Disclaimer

The information contained in this guidance note is for general information purposes only. The information is provided by Inclusive Employers Limited and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the information, contained. Any reliance you place on such information is strictly at your own risk.

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In an interview filled with beautiful and emotive moments, this may be the one that stayed with me the most. The beauty of seeing someone’s joy at finding their true self. The admiration of looking at someone who is ready to embrace who they truly are. The joy of seeing someone experiencing the happiness of looking in the mirror and seeing someone who represents their real identity, and who is on a journey of understanding who they really are.

And that is absolutely beautiful.

The experiences of the trans community

Feeling amazing. Feeling authentic. Feeling real. Aren’t these feelings that any of us wish to experience ourselves? Aren’t these feelings that any of us would wish for those that we love and care for? And yet, why does punishment come again and again to a community who goes through an experience that, unfortunately, many people out there do not give themselves the opportunity to have. I am talking about the experience of holding a mirror in front of you and asking yourself: who am I? Who do I truly represent when I look at myself in the mirror or interact with others? Is this who I truly am, or is this a version of myself that has been shaped by the expectations of others?

These are some of the themes I see coming up again and again when I speak to or hear from the Trans community. This is deep stuff. And it is also complex. And it can be painful. The experience of finding oneself is not always an easy one for anyone out there. And despite all the pain, many Trans people out there have chosen the path of courage: the path of living life as their true selves, of embracing who they really are. Like Elliot Page, the experience of looking at oneself in the mirror and being able to say ‘Oh, there I am!’.

Being a trans and non-binary ally

As a trans and non-binary ally, I am in total awe of this courage. Growing up a gay boy in a very conservative part of Brazil, I am very aware that, in order to survive, much less thrive, I have felt the need to conform to gender norms and gender expectations: ways of behaving, ways of dressing, ways of being. I felt the need to buy into the heteronormal dream, the nonsense of dolls for girls, action figures for boys, pink for girls, blue for boys, dance and gymnastics for girls, football for boys. I felt this never represented me. And yet as a survival mechanism, many times I conformed and let my persona be shaped by society’s expectations on who I should be. And I see this happening to so many of us in the LGBTQ+ community – subconsciously and consciously being forced to conform and assimilate to gender and societal norms that do not represent our true essence.

And now as an adult man I look at my friends and familia in the Trans and Non-Binary communities – so many who chose not to conform to what they were told was better for them. So many people who chose courage and authenticity over conformity, often at the cost of relationships with family and friends. Many people who give themselves the opportunity to ask themselves: “what’s the real and authentic version of me?”.

Questions and reflections that all of us would benefit immensely from asking ourselves on a regular basis. However, society still fears people and communities who choose to be real, who choose to be authentic. And that forces us to conform. The maturity required to understand oneself, the courage needed to embrace who you truly are in spite of all odds, the beauty of being the real you and not another person’s version of you. Instead of serving as fodder for prosecution, aren’t these qualities we should be celebrating?

It is clear we still have much to learn from the Trans and Non-Binary communities.

If you would like further advice on how your organisation can support your trans, non-binary and all LGBTQ+ colleagues, please get in touch.

You can read Inclusive Employer’s Statement for Trans Inclusion here.

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As a trans person, TDOR is an important time for silence and reflection. It is also quite a tough day to get through as it brings into sharp focus the risk my siblings in the trans community face. I am in a  privileged position in that I am valued and cared for by my employer, I have a supportive community around me and as a white trans man with minimal public profile I am often invisible and therefore broadly safe from transphobia and abuse.

However this does not mean that the seemingly endless torrent of transphobia on social media and in the Press doesn’t get me down, or that there isn’t a part of me that worries I will face hostility whenever I have a speaking engagement or panel discussion. Increasingly the advancement of trans rights is becoming an area that the trans community cannot assume ‘like-minded people’ around us will support, and employers cannot take it for granted that trans people in their organisation feel safe at work.

Here at Inclusive Employers we work hard to ensure trans inclusion informs all of our work, and this year we’re taking that further by releasing our trans inclusion statement and, over the coming months, expanding the ‘trans inclusion’ section of our website.

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