Transgender Discrimination in the Workplace

Although the majority of high-profile cases involving transgender issues have concerned whether gender-critical views are a protected philosophical belief under the Equality Act, employment tribunal claims involving alleged transgender discrimination are increasing. Indeed, a number of recent employment tribunal decisions have involved transgender discrimination and we can learn some important lessons from the tribunals’ approach in those cases.

This article considers transgender discrimination protection and also sets out some practical steps employers can take to reduce transgender discrimination risks and to provide an inclusive and supportive workplace for trans employees. 

The Equality Act – Forms of gender discrimination protection

Sex discrimination

Men and women have the protected characteristic of sex under the Equality Act, which provides that sex is “a reference to a man or to a woman”. It defines man and woman as “a male of any age” and “a female of any age” respectively. Sex discrimination occurs where an individual is treated less favourably on the grounds of their sex (direct discrimination) or where there’s a rule, policy or practice which someone of a particular sex is less likely to be able to meet, and this places them at a disadvantage, to the opposite sex (indirect discrimination).

Transgender (trans), or gender reassignment, discrimination

Gender reassignment, which is defined as “a reference to a transsexual person”, is also a protected characteristic. As with sex discrimination and harassment, direct and indirect discrimination because of gender reassignment and harassment related to gender reassignment are unlawful. In addition, individuals are protected from less favourable treatment connected with absences because of gender reassignment.

The Equality Act protects a person 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". Essentially trans people are those whose gender identity does not match the gender they were assigned at birth. The same protection from discrimination applies to those who have undergone a medical process as those who are taking hormone supplements with a view to undergoing surgery. Transvestites and cross dressers are not included in this definition unless they are wearing clothes normally associated with the opposite sex as part of the process of re-assigning their gender identity. In any event, the individual must at least be “proposing to undergo” gender reassignment in order to be protected from discrimination.

Although gender identity and sexual orientation are completely separate issues, where an employer perceives (wrongly) that a trans person has a particular sexual orientation and, because of that, does something which puts that person at a disadvantage, this would be an example of sexual orientation discrimination.

Gender recognition

A trans person can, but doesn’t have to, apply for a Gender Recognition Certificate (GRC). Once a full GRC has been issued, the person's gender becomes, for all purposes, the “acquired gender” according to the Gender Recognition Act 2004. Individuals must meet certain criteria to be eligible for a GRC, including that they have lived in the acquired gender for two years and they have a formal diagnosis of gender dysphoria. 

Although the Scottish Parliament passed the Gender Recognition (Scotland) Bill, which was designed to simplify the process of obtaining a GRC, this Bill was blocked by Westminster and a recent legal challenge by the Scottish Government against Westminster’s blocking of the Bill was unsuccessful. So the gender recognition eligibility criteria remain unchanged. 

The courts have recently faced challenges on gender recognition. In For Women Scotland Ltd v Scottish Ministers, the campaign group For Women Scotland, which works to “protect and strengthen women and children’s rights”, sought to argue that the Equality Act definition of “woman” (“a female of any age”) should be taken as a reference to a biological woman and that any attempt to conflate that concept with that of a person who has an acquired gender of female under a GRC is impermissible. However, the Court of Session disagreed with this assessment and held that the definition of “woman” under the Equality Act must include trans women with a GRC. 

This judgment is binding on courts and tribunals in Scotland. Whilst technically it isn’t binding on employment tribunals or the Employment Appeal Tribunal outside Scotland, it will be highly persuasive and should ordinarily be followed in cases where the definition of “woman” is in dispute.

That said, in April 2023 the Equalities and Human Rights Commission (EHRC) advised that the definition of “sex” under the Act should be amended to mean “biological sex”. The EHRC suggested that this amendment would provide clarity in various areas such as pregnancy and maternity and sport. It acknowledged, however, that it is difficult to achieve a straightforward balance of rights here and that its advice is undoubtedly controversial. Indeed, in light of the EHRC’s advice, it is set to undergo a “special review” by the Global Alliance of National Human Rights Institutions which reportedly could lead to the EHRC being downgraded and blocked from United Nations rights bodies. However, it remains to be seen what, if anything, the government will do in response to the EHRC’s advice.

Gender reassignment discrimination – Recent employment tribunal decisions

The number of claims involving alleged transgender discrimination has increased significantly in the last couple of years and, although to date only a small number of these cases have reached a final hearing, they have each had substantial consequences for the employers involved. 

In Taylor v Jaguar Land Rover Ltd, an employment tribunal ruled that a gender fluid/non-binary employee was covered by the definition of gender reassignment. Ms Taylor, who usually dressed in women's clothing, was subjected to insults and abusive jokes at work and did not receive managerial support. Her claims for gender reassignment discrimination, harassment and victimisation were successful, and she was awarded £180,000 in compensation.

The tribunal was critical of Jaguar’s internal processes and managers’ apparent lack of understanding of equality issues. On the tribunal’s recommendation, Jaguar agreed to appoint a Board member as its D&I Champion and to commission a diversity organisation to investigate and report on D&I at Jaguar. This process will then be carried out annually for a further five years to report on the progress made on D&I. All of these reports are to be sent to employees and made public.

More recently, in AB v Royal Borough of Kingston upon Thames, a tribunal held that an employer which failed repeatedly to update its records to refer to the employee’s post-transition name (“deadnaming”) had subjected her to direct gender reassignment discrimination. Indeed, the tribunal found that despite the employer being given a number of months’ notice of her intended transition, the employee had suffered a “long and painful struggle” to change her name on the employer’s records and systems, a process which took over two years from her transition.

Employers should be wary of deadnaming trans employees and should take proactive steps to ensure that their records and systems are updated so that the employee’s preferred name is used in all aspects of their employment. It isn’t necessary for the employee to have a GRC for this purpose.

The issue of deadnaming also arose, but in very different circumstances, in Monroe v Central Bedfordshire Council. Ms Monroe, a transgender woman, argued that she was harassed in relation to her gender reassignment because she was deadnamed on the staff rota. She was in the early stages of transitioning when she began working for the Council and was using the names ‘”Andy” and “Mandi” at work. Ms Monroe was asked what name they should use for her on the staff rota to ensure they were consistent with how she was referred to at work in order to avoid confusion. She did not complain at the time, or thereafter, about being referred to as Andy on the rota. 

A tribunal held that, while the discussion about her name related to the protected characteristic of gender reassignment, it was not unwanted conduct. The tribunal considered that clarifying how Ms Monroe should be addressed was not conduct that had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. 

Provided that employers deal in a respectful and sensitive manner with the issue of which name a trans employee should be referred to at work, this discussion should not amount to harassment relating to their gender reassignment.

In another recent case, Fischer v London United Busways Limited, a colleague referred to Ms Fischer, a trans woman, as a “w****r”. The tribunal acknowledged that the use of gendered swear words was capable in principle of amounting to gender reassignment discrimination. 

By providing regular training on equality issues for staff, not only does this reduce the risk of discriminatory behaviour arising in the first place but means employers may be able to use the “all reasonable steps” defence under the Equality Act to avoid liability. 

Indeed, although Ms Fischer's discrimination claim ultimately failed, the tribunal nevertheless considered whether LUB could rely on the "all reasonable steps" defence and noted a number of additional steps that could have been taken by LUB, including:

• Ensuring its equal opportunities policies complied with the EHRC Employment Statutory Code of Practice, which included giving examples of what is and isn’t appropriate behaviour, identifying who is responsible for the policy and setting out details of its monitoring and review procedures, and drawing the policy up in consultation with workers and any recognised trade union or other workplace representative
• Focusing on inclusion in its policies, rather than on equality alone
• Ensuring policies are readily available to staff and that they are understood
• Raising awareness of equal opportunities generally, but especially transgender awareness
• Setting up employee representative groups, for example an LGBTQ+ group - the tribunal noted that, in an organisation the size of LUB, it was surprising that no such groups existed 

What steps should employers take?

Employers should take steps to create and foster an inclusive and supportive culture, sensitive to the needs of transgender staff. HR and those with management responsibility should be familiar with steps they can take to support trans colleagues - CIPD has published useful guidance, Transgender and non-binary inclusion at work. 

That said, and although we are not specifically looking at the issue of gender critical beliefs in this update, employers must also ensure they take a balanced approach to employees’ individual rights when weighing up how to manage potential conflict between different protected characteristics (e.g. transgender rights and philosophical beliefs). 

In any event, employers should ensure that they: 

• Update policies: Equal opportunities policies should comply with the EHRC Code of Practice and are up to date. These policies should focus on inclusion as well as equality. It’s also important to ensure your policies are understood and are readily available to staff.
• Provide regular training: Equality diversity and inclusion training for staff and managers should include guidance on gender identity issues, including appropriate use of pronouns and terminology. The training should also make it clear what is expected of staff and how discriminatory behaviour and harassment will be dealt with.
• Provide a supportive culture: A sensitive and confidential culture of open communication is needed to build trust and enable transgender employees to feel comfortable discussing their past, current or future transitioning with HR, their manager or a colleague. Employers should also consider setting up an employee representative group, such as an LGBTQ+ group. 
• Act promptly: Concerns raised by employees should be investigated and dealt with appropriately and handled sensitively.