The law makes it perfectly clear that discrimination based on gender is not only unacceptable, but illegal. But what happens if you’re gender-fluid, or you are transgender? Since the 1990s there has been legislation in place to help protect those who are transgender, including protection against discrimination in the workplace.
A series of recent cases (particularly in the US) have highlighted the fact that no matter how much legislation is passed and how vocally employers claim that they are aware of the needs of gender-fluid and trans people, there is still a great deal to be done to remove some of the prejudice and barriers that still remain in place.
In 2004, the Gender Recognition Act was introduced to allow people to change their legal gender. This allows those with what is commonly referred to as gender dysphoria legal recognition that is appropriate to their acquired gender, as opposed to their gender at birth. This means transgender people can apply for a new birth certificate in their acquired sex, giving them legal standing. It effectively means that a transgender person born as a man could be legally regarded as a woman, and vice versa. Those applying for Gender Recognition Certificates under the legislation still have to jump through some serious hoops, though, including having transitioned for two years before a certificate is granted.
In 2017 the Scottish government updated the GRA, claiming the Act was ‘outdated and intrusive’, but revisions are still to be considered in the UK. That means transgender people must still go through an extensive process to be legally recognised as the gender they identify with.
The Sex Discrimination Act also makes it illegal to discriminate against someone on the basis of anatomical sex in the workplace, legislation that was added to by the Sex Discrimination (Gender Reassignment) Regulations in 1999. The Equality Act 2010 also tacked on some provisos, classifying gender reassignment as a ‘protected characteristic’. This still seems somewhat outdated, and campaigners are calling for a ‘gender identity’ category to provide clearer guidelines, especially when it comes to people who do not identify as transgender or transsexual, but are instead regarded as ‘gender-fluid’.
It is this confusion as to the terminology and exactly which groups are protected in law that has led to several stumbles by employers and service providers when it comes to catering to the needs of transgender and gender fluid people.
The law makes it very clear – discrimination against transgender and gender-fluid people is illegal. Unlawful discrimination includes:
• ‘Outing’ someone as transgender without their permission
• Putting in occupational requirements that prevent transsexual or gender-fluid people from fulfilling the job based solely on their orientation
• Harassment that includes violating the dignity of another person or intimidating, degrading or humiliating them in any way
• Treating transgender workers in a less favourable way or generally discriminate against someone undergoing or who has undergone gender reassignment, or who identifies as gender-fluid or asexual.
In short, the gender that a person identifies with should have absolutely no bearing on how they are treated as an employee, or as a customer. From being able to wear clothes that are appropriate to their chosen gender through to using the toilet or bathroom that is applicable to their expressed gender identity are all part of the process. Employers must realise that the days of just catering to ‘men’ and ‘women’ are over, and that identity now includes a much more diverse range of gender definitions.
If you require any legal advice on discrimination or employment issues please contact Michelle Morgan, Senior Associate Employment Solicitor based in our Maidenhead office.