What is it?
The Equality Act 2010 is a law that applies in England, Scotland and Wales. It refers to nine protected characteristics:
- gender reassignment
- marriage or civil partnership
- pregnancy or maternity leave
- religion or belief
- sexual orientation
The characteristic of “gender reassignment” is defined in the act as:
“A person has the protected characteristic of gender reassignment 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.”
The EHRC Code of Conduct in relation to the Equality Act, offers the following clarification:
“2.19 Under the Act ‘gender reassignment’ is a personal process, that is, moving away from one’s birth sex to the preferred gender, rather than a medical process.”
This means that from the moment they begin their social transition (for example asking to be called a different names or starting to use different pronouns), trans people of any age are protected under the “gender reassignment” characteristic. There is no requirement to have obtained legal gender recognition or to have had any medical intervention. Non-binary people are protected from discrimination under the Equality Act, as they are protected under the “gender reassignment” characteristic.
What does it mean for trans people?
Under the Equality Act trans people are entitled to freedom from discrimination:
- at work
- in education
- as a consumer
- when renting or buying a property
- as a member or guest of a private club
The EHRC code of conduct on the Equality Act states:
“13.57 If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim.”
“13.60 Any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances.”
This means that trans men are entitled to be treated the same as any other man and to access men-only spaces and services. Similarly, trans women are entitled to be treated the same as any other woman and to access women-only spaces. Under the law, exceptions to this may be applied on a case by case basis if it is shown to be proportionate and justifiable to do so. The legal bar for what is proportionate and justifiable is set very high and is rarely challenged. For example, if a trans woman had a history of sexually harassing other women it may be justifiable and proportionate to deny her membership of a women-only society and the application of the exception under the law would be legal. However, if the same women-only society banned all trans women, it would be a breach of the Equality Act because the decision would not be proportionate, justifiable or taken on a case by case basis.
The protected characteristic of “gender reassignment” does not apply to trans people’s rights to take part in competitive sports if teams or competitions are split by sex/gender. Trans inclusion policies are at the discretion of each individual sporting body.
These exceptions do not relate to whether or not a trans person has a Gender Recognition Certificate (GRC). In their response to the 2018 consultation on the Gender Recognition Act, the EHRC state that:
“The exceptions permitting different treatment on the basis of gender reassignment in the EA 2010 (for example the exceptions related to single-sex services and associations) do not hinge on whether or not an individual has a GRC.”
In relation to discrimination on the basis of the protected characteristic of sex, the EHRC state that
“Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment.”
The Public Sector Equality Duty
The Public Sector Equality Duty applies to all public authorities – for example local councils, schools, council run leisure centres. It states that public authorities in the UK must:
- eliminate unlawful discrimination
- advance equality of opportunity between people who share a protected characteristic and those who don’t
- foster or encourage good relations between people who share a protected characteristic and those who don’t
What is transphobic discrimination?
There are four types of transphobic discrimination:
- Direct discrimination is when you are treated less favourably than others because you are trans. For example, if you lose your job when your employer finds out you’re trans.
- Indirect discrimination is when rules or arrangements are in place that put trans people at an unfair disadvantage. For example, a clinical commissioning group deciding not to fund hysterectomies for anyone without children unless they have endometriosis or cancer. This would disproportionately impact trans men and some non-binary people.
- Harassment is unwanted behaviour that violates someone’s dignity or causes them offense. To be transphobic discrimination, the behaviour needs to be linked to someone being trans. For example, somebody sending a trans person messages which intentionally misgender them.
- Victimisation is when a trans person is treated badly because they have made a complaint about transphobic discrimination. For example, a trans person who had complained about transphobic discrimination then being chosen for redundancy.
For a more detailed explanation of transphobia, visit this page.
What should I do if I experience discrimination?
If you experience discrimination at work you could:
- make a formal complaint
- talk to your trade union rep
- make a claim via an employment tribunal
- pursue a court case or tribunal
If you experience discrimination outside the workplace you could:
- make a formal complaint
- seek mediation
- make a complaint to the industry ombudsman (if your formal complaint was not resolved)
If you experience transphobic harassment, it might also be a hate crime. You’ll find more information about hate crimes here.
What about single-sex spaces?
Where can I read more about my rights under the Equality Act?