These pages summarise general legal information relating to the rights of transgender and/or non-binary individuals under the law in England and Wales. This information represents our understanding of these rights at the original time of publication of this information. It is not intended to give specific legal advice on which you should rely. If you require legal advice, or further details on any matter referred to, please consult an independent legal professional.
What is it?
The Equality Act 2010 is a law that applies in England, Scotland and Wales. It refers to nine protected characteristics:
- age
- disability
- gender reassignment
- marriage or civil partnership
- pregnancy or maternity leave
- race
- religion or belief
- sex
- 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
If you are treated less favourably by an employer or service provider because you are trans, this is discrimination. Whether this discrimination is “unlawful”, will depend on a variety of factors.
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).
Single-sex services and spaces
For the purposes of the Equality Act 2010, trans people are treated as the “sex” indicated on their original birth certificate, even if they have a GRC.
Services can be limited to one “sex” or provided separately/ differently for each “sex” where specific conditions are met. This can only be if it is a “proportionate means of achieving a legitimate aim”.
This means services can only have a single-sex space that excludes trans people if it is the least restrictive measure to achieve a justifiable aim (such as privacy or safety).
However, services will still have to be sure not to put trans people (whether they have a GRC or not) at an unjustifiable disadvantage as a result of the segregation. If they do, a trans person (with the ‘gender reassignment’ protected characteristic) may be able to claim unlawful discrimination, especially if they are left without access to any service because none are available or because they feel uncomfortable using their “biological sex” service.
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.
Where can I read more about my rights under the Equality Act?
https://www.acas.org.uk/discrimination-and-bullying
Citizens Advice Bureau: When discrimination is allowed
https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination
https://www.gov.uk/discrimination-your-rights
https://www.tuc.org.uk/union-reps/equality-and-discrimination
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