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Gender Reassignment discrimination

Gender reassignment is a personal, social, and sometimes medical process by which a person's gender appears to others to have changed. Anyone who proposes to, starts or has completed a process to change his or her gender is protected from discrimination under the Equality Act. A person does not need to be undergoing medical supervision to be protected. So, for example, a woman who decides to live as a man without undergoing any medical procedures would be covered.

Key points

There are four types of discrimination.

Direct discrimination

Is when someone is treated differently and not as well as other people because of their gender reassignment. It breaks down into three different sorts of direct discrimination or treating someone 'less favourably' because of:

  • their own gender reassignment (direct discrimination)
  • a perception that they are undergoing gender reassignment (direct discrimination by perception)
  • their association with someone who has changed their gender (direct discrimination by association).

Indirect discrimination

Can occur where a workplace rule, practice or procedure is applied to all workers, but disadvantages people who want to undergo, are undergoing or have undergone gender reassignment. An example might be a rule or policy that makes individuals say if they have undergone gender reassignment.

Harassment

When unwanted conduct related to gender reassignment causes a distressing, humiliating or offensive environment for that person.

Victimisation

Treating an employee unfairly because they have made or supported a complaint about gender reassignment discrimination.

It is discrimination to treat transgendered, or trans, people less favourably for being absent from work because they want to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured.

Employers should ensure they have rules in place which help to prevent discrimination in:

  • recruitment and selection
  • determining pay
  • training and development
  • selection for promotion
  • discipline and grievances
  • countering bullying and harassment
  • taking time off work.

Employers can support trans people at work through.

  • Good Communication - Through the company rules, practices and procedures ensure that there are clear statements about the acceptance and support for different forms of gender identity and expression. Make it clear to staff, clients and customers that discrimination, harassment and victimisation because of gender reassignment are unlawful.
  • Support for individuals undergoing gender transitions - Discuss with the  person how they would like their colleagues to be told about their transition. Some trans people may feel comfortable talking about their transition with colleagues, but others may prefer not to.
  • Confidentiality - At a time agreed with the person, all personal records should be changed to the new name and gender. Access to personal records which state a person's previous gender should be retained only if necessary, and otherwise deleted or destroyed.

Employees should make sure that they consider the following.

  • Telling people about the situation. Make a list of the people who need to know. Speak to them personally, or ask HR or a line manager to communicate with them.
  • Medical appointments and absences. Make sure the employer knows about what  time off work will be needed. Remember that it is discrimination for an employer to treat a person worse if they are absent from work for a reason related to gender reassignment than you would be treated if you were absent because you are ill or injured, or if you were absent for some other reason.
  • Changing e mail, work passes etc. Changing name on email addresses, company directories, records and work pass will need to be done. Speak to the HR department at an early stage about how this should be done.

Making a claim for Gender Reassignment discrimination

If an employee feels they been discriminated against, they will be able to bring a claim to an Employment Tribunal. However, it's best to talk to their employer first to try to sort out the matter informally.

Claimants who wish to bring a claim to the tribunal or appeal tribunal will have to pay a fee. The first fee will be paid to issue a claim and a further fee will be payable if the claim goes to hearing. There are two levels of fee which will depend on the type of claim. Further information is available from Ministry of Justice - Employment Tribunal guidance.

Through the Acas Helpline you can get advice on specific problems, and explore alternatives to an Employment Tribunal claim, such as Mediation, where appropriate.

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