Latest legal developments in gender reassignment discrimination

In light of recent employment tribunal cases, Adam Penman provides an update on this area of legislation 

Latest legal developments in gender reassignment discrimination

Gender reassignment is one of nine protected characteristics covered by the Equality Act 2010. Although trans people make up approximately 1 per cent of the UK population, discrimination against trans people remains significant. Trans people are more likely to experience discrimination and even violence than any other minority group. According to a 2018 report, one in three employers are less likely to employ a trans person than a cis person.  

Paradoxically, it is notable that although discrimination against trans people in the employment context (and wider society) is rife, and in recent years the issue has been brought to the forefront by activists, there has been little employment-related case law over the same period. 

Moore v Debenhams In January this year, a transgender person who unsuccessfully applied for a temporary retail position at Debenhams in Northern Ireland settled a claim for discrimination for £9,000. The applicant had been anonymously tipped off that, despite performing well during the interview process, she was refused the position because of her gender identity. Although the terms of the settlement meant that Debenhams did not accept liability for discrimination, the claim in effect forced the nationwide store to review its recruitment and equal opportunities policies. 

Dr David Mackereth v The Department for Work and Pensions and Advanced Personnel Management Group (UK) In July 2019, an employment tribunal held that it was “incompatible with human dignity” for a Christian disability assessor and doctor working for the Department for Work and Pensions to refuse to refer to trans patients using their chosen pronouns because the assessor was a ‘conscientious objector’. The case illustrates the tribunal’s willingness to assert that, despite the ongoing public debate about the legitimacy of calling trans people by a pronoun different from their assigned sex at birth, there is no place in modern employment environments to impose one’s own philosophical beliefs about gender reassignment on another.  

It could have been argued at that point that, had the doctor expressed his views in a private capacity and not in a professional one with the effect that his trans patients felt degraded, and was dismissed for those private views, the claimant may have had a successful claim. 

Maya Forstater v Centre for Global Development However, in December 2019, that very scenario was presented to a tribunal. Maya Forstater, a tax specialist employed by the Centre for Global Development, did not have her visiting fellowship renewed because of “offensive” tweets she wrote in a personal capacity, challenging government proposals to permit people to self-identify as another gender. 

The tribunal held that Forstater’s “gender critical” view did not qualify as a philosophical belief (protected itself under the Equality Act) and such a belief was not “worthy of respect in a democratic society”. It was held that Forstater’s belief, no matter how sincerely or widely held in society, caused serious harm to trans people, who are legally the gender stated on their gender recognition certificate. 

Gender Recognition Act reform

Although recent cases have made clear that trans rights can qualify freedom of expression, the legal protection offered to trans people under the Equality Act and the Gender Recognition Act 2004 (GRA) has been criticised as inadequate. Under the current GRA, a trans person must wait for two years to apply to be reviewed, or appear before a specialist panel and pay £140 for a gender recognition certificate – steps that some feel are traumatic and degrading. 

In July 2018, the Government Equalities Office widely consulted on proposals to reform the GRA to facilitate the application process. The consultation solicited opinion on easing the administrative burden of applying for a gender recognition certificate and eliminating the requirements for a medical diagnosis of gender dysphoria and proving that an applicant has, for two years, lived as their chosen gender. Although the consultation ended in October 2018, legislative reform in the UK has stalled. 

Adam Penman is an employment lawyer at McGuireWoods