Most trans people have the protected characteristic of gender reassignment. Section 7 of the Equality Act 2010 stipulates that a person is protected 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”.
In practice, section 7 describes an individual who is on a journey away from their birth sex. Crucially, that does not require any medical treatment or diagnosis. In January 2023, the High Court explained that this ‘process’ or journey might include changing one’s name or how one dresses.
Importantly, because the definition includes those who are “proposing to undergo” a process of reassignment, it is not necessary for an individual to have made any practical changes. What matters is that they have made a conscious and settled decision to embark upon such a process. There is no minimum age threshold for acquiring the protection of section 7, meaning that children are equally protected as adults.
Misgendering trans people in the workplace
Misgendering transgender people can amount to unlawful harassment and direct discrimination based on gender reassignment. If a transgender employee requests to be referred to by pronouns different to their birth sex, businesses can reasonably be expected to ensure others adhere to the request. For example, an employer would likely be held liable for discrimination if it fails to do so and if it fails to implement or enforce policies on this issue. However, it will likely not be held liable for a one-off instance of accidental misgendering. The context is essential to determining the lawfulness of any action.
The relationship between the protected characteristic of sex and gender reassignment
Among practitioners of equalities law and within policy circles, there is a debate about the proper relationship between the protected characteristics of sex and gender reassignment. The current case law makes one point clear: an individual’s legal sex cannot be changed without having first acquired a gender recognition certificate. Obtaining this requires an individual to have a medical diagnosis of gender dysphoria and for that person to have lived in their chosen gender for at least two years.
In a recent Scottish case brought by women’s campaign group For Women Scotland, the Court of Session in Edinburgh said that sex and gender reassignment were separate protected characteristics that should not be conflated. Therefore, a person who changes their legal sex by acquiring a gender recognition certificate can remain protected by section 7 of the Equality Act. It follows that an individual can be protected by both these protected characteristics.
This difference has practical relevance to disputes over equal pay, pregnancy and maternity discrimination. A plausible scenario might see a transgender employee, without a gender recognition certificate, face discrimination on the grounds of their unchanged legal sex.
Technically, this Scottish authority does not formally bind the English courts but this reasoning would likely be followed.
This is a complex area of law and employers should obtain legal advice if they are uncertain about its application or if they wish to implement new trans-inclusive policies in the workplace.
Sapandeep Singh Maini-Thompson is an employment barrister at No5 Barristers’ Chambers