More people than ever before identify as transgender (or ‘trans’) and argue that their ‘gender identity’ is, or should be, protected by discrimination law. Others contest this, saying that biological sex matters more, and have argued that this ‘gender-critical’ belief is protected. How should employers navigate this controversy?
What is gender identity?
Advocates for stronger transgender rights claim that everyone has an innate gender identity - i.e. that everyone identifies as a gender, something that usually (but not always) corresponds with sex as assigned or identified at their birth: if it doesn't correspond, then they are trans. In some cases, people say that they are ’non-binary’, usually understood to mean that they do not identify with either sex, which is also considered to fall under the trans umbrella. Others dispute that gender identity exists in any meaningful sense or, if it does exist, that it should carry any legal implications.
What does the law protect?
The Equality Act 2010 prohibits discrimination (less favourable treatment) or harassment at work if it is on the grounds of one of the protected characteristics. Relevant here are the characteristics of gender reassignment, sex and religion or belief.
Despite what many people believe, gender identity as such is not expressly protected. Employers are free to introduce policies they might see as ‘trans inclusive’ to accommodate different gender identities and many have. For instance, some employers now invite staff to state their preferred pronouns, on their email signatures. But this is not required and to mandate it might even be unlawful (see, below).
So what is gender reassignment?
This is defined in the Equality Act as when someone is "proposing to undergo, is undergoing or has undergone a process (or part of a process) to reassign the person's sex by changing physiological or other attributes of sex." This does not require medical treatment and does not require the person to change sex legally, though that is possible under the process set out in the Gender Recognition Act 2004.
How far does this law extend?
The law on gender reassignment has been criticised for not fully protecting trans staff. For instance, whether it extends to protect cross-dressers is unclear. The explanatory notes to the legislation say that the protection applies only to those who cross-dress as part of gender reassignment and not merely because the person temporarily appears as the opposite sex. However, a controversial employment tribunal decision in 2020 held that a ‘gender-fluid’ or non-binary employee (born male) who was abused by colleagues after dressing in women’s clothing did have legal protection. Being just a tribunal decision, that isn’t a binding authority. So the picture is confused.
Is there an exception that allows discrimination against trans employees?
Yes, in rare cases it might be a genuine occupational requirement not to be trans. An employer might say that not being trans was crucial for a role, such as being a counsellor at a rape crisis centre or a religious minister.
How is sex relevant?
The Equality Act protects sex (defined in binary terms as either male or female), not gender or gender identity. But it also allows for exceptions from the basic principle of non-discrimination by allowing for single-sex spaces, most notably lavatories. The difficulty arises as to what an employer should do when an employee declares they identify as the opposite sex. Existing legislation has nothing to say specifically on how they should be addressed or what lavatory they should then use. However, it could be harassment based on gender reassignment to persistently address them not as their preferred gender (sometimes called ‘misgendering’) or humiliate them by not allowing the use of their preferred facilities. Still, female staff might object if an anatomically male employee was to use their facilities. This is why some larger employers are looking to install ‘gender neutral’ lavatories.
What if someone has gender-critical views?
This is the belief that biological sex is immutable and that it should not be replaced by the concept of gender. In a landmark appeal case last year, Forstater, it was held that this is a protected philosophical belief, meaning that firms can’t dismiss someone for holding it, just as they can’t dismiss someone for a religious belief. Doing so would be direct discrimination.
Some other implications of Forstater
This does not mean that the gender-critical employee would be free to harass a trans colleague by, for example, persistently and deliberately misgendering them. There is a distinction to be drawn between, on the one hand, staff holding different beliefs and, on the other, manifestations or expressions of those beliefs in the workplace. However, the case does imply that mandating all staff to declare their ‘preferred pronouns’ might be unlawful as it could be forcing some of them to express a belief that they do not hold.
Please contact the Employment department at 3CS or your usual 3CS contact