In this guide for employees we outline the concept and practice of gender reassignment discrimination, explain what types of discrimination you as a transsexual person face at work and what you can do about it. We also consider how you may be able to prove discrimination and what kind of claim you could make.
This guide is intended to be read alongside our separate one on Discrimination compensation so you can work out how much compensation your claim could be worth.
We also have an introductory guide to discrimination which is intended for employees who don’t know a lot about the legal side of discrimination in the workplace.
Separate guides on each of the ‘characteristics’ that are protected from discrimination by the Equality Act 2010 are listed at the end.
This guide covers:
- What is gender reassignment discrimination?
- Types of gender reassignment discrimination
- What actions can you take against gender reassignment discrimination?
- How much compensation could you get for gender reassignment discrimination?
- How can you prove gender reassignment discrimination?
- If you’re dismissed should you claim discrimination or unfair dismissal?
- Next steps
What is gender reassignment discrimination?
Gender reassignment discrimination is essentially when you, as a transsexual or trans person, are treated badly or less favourably than someone else in a similar situation to you, because you identify with a different sex from that which you were assigned at birth.
According to the Equality Act 2010, you are protected from discrimination based on gender reassignment if you have undergone, are undergoing or intend to undergo a process of reassigning your gender from your birth sex.
This is not restricted to medical processes, such as hormone treatment or surgery. You can just be presenting as a different sex from that which you were assigned at birth. That includes presenting as ‘non-binary’ – that is, somewhere on the spectrum between male and female or ‘gender fluid’.
However, the protection of the Equality Act does not extend to you unless you propose to change your gender, or have already done so. Neither does it include being a transvestite – which is understood to be someone who wears clothes designed for the opposite sex but who doesn’t necessarily identify as transgender.
Types of gender reassignment discrimination
As with all other forms of discrimination under the Equality Act 2010, there are four main types of discrimination that can be applied to gender reassignment, as follows:
Direct gender reassignment discrimination
Direct discrimination is when you’re singled out for worse treatment than another employee in the same situation because you are transsexual and undergoing gender reassignment.
So for example, your employer invites all your colleagues at the same level as you to apply for promotion to a managerial role. But they don’t invite you. You ask them why and your manager tries to be polite but admits that they can’t see someone “in your situation” doing the managerial job.
In that situation, you would have a potential claim of direct gender reassignment discrimination.
Another example that went to a tribunal recently was when, at recruitment, the employer agreed that the new employee could use their preferred name, Alexandra, on her name badge. But then they accidentally used Alexander, and laughed when she corrected them.
Her colleagues also subsequently harassed her in more obvious ways, such as calling her inappropriate sexual names and spraying her with men’s perfume.
The tribunal found that the employer had directly discriminated against her by failing to investigate the matter properly. In this case, the employer was also held directly responsible for their employees’ abusive behaviour towards Alexandra.
Discrimination by perception
Direct discrimination also covers unfavourable treatment because someone thinks (or perceives) that you are transsexual, when in fact you aren’t.
Discrimination by association
It further applies if you are associated with someone who has reassigned their gender. So if you get treated less favourably than your colleagues because your partner is transgender, you’d have a claim.
Additionally, there is extra protection given by the legislation if you suffer less favourable treatment than someone else who was having time off due to illness or injury, due to your absences associated with undergoing gender reassignment.
Indirect gender reassignment discrimination
Indirect discrimination is when a policy or practice applies to all staff equally but has a negative effect on people in your situation.
It might be that your employer did anticipate the adverse effect that a particular policy or practice would have on you, in which case it could also amount to direct discrimination.
But indirect discrimination also covers situations where the business has no ill-feeling towards people in your situation but simply that their policies and practices are particularly difficult for you as a transsexual person dealing with gender reassignment issues.
Acas gives the example of an employer requiring all employees to take birth certificates with them when travelling abroad. This requirement would not generally be a problem for people who weren’t transsexual.
However, a trans person who had not yet applied for a new birth certificate would be put in a particularly difficult situation by that policy. The policy would therefore indirectly discriminate against trans employees.
Justifying indirect discrimination
With indirect discrimination, the employer has the opportunity to justify their policy or practice. It would be very difficult to justify the birth certificate example above.
However, if you got a job where you handled a lot of highly sensitive and confidential information, then your new employer might be justified in asking for a copy of your birth certificate in order to confirm your parentage and other details.
Harassment related to gender reassignment
Harassment is ‘unwanted conduct that has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading or offensive environment’ (Equality Act 2010). It is based on the victim’s perception, rather than on the perpetrator’s intention.
So if you’ve been verbally or physically harassed, laughed at, insulted or otherwise demeaned because you’re transsexual and are in the process of gender reassignment or have gone through it, that’s unlawful.
Victimisation related to gender reassignment
Victimisation is where you get badly treated because you have complained or supported a claim about gender reassignment discrimination. It could also apply if something just thinks you have done either of those things, whether you actually have or not.
For example, you think you’ve been treated badly because of a gender reassignment issue and you complain about it to your manager. She denies the allegation, but because you have made the complaint she also denies you a pay rise.
Even you hadn’t at first been treated badly because of gender reassignment issues, your claim for victimisation because you’d complained about it would be valid.
What actions can you take against gender reassignment discrimination?
If you want to do something about gender reassignment discrimination at work you have a few choices, including the following:
Raise a formal grievance
You could raise a formal grievance and the employer might investigate it fairly and you might be treated well from then on.
Make an employment tribunal claim
You could bring a discrimination claim at an employment tribunal, assuming you had the evidence to prove it.
Propose a settlement agreement
You could also threaten to bring a tribunal claim but suggest reaching a “settlement agreement” instead. That means you agree not to bring a tribunal claim if they pay you compensation for your ill-treatment and you also agree to leave your employment
Resign from your employment
As a last resort, you could resign and claim constructive unfair dismissal and discrimination. The problem lies with proving the claims when you are no longer employed and the time and effort it takes to bring a tribunal claim to a conclusion.
Overall, you’d probably be in a better situation to achieve a good outcome if you remained employed and tried to reach a settlement agreement involving termination of employment and a settlement payment.
How much compensation could you get for gender reassignment discrimination?
In theory, there is no upper limit on how much you could be awarded for discrimination in an employment tribunal claim, but in practice, you have to provide good evidence for everything you claim, which is by no means easy.
If you won a claim at an employment tribunal for gender reassignment discrimination, you’d be awarded a sum to represent injury to your feelings and possibly also personal injury, as well as actual financial loss.
Our guides on Discrimination compensation and also on Preparing your tribunal schedule of loss give you practical guidance on the levels of compensation you could get and how to calculate your own compensation entitlement. You can also obtain an estimate by using our calculator.
How can you prove gender reassignment discrimination?
It is hard to prove discrimination cases. There is probably a lot more discrimination in the workplace than the proportion of successful discrimination cases suggests. Few employers will explicitly admit to discriminating.
Sometimes there is very helpful written evidence. By the time of a tribunal hearing, the parties will have been obliged to disclose to the other side all relevant documents that they possess. They might even disclose an email saying something like, “I’m just not comfortable! He’s a man, not a woman! I can’t work with him.”
Often, however, acts of discrimination are one person’s word against the other. If colleagues made jokes about your identity, they might deny it and you would have to convince a tribunal that it happened. Or, they might admit some of the broad facts, but downplay the extent of their actions and you would want to paint a narrative that emphasised how awful the treatment was.
And think creatively about evidence. Imagine this: in a meeting your manager made derogatory comments about your gender identity. You leave the office angry and immediately write a message on WhatsApp to your partner or a friend saying how bad it was and describing the event in detail.
If that went to a tribunal, your message, vivid and straight after the event, would be good evidence. How else could the message be explained?
If you’re dismissed should you claim discrimination or unfair dismissal?
The question of whether it’s better to claim discrimination than unfair dismissal depends on your individual circumstances. For example:
- You don’t need two years’ minimum employment for a discrimination claim.
- Most unfair dismissal compensation is capped at one year’s gross salary or about £90K (in 2021 – 2022), whichever is the lower. That does not apply to discrimination claims.
- It is usually harder to prove discrimination than unfair dismissal.
So, if you haven’t been employed for two years or more, the discrimination claim route would most likely be the only one available to you.
However, if you have been employed for more than two years then you could possibly claim for both discrimination and unfair dismissal.
This is something that you really should discuss with a qualified employment solicitor – such as the legal team at Monaco Solicitors. It could make a significant difference to the overall value of your claim(s) and the level of your compensation payout.
If you are transsexual and having to cope with being discriminated against because of your gender reassignment issues, then you would be well advised to consult a specialist employment law firm such as Monaco Solicitors. We only represent employees – not employers – so always have your best interests at heart.
We also offer the kind of sensitive and confidential professional legal service that you need in a case such as this, as well as a friendly and understanding approach.
So get in touch today to see how we could help you: