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Gender Reassignment

What the law says

The Equality Act 2010 makes it unlawful to discriminate against, harass or victimise a person because they are proposing to undergo, are undergoing or have undergone gender reassignment.

The Act defines gender reassignment as ‘where a person has proposed, started or completed a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’. The definition of gender reassignment no longer requires the person to be under medical supervision to be protected by the law. A transsexual person also has the protected characteristic of gender reassignment.

The Act makes it unlawful to discriminate on the grounds of gender reassignment and also protects from discrimination because of perceived gender reassignment and discrimination because of association with someone who intends to undergo, is undergoing or has undergone gender reassignment. People undergoing gender reassignment are also protected from discrimination due to absence from work. Absence because of gender reassignment should be treated no less favourably than if absence was due to sickness, injury or another reason.

The Act protects against discrimination, harassment and victimisation because of gender reassignment in:

  • Employment

  • Higher Education

  • Provision of services, goods and facilities

  • Provision of recreational or training facilities

What does the Act cover in relation to employment?

The Act provides protection against discrimination, victimisation and harassment on the grounds of gender reassignment throughout the whole employment relationship, including:

  • recruitment and selection

  • terms of employment

  • benefits provided during employment and on termination

  • promotion opportunities

  • access to training

  • dismissal (including redundancy)

  • retirement  

  • post termination discrimination and harassment

What does the Act cover in relation to Higher Education?

The Act makes it unlawful for the governing body of a HEI to discriminate against or victimise a person/student because of gender reassignment in any of the following ways:

  • in the arrangements it makes for deciding who is offered admission as a student

  • in the terms on which it offers to admit the person as a student

  • by not admitting the person as a student

  • in the way it provides education for the student

  • in the way it affords the student access to a benefit, facility or service

  • by not providing education for the student

  • by not affording the student access to a benefit, facility or service

  • by excluding the student

  • by subjecting the student to any other detriment

What does the Act cover in relation to the provision of services, goods and facilities?

HEIs provide a range of services to both staff and students, such as childcare services, libraries and careers and employment services, and as such are considered to be service providers.

The Act makes it unlawful to discriminate against, harass or victimise a person who is seeking access to or is accessing a service:

  • in the terms of providing the service

  • by terminating the provision of the service

  • by subjecting the service user to any other detriment

What does the Act cover in relation to the provision of recreational or training facilities?

The Act provides protection against discrimination, harassment and victimisation on the grounds of gender reassignment in the provision of recreational or training facilities, such as sports services or clubs. Higher Education Institutions (HEIs) should not discriminate against or victimise a person in:

  • the arrangements it makes for deciding who is provided with the facilities

  • the terms on which it offers to provide the facilities to the person

  • ot accepting the person’s application for provision of the facilities

In addition HEIs should not harass a person who is seeking to access or accessing recreational or training facilities. 

What types of discrimination does the legislation refer to?

Direct Discrimination - Treating people less favourably than others because they are intending to undergo, are undergoing or have undergone gender reassignment

Associative Discrimination - Treating people less favourably than others because they associate with someone who intends to undergo, is undergoing or has undergone gender reassignment

Perceptive Discrimination - Treating people less favourably than others because of perceived gender reassignment.

Indirect Discrimination - Applying a provision, criterion or practice which disadvantages people who intend to undergo, are undergoing or have undergone gender reassignment and which cannot be shown as a proportionate means (i.e. necessary and there is no alternative means available) of achieving a legitimate aim (e.g. a real business need)

Harassment - Unwanted conduct related to a relevant protected characteristic, i.e. gender reassignment, that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

The Act also protects against third party harassment on the grounds of gender reassignment. The University will therefore be liable for harassment of its employees by third parties, such as external contractors, unless they have taken reasonable steps to prevent it from happening. However, this liability will only apply if the University knows that the employee has been harassed on at least two previous occasions.

Victimisation - Treating a person less favourably than others because the person has:

  • brought proceedings under the Act;

  • given evidence or information in connection with proceedings under the Act

  • done any other thing for the purposes of or in connection with this Act

  • de an allegation (whether or not express) that there has been a breach of the Act

Protection is not afforded where the person gives false evidence or information or makes an allegation or has given evidence or information in bad faith.

The General Duty

The new public sector Equality Duty is expected to cover all of the protected characteristics apart from marriage and civil partnership and will require public sector bodies to have due regard to the need to:

  • ·eliminate unlawful discrimination, harassment and victimisation

  • ·advance equality of opportunity between different groups; and

  • ·foster good relations between different groups  

The Equality Duty is a duty on public bodies and others carrying out public functions.It ensures that public bodies consider the needs of all individuals in their day to day work – in shaping policy, in delivering services, and in relation to their own employees.

The new Equality Duty supports good decision-making – it encourages public bodies to understand how different people will be affected by their activities so that policies and services are appropriate and accessible to all and meet different people’s needs. By understanding the effect of their activities on different people, and how inclusive public services can support and open up people’s opportunities, public bodies are better placed to deliver policies and services that are efficient and effective. The Equality Duty therefore helps public bodies to deliver the Government’s overall objectives for public services.

What has changed?

The new Equality Duty replaces the three previous public sector equality duties – for race, disability and gender. The new Equality Duty covers the following protected characteristics:

  • age

  • disability

  • gender reassignment

  • pregnancy and maternity

  • race - this includes ethnic or national origins, colour or nationality

  • religion or belief - this includes lack of belief

  • sex

  • sexual orientation 

It also applies to marriage and civil partnership, but only in respect of the requirement to have due regard to the need to eliminate discrimination.

NEW SPECIFIC DUTIES TO SUPPORT THE GENERAL DUTY

On the 28th June 2011 the Government laid before Parliament for approval the Equality Act 2010 (Specific Duties) Regulations 2011. These regulations will promote the better performance of the Equality Duty by requiring those public authorities to publish:-

1) Equality objectives, at least every four years
2) Information to demonstrate their compliance with the equality duty, at least annually

The new Equality Duty is designed to reduce bureaucracy while ensuring public bodies play their part in making society fairer by tackling discrimination and providing equality of opportunity for all.

Anual Equality Report 2010 Update on progress with Gender Equality

Useful Links

The EHRC is an independent statutory body which champions equality and human rights for all and works to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.

The Equality Challenge Unit provide guidance and publications on trans staff and students

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Last Updated July 2011