Discrimination

Protection from discrimination

The journey from outsider status to recognition that trans people were deserving of full protection from discrimination under UK law was long and by no means straightforward. However, since 1996, UK law has accepted that freedom from discrimination is a fundamental principle of equality for trans individuals.

Equality in principle

Equality for trans people was first recognised in principle following a landmark case known as P v S and Cornwall County Council.

Case details

The case arose when a UK trans woman (referred to as P) who worked as a manager in an educational establishment operated by Cornwall County Council lost her job after informing her employers that she was undergoing gender reassignment. An Employment Tribunal had no difficulty agreeing that her dismissal was a direct result of her gender reassignment.

Despite this, the Tribunal felt it could not rule that she was a victim of discrimination, because the relevant law at that time – the Sex Discrimination Act (SDA) – provided very little protection for trans people. In fact, the Tribunal argued, had P been a trans man, he would have been treated in the same way, which meant there were no grounds in the SDA to rule that P had been discriminated against.

At the same time, the UK’ s membership of the EU meant it was signed up to the Equal Treatment Directive, which was a practical attempt to give expression to the Charter of Fundamental Rights. Sensing that the scope of the Directive was wider than that of the SDA, the Tribunal passed the case over to the EU Court of Justice (CJEU) for a “preliminary” ruling, or a definitive statement of the EU law on this issue.

Court Ruling: 30 April 1996

Citing EU Directive 76/207 in respect of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, the court concluded that the dismissal of a an individual for reasons related to their gender reassignment was unlawful.

It held that as the right NOT to be discriminated against on grounds of sex was a fundamental human right, the directive could not apply only where discrimination resulted from that a person is male or female. Logic dictated that the directive must also cover discrimination arising from gender reassignment, which relates, in essence, to the sex of the person concerned: to dismiss a person because they intend to undergo, or has already undergone, gender reassignment is to treat them unfavourably compared to persons of the sex to which they were deemed to belong before their treatment.

Consequences and Qualifications

As result of this ruling, the Tribunal ruled in favour of P, and P received compensation from her employers.

This was the first case law, anywhere in the world, to provide trans people with protection against discrimination in employment or vocational education because of their trans status.

As such it set several precedents with later significant legal consequence. It paved the way for inclusion of trans as a “protected category” in the Equality Act 2010 (EA2010).

At the same time, it also set the stage for restrictions within that Act in two ways: by limiting the scope of the ruling to transsexuals “intending to undergo, undergoing or [who] have undergone gender reassignment”.

And second, by leaving open the question of employment where the natal sex or its continuity was a constitutive element in the employee’s job.

Equality under the Law

This precedent meant that when the UK decided to amend and update its laws on discrimination in 2010, through the Equality Act 2010 (EA2010), for the first time, trans people were provided with legal protection against discrimination.

Prior to EA2010, discrimination was covered by a range of laws that applied in different ways to different groups. The aim of the new law was to simplify and harmonise and therefore to make the law more accessible to ordinary people who had been victims of discrimination.

At its most basic, the law provides individuals with protection from discrimination or, where they are victims of discrimination, it provides a process by which they can challenge the way they have been treated, change the way they will be treated in future and, where appropriate seek compensation for the way in which they have been (mis)treated.

Who is covered?

EA2010 identifies 9 “protected characteristics”: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage/civil partnership and pregnancy/maternity.

When it comes to gender re-assignment, a person is considered to possess the protected characteristic if they are “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”.

Historically, this definition has been considered to fit most closely with the binary transsexual experience: that is, to cover those individuals who are “en route” from one gender to another, and therefore fall within a medicalised definition of transgender. There have, however, been a number of significant developments:

    • The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live as a man but does not undergo any medical procedures would be covered;
    • There is no absolute view on what is included in the phrase “other attributes of sex”. Perhaps change of name would suffice.
    • It is not clear that the Act does not apply to non-binary people. Nowhere does it say that the change has to be from male to female or vice versa. It would therefore be open to a non-binary person to seek protection under this law on the rounds that it can also apply to a change from “male” to “not-male” and “female” to “not-female”.
    • Individuals perceived to be trans, even if they are not, and who are discriminated against on that basis are also covered by this provision. This is especially important in cases where a cis woman is excluded from a facility because she is wrongly identified as trans.
    • Individuals “connected to” a transsexual person, or someone wrongly thought to be transsexual: this would apply to friends, relatives or spouses/partners of trans people

What counts as discrimination?

The Equality Act protects people from discrimination in the workplace and also in wider society: for instance, in the provision of goods and services. It comes into effect where one person treats another less favourably than they would treat others because of their protected characteristic.

The EA2010 provides protection against:

  • Direct discrimination: treating one individual less favourably than another because of a protected characteristic that they have or are perceived to have;
    • Indirect discrimination: putting rules or arrangements in place that apply to everyone, but that result in particular disadvantage to someone with a particular protected characteristic;
    • Harassment: this is defined as unwanted conduct because of a protected characteristic that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person. It might include breach of privacy, by deliberately using inappropriate names and pronouns which should be kept confidential and which could ‘out’ a person;
    • Victimisation: subjecting someone to further disadvantage because they have made a claim or complaint under the Act or if they are providing information/evidence in connection with proceedings under the Act or if they are doing anything else for the purpose of the Act.
In addition, the law includes a specific provision making it discriminatory to treat transsexual people less favourably for being absent from work for reasons directly related to their gender reassignment than they would be treated if they were absent because they were ill or injured.

Exceptions

There are a number of exceptions to the general rule that it is unlawful to discriminate against an individual for being trans. These include:

  • where trans people have historically been under-represented or disadvantaged in respect of a particular role or activity, organisations are permitted to take positive action to encourage participation
    • in competitive sports: trans participation may be restricted in respect of a specific event where organisers can show that gender reassignment confers an unfair advantage on trans individuals. However, they would need to be able to show this was the only way to make the event fair for everyone.
    • where a service provider provides single-sex services (i.e., for men-only or women-only), it is lawful, in very restricted circumstances, to provide a different service or to refuse the service to someone who is undergoing or has undergone gender re-assignment.

In addition, different treatment of trans people (as well as people with other protected characteristics) may be permitted where the situation is covered by a specific exception listed within the Equality Act

Myths

Over the years, a number of myths have grown up, fostered and promoted by the mainstream media about what rights the Equality Act gives to trans people or, contrariwise, how Women’s Rights, won under the Equality Act are now being removed from them. Below we look at some of the more frequently promoted myths and provide, as possible, explanations of how they arose and the actual legal situation:

Myth: Women can be forced to undergo intimate medical treatment by trans women

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