Gender reassignment discrimination takes place when someone is discriminated against, victimised or harassed on the basis of their actual or proposed gender reassignment. The Equality Act 2010 defines such people as anyone proposing, undergoing or having undergone a gender reassignment process by changing their physiological attributes of sex.
The legislation is designed to cover those who have at least proposed to undergo gender reassignment. Those who commence the reassignment process but then stop are also protected. Medical supervision or surgery is not required in order for a person to be protected. Those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation.
Gender reassignment discrimination can take four forms:
- Direct discrimination: Direct gender reassignment discrimination can occur when, because of gender reassignment, a person is treated less favourably than another. A comparator is required; someone (actual, for instance a colleague, or hypothetical) whose circumstances are the same or not materially different, but who is not proposing to undergo, is not undergoing or has not undergone gender reassignment. This is so the person can demonstrate a disadvantage because of gender reassignment. For example, an employee has taken time off work to attend medical appointments in relation to his gender reassignment process and the request is refused despite there being sufficient staff to cover.
- Indirect discrimination: Indirect discrimination can occur when an employer applies a policy or practice which puts transgender people at a disadvantage. This can include selection criteria, policies, procedures and rules. This will be unlawful unless the employer can show that it is objectively justified. The employer will need to show that there is a legitimate aim and that the practice, policy or other procedure is proportionate to achieve that aim.
- Harassment related to gender reassignment: Harassment can occur when unwanted conduct related to gender reassignment has the purpose or effect of violating someone’s dignity or creating an intimidating, humiliating, hostile or offensive environment. A single incident can be enough. For example, a colleague refusing to work with someone because she has informed the colleague that she proposes to start gender reassignment could constitute unlawful harassment.
- Victimisation: Victimisation can occur when someone is subjected to a detriment because they have made a complaint or raised a grievance about discrimination (or they intend to) or because they are assisting someone else who has complained about discrimination for example by giving evidence in proceedings (or they intend to). Examples of victimisation include dismissing, passing over for promotion or not giving a bonus to an employee because that employee has submitted a complaint about gender reassignment discrimination.
Compensation for discrimination is uncapped, meaning the Tribunal can award a substantial amount. The compensation can take into account financial losses and ‘injury to feelings’, intended to compensate the victim for the stress and anxiety suffered as a result of the employer’s unlawful acts of discrimination. The amount of an award may be increased if the employer has acted in a particularly malicious manner.
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