The Equality Act 2010
makes it unlawful in Employment & the provision of Goods, Services, Housing, and Facilities to
Part 2, Ch. 1, S.7
to discriminate or harass a person because they ARE intending to undergo, are undergoing, or have undergone gender reassignment.*** [i]
Types of Discrimination covered by the Equality Act 2010:
There are now 5 different types of Discrimination that a trans person can experience, which are covered by the Act:
Direct Discrimination: when a person, rule or policy discriminates against a person solely because they are transsexual
Indirect Discrimination: when you have a rule or policy that applies to everyone but disadvantages a person with a protected characteristic.
Harassment: behaviour deemed offensive by the recipient. Employees can claim they find something offensive even when it's not directed at them.
Harassment by a third party: employers are potentially liable for the harassment of staff or customers by people they don't directly employ, such as a contractor. (this is called Vicarious Liability)
Victimisation: discrimination against someone because they made or supported a complaint under Equality Act legislation
There are now 2 further types of Discrimination that can cover discrimination becuase
a) a person is thought to be transsexual (and this can include cross dressers), or
b) a person is associated with a transsexual person
Perceptive Discrimination: The Act also makes it unlawful on the same basis to discriminate or harass a person because they are PERCEIVED to be Intending to undergo, are undergoing, or have undergone gender reassignment
Associative discrimination: The Act also makes it unlawful on the same basis to discriminate or harass a person because they are ASSOCIATED with a person who is intending to undergo, are undergoing, or have undergone gender reassignment
There is also protection for anyone who stands up against discrimination towards a transsexual person
For example; a born female person increasingly changes their clothes to become more masculine, adopts a new style of address e.g. Jo instead of Joanna. As s/he enters his/her late teen years s/he is increasingly perceived as a man and by the time s/he is 15, Jo has gradually become Joe. Though some neighbours know Joe's past, Joe is very happy with the situation in which everyone else regard him as a man. For the Equality Act 2010, Joe is a person who has undergone gender reassignment despite never having been assessed, taken hormones, or had any surgery.
Another very relevant section of the Act is:
Part 11, Ch.1, s.149: The Public Sector Equality Duty:
ss(1) A public authority[ii] must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.[iii]
ss (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
Documents to Read
[i] Initially the European Court of Justice used the phrase “intending to undergo, undergoing or having undergone gender reassignment” but s. 82 of the Sex Discrimination Act 1975 (as amended) now states that this refers to those people intending to transition, or who have transitioned to living permanently in the new gender role ‘under medical supervision’. Medical supervision is as little as going to the doctor and saying "I wish to undergo gender reassignment treatment, please could you refer me to be put on the waiting list for a clinical assessment”.
With the Equality Act 2010 under medical Supervision has been removed and is no longer required.
As such it is possible to say that “intending to undergo, undergoing or having undergone gender reassignment” now means in UK law; “intending to live permanently, or is already living permanently in the new gender role.”
[ii] this includes a person who exercises public functions (s.2)
[iii] having regard to Pt 11, Chp.1, s.149, ss.1(c) fostering good relations includes (a) tackling prejudice, and (b) promoting understanding.(Pt.2, Ch.1,s.149, ss5(a) &(b))