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Gender reassignment discrimination

Updating author: Tina McKevitt

Summary

  • Gender reassignment is a "protected characteristic" under the Equality Act 2010. (See Meaning of gender reassignment)
  • The definition of "employee" for the purposes of protection against gender reassignment discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of gender reassignment, person A treats person B less favourably than person A treats or would treat other persons. (See Direct discrimination)
  • Indirect discrimination is where person A applies to person B, to B's disadvantage, a provision, criterion or practice that A applies or would apply equally to persons who do not share the protected characteristic of gender reassignment, but which puts, or would put, persons who do share that protected characteristic at a particular disadvantage when compared to other persons, and which A cannot show to be a proportionate means of achieving a legitimate aim. (See Indirect discrimination)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • A person (A) discriminates against a transsexual person (B) if, in relation to an absence of B's that is because of gender reassignment, A treats B less favourably than A would treat B if his or her absence was for sickness or injury; or for some other reason, and it is not reasonable for B to be treated less favourably. (See Cases of absence from work)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of gender reassignment that has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her, or less favourable treatment because of B's rejection of, or submission to, harassment related to gender reassignment. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to non-transsexual persons. (See Occupational requirements)
  • Transsexual persons may be lawfully excluded from employment or appointment to a personal or public office in certain circumstances where the employment or appointment is for the purposes of an organised religion. Exceptions from unlawful discrimination also exist in relation to various other matters including acts done for the purpose of safeguarding national security and insurance contracts. (See Other exceptions)
  • Terms that constitute, promote or provide for treatment that is prohibited under the Equality Act 2010 are unenforceable. It is not possible to contract out of the Act's provisions except by way of a conciliated settlement or a valid compromise contract. (See Terms)
  • Employers may, in certain circumstances, take measures to enable or encourage people who share a particular protected characteristic to overcome a disadvantage that the employer reasonably thinks is suffered by people with the same protected characteristic. Employers may also, in defined circumstances, appoint or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic. (See Positive action)
  • With effect from 1 October 2010, all occupational pension schemes must be read as including a non-discrimination clause. (See Pensions and other employment benefits)
  • Gender reassignment discrimination by a public authority may contravene the Human Rights Act 1998. (See Gender reassignment and human rights)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

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