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A decision to undertake gender reassignment is made when an individual feels that his or her gender at birth does not match their gender identity. This is called ‘gender dysphoria’ and is a recognised medical condition.

Gender reassignment refers to individuals, whether staff, who either:

• Have undergone, intend to undergo or are currently undergoing gender reassignment (medical and surgical treatment to alter the body).
• Do not intend to undergo medical treatment but wish to live permanently in a different gender from their gender at birth.

‘Transition’ refers to the process and/or the period of time during which gender reassignment occurs (with or without medical intervention).

Not all people who undertake gender reassignment decide to undergo medical or surgical treatment to alter the body. However, some do and this process may take several years. Additionally, there is a process by which a person can obtain a Gender Recognition Certificate , which changes their legal gender.

People who have undertaken gender reassignment are sometimes referred to as Transgender or Trans (see glossary ).

Transgender and sexual orientation

It should be noted that sexual orientation and transgender are not inter-related. It is incorrect to assume that someone who undertakes gender reassignment is lesbian or gay or that his or her sexual orientation will change after gender reassignment. However, historically the campaigns advocating equality for both transgender and lesbian, gay and bisexual communities have often been associated with each other. As a result, the University's staff and student support networks have established diversity networks that include both Sexual Orientation and Transgender groups.

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• The Gender Recognition (Disclosure of Information) (England) Order 2022 – equality impact assessment
• Department of Health & Social Care

The Gender Recognition (Disclosure of Information) (England) Order 2022: equality impact assessment

Published 30 June 2022

Applies to England

© Crown copyright 2022

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected] .

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at https://www.gov.uk/government/publications/the-gender-recognition-disclosure-of-information-england-order-2022-equality-impact-assessment/the-gender-recognition-disclosure-of-information-england-order-2022-equality-impact-assessment

Introduction

The general equality duty that is set out in the Equality Act 2010 requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

Equality impact assessment

What are the intended outcomes of this work.

The Gender Recognition Act enables people to change their legally recognised sex by obtaining a Gender Recognition Certificate ( GRC ), which entitles the holder to be treated for legal purposes in line with their acquired sex. Section 22 of the act creates a criminal offence of disclosing protected information acquired in an official capacity. ‘Protected information’ is information about a person’s sex as recorded on their birth certificate before an application for a GRC was made, or information about their application for a GRC . There are exemptions to the offence, such as where disclosure is for the purpose of preventing or investigating crime, or where the person agrees to the disclosure of the information. Section 22(5) of the act gives the Secretary of State the power to make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under the section.

The Cass review is a review of the Gender Identity Development Service ( GIDS ), which provides care to children and young people with gender dysphoria. The service is currently being reviewed by Dr Hilary Cass in order to evaluate current service provision and understand how the service could be improved. The Gender Recognition (Disclosure of Information) (England) Order 2022 (the order) is a statutory instrument that prescribes that those facilitating, assisting or undertaking the research on behalf of the review are permitted to disclose protected information under the Gender Recognition Act for the purposes of the review without committing a criminal offence. This is in order to maximise the participants in a research project led by the University of York and commissioned by NHS England ( NHSE ) on behalf of the Cass review. The order will create a further exemption to enable the disclosure of protected information in circumstances where it is necessary for those working on the research project to complete their work.

This order will allow analysis of health outcomes for those patients who have been through the Tavistock and Portman NHS Trusts Gender Identity Development Service ( GIDS ). This analysis will provide a clinical evidence base on which the Cass review can make recommendations to NHSE regarding how these services should be provided in the future to improve patient outcomes. Without this statutory instrument ( SI ), the researchers would be unable to complete this work in a rigorous or meaningful way. The ambition is for this research project to provide findings into the effectiveness and long-term outcomes of the treatments provided through children’s gender identity services, which may in turn lead to improved health outcomes for this group of patients.

Who will be affected?

Those affected by this change will primarily consist of those who were patients referred to the GIDS clinic between 2009 and 2020, and have since gone on to apply for or be issued with a GRC . Information is not held on which patients have gone on to apply for a GRC . As such we are not able to set out the exact number of people that will be directly affected by this change. However, we have been able to calculate from published statistics [1] that as of 2021, 754 people born from 1990 onwards have been issued with Gender Recognition Certificates. As such, this represents the maximum number of people who could have been through the GIDS service between 2009 and 2020 and have gone on to be issued with a GRC that we hold data on. This is subsequently our best estimate for the maximum number of people who could be directly affected by this change.

Those directly impacted by this change will see a temporary and limited reduction in the rights they have over data which relates to them and is currently classified as ‘protected information’ under the Gender Recognition Act 2004. However, this reduction will only be in relation to the research that the review team will be carrying out. Protected information will be collected and analysed in controlled environments by a team of researchers, working alongside NHS Digital, NHS gender identity clinics and NHS trusts and foundation trusts. No patient identifiable information will be made public through the course of this research. Any research outputs subsequently published will be fully anonymised.

There will also be substantial indirect benefits to future children and young people with gender dysphoria who go on to use NHSE commissioned children’s gender identity services. This research will provide a stronger clinical evidence base on which these services can be planned going forward. As such it may lead to improved healthcare outcomes for future users of the service.

What evidence have you considered?

The Cass review, which this change will support, has undertaken wide consultation with clinical staff, patients and service users, parents and interest groups such as LGBT+ charities. There is widespread support for the review and the intended research project from these groups.

Demographic evidence between service users and the general population has also been considered. This evidence has been sourced from the 2017 National LGBT survey as well as Office of National Statistics ( ONS ) data and information gathered by the Department of Work and Pensions (DWP).

This legislation will only impact patients who were referred to GIDS from 2009 to 2020 who have gone on to acquire a Gender Recognition Certificate ( GRC ). Obtaining a GRC requires that you have lived in your acquired gender for at least 2 years and intend to do so for the rest of your life. Therefore, the past patients who will be directly affected by this change are highly likely to have the protected characteristic of gender reassignment. However, beyond this there is little data about the other protected characteristics of people with GRCs . As discussed in the previous section we do not know specifically which of the pool of past GIDS patients will have GRCs , however for the purpose of this analysis we will assume they are broadly similar to the wider group of people with the protected characteristic of gender reassignment in general.

Recent evidence from the Cass review’s interim report has also provided evidence on the changing case mix of those children and young people who are referred to the GIDS service. The report notes that an “increase in referrals has been accompanied by a change in the case-mix from predominantly birth-registered males presenting with gender incongruence from an early age to predominantly birth-registered females presenting with later onset of reported gender incongruence in early teen years. In addition, approximately one third of children and young people referred to GIDS have autism or other types of neurodiversity.” [2] Such evidence from the review’s work has also been considered and analysed in this assessment.

Analysis of impacts

The 2017 LGBT survey shows that 32.5% of transgender and non-binary people consider themselves to have a disability [3] , as shown in Table 1 below.

Table 1: Disability self identification within transgender and non-binary population

Source: https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

This shows that people with the protected characteristic of disability will likely be disproportionally highly represented within the group of people directly affected by this measure, as we know that all of those within the affected group will have a diagnosis of gender dysphoria. This is supported by evidence in the Cass review’s interim report which suggests that around one third of children and young people referred to GIDS have autism or other types of neurodiversity. Given a proportion of these children may also be considered to have the protected characteristic of disability, this evidence corroborates that from the 2017 LGBT survey. This means any negative implications of this measure will likely disproportionally impact those with the protected characteristic of disability as they make up a greater proportion of the pool of affected individuals.

The long-term aim of this order is to improve the data quality of the transgender population as they go through medical pathways. This data will be used to inform the Cass review and their final report which will be used to improve clinical outcomes for transgender people. Given we know that those with disabilities are disproportionally highly represented within those with the protected characteristic of gender reassignment, it is subsequently highly likely that the indirect benefits of this change will also disproportionally benefit those with the protected characteristic of disability.

Referral data from the Gender Identity Development Service ( GIDS ) operated by the Tavistock and Portman NHS Foundation Trust shows that in 2018 to 2019 there were higher numbers of females (described as assigned female at birth) being referred to the service than those who were male (described in the table as assigned male at birth). [4] The full breakdown of the number of referrals and their sex can be seen in Table 2 below.

Table 2: Referrals to GIDS by sex assigned at birth

Source: https://tavistockandportman.nhs.uk/about-us/news/stories/referrals-gender-identity-development-service-gids-level-2018-19/

Table 2 shows that there were 1740 females referred to GIDS compared to 624 males referred to GIDS in 2018 to 2019. This follows a trend since 2011 to 2012 in which the number of females was higher than the number of males being referred. As such, those who are female are more likely to be disproportionally affected by any negative implications of the change than those who are male, as they make up a greater proportion of the group of affected individuals.

However, the research project will benefit both those born male and those born female in the future as it will lead to improved services and patient outcomes. If this observed trend continues, then these benefits may also disproportionally accrue to females given they may make up a larger proportion of the pool of future users of the service.

Sexual orientation

The 2017 LGBT survey shows that 85.2% of all transgender and non-binary people have a sexual orientation that is not heterosexual (5.4% of respondents chose not to disclose their sexual orientation). [5] The full breakdown of sexual orientation in displayed in Table 3 below.

Table 3: Sexual orientation breakdown of transgender and non-binary people

The above table reports that the number of transgender and non-binary people who identify as LGB+ is much higher than in the general public, with 93.6% of people identifying as heterosexual or straight in 2022 in the annual population survey conducted by the ONS . [6] As such, it is likely that the protected characteristic of sexual orientation will be disproportionally highly represented in the group of people affected by this measure. As such, those with the protected characteristic of sexual orientation are likely to be disproportionally affected by any negative implications of the change as opposed to heterosexuals, as they make up a greater proportion of the group of affected individuals.

The research will be controlled, and data use will be within set conditions as set out above. The aim of this research project is the long-term improvement of gender identity development services of which the LGB+ community makes up a large percentage of service users as shown in Table 3. As such they will be most benefited by the actions of the research project and the Cass review final recommendations.

Regarding the evidence used in this analysis, it is important to note that not all respondents to the 2017 survey who identify as ‘transgender or non-binary’ may qualify within the protected characteristic of gender reassignment. Similarly, not all sexual orientations listed in the survey outcomes may qualify under the sexual orientation protected characteristic. However, this is the most comprehensive data accessible on the issue, so we believe it remains suitable for the purposes of the analysis and conclusions reached above.

We have no data to suggest that either the group of people who will be directly impacted by, or the group that will indirectly benefit from, this change will be disproportionally comprised of those with this protected characteristic versus the public in general.

This order is to facilitate the research commissioned by NHSE and being carried out by the University of York, which is focused on outcomes from the GIDS service. This service is only available to those up to the age of 18, bar some people who are awaiting discharge to adult services and are over the age of 18.

The research which will be studying the health outcomes of those who have been through the GIDS service will only be considering those patients who passed through the service between 2009 and 2020. As such, all those considered in the research will be between the ages of 18 and 30, as these patients are the only group from which relevant data can be collected. They will likely not directly benefit from the service improvements recommended by the Cass review as these improvements will only apply to those under the age of 18 who comprise the future cohort of patients for this service (if any patients whose data is used in the study remain in the service for a longer duration of time then they may see benefits, however we expect this to be a small number of patients, if any).

This means that young adults will make up the totality of the group of people who may be negatively affected by this change. As such, due to them being overly represented in the pool of affected individuals this age group will therefore be disproportionally impacted by any changes. Conversely children will also disproportionally benefit from changes to the service informed by the research.

Gender reassignment

Those with the protected characteristic of gender reassignment (transgender people) make up the totality of the group that is affected by this order as they are the only service users of the GIDS service. As such, this protected characteristic will be disproportionally represented in the group of people who will be directly affected by this change, as their data will be used as part of the research project. This means that any negative impacts associated with the change will disproportionally accrue to those with this protected characteristic.

The population of those with the protected characteristic of gender reassignment is also the group most likely to benefit from the research project, as its findings will inform the Cass review’s final report, which will in turn inform the future shape and structure of service provision. By providing a service rooted in the best available clinical evidence, this will in turn indirectly benefit those with the protected characteristic of gender reassignment through improving the health outcomes from gender identity services for children.

Religion or belief

Pregnancy and maternity, marriage and civil partnership, families test.

This order is unlikely to have a significant impact on the formation of families.

Engagement and involvement

How have you engaged stakeholders in gathering evidence or testing the evidence available.

Engagement with stakeholders has been led by the Cass review team who have worked with a wide range of stakeholders, including clinical staff, patients and service users, parents, external stakeholder groups and Royal Colleges. The feedback from these groups has been positive and there is an ambition to deliver the Cass review in order to gather evidence for how services for those suffering from gender dysphoria or gender related distress can be better provided to the community who need them.

How have you engaged stakeholders in shaping the policy or programme proposals?

Engagement with stakeholders has been led by the Cass review team who have worked with stakeholder across viewpoints, including clinical staff, patients and service users, parents, external stakeholder groups and Royal Colleges. The feedback from these groups has been positive and there is an ambition to deliver the Cass review in order to gather evidence for gender identity services.

The Department of Health and Social Care (DHSC) has worked with the Government Equalities Office in the creation of the order. The department has also engaged the Information Commissioner’s Office to sight them on our policy proposals.

Summary of analysis

The primary impact of this measure will be a short-term reduction in the protections placed on information considered ‘protected’ under the Gender Recognition Act ( GRA ) 2004. This reduction will be limited to a small number of people necessary for the collection, linkage and analysis of data on behalf of a commissioned research project. Our analysis suggests that those with the protected characteristics of disability, sexual orientation, gender reassignment, females, and those in the age category of 18 to 30 are likely to be overrepresented in the group of people who will be primarily impacted in this way.

It is important to emphasise that any disclosure of protected information would only take place within the context of research being undertaken on behalf of the Cass review between people authorised to view this data under the order. No identifiable information will be made public at any point.

There is a hypothetical risk that data breaches may mean that personal information is exposed to those outside the research programme through the course of its work. However, this risk is considered small and is limited through the significant safeguards in place – for instance the data will be stored on secure servers, pseudonymised wherever possible, encrypted and accessible only by authorised persons.

In our view, the potential impacts of the reduction in protection, in a controlled and minimal way, are outweighed by the significant benefits that will be provided through the research project. The Cass review’s final report will be informed by the data collected by the research team and will recommend improvements in the approach to NHSE for how children’s gender identity services can be best provided, founded in the most up-to-date clinical evidence. This may result in the significant public and private health benefits of improving the outcomes of patients who are referred for assessment and treatment to the children’s gender identity services, by ensuring that they review the highest standard of safe and effective care that meets their needs. As this equality impact assessment has discussed, these benefits will also accrue disproportionally to the groups with the protected characteristics that are overrepresented in the group of patients who were referred to the service between 2009 and 2020, and who will be the subject of the study.

Any negative impacts will also be limited though the fixed nature of the order, which will expire in 5 years’ time, after the completion of the research project. Furthermore, the number of people with access to this data will be limited to those directed to work on the research project by the University of York research team, and NHS Digital and the relevant NHS Trusts and Foundation Trusts that are needed to collect, disclose and link the relevant data.

In summary, although the order may disproportionally impact people with certain protected characteristics in the short term, we believe it is a proportionate means of achieving the legitimate aim of improving the health outcomes of children suffering from gender dysphoria or gender distress, who are referred to gender identity development services.

Monitoring and evaluation

Monitoring will take place through the research team and the Cass review team; communication between these and DHSC will take place regularly to ensure the security of data accessed as a result of this order. This will allow us to monitor for any unforeseen consequences of this order and scrutinise the justification for disclosing sensitive information about a patient in particular cases. The Order will expire after 5 years, in line with the time limited research project.

[1] Tribunal Statistics Quarterly: October to December 2021 - GOV.UK (www.gov.uk)

[2] Independent review of gender identity services for children and young people: Interim report, The Cass Review, February 2022

[3] https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

[4] https://tavistockandportman.nhs.uk/about-us/news/stories/referrals-gender-identity-development-service-gids-level-2018-19/

[5] https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

[6] https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/sexuality/datasets/sexualidentityuk

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Check if you've experienced discrimination

This advice applies to England. See advice for See advice for Northern Ireland , See advice for Scotland , See advice for Wales

If you’ve been treated unfairly or harassed, might have experienced ‘unlawful discrimination’ - this means the discrimination is against the law.

If you want to take action about discrimination, you need to check if what happened is covered by the Equality Act 2010. This is the law that stops employers, businesses and service providers discriminating against you.

There are 3 things you need to check:

You were discriminated against because of something about you like your age or race - these things are called ‘protected characteristics’

The person or organisation that treated you unfairly has a duty not to discriminate against you

What happened meets the definition of a type of discrimination described in the Equality Act

If you work out that you haven’t experienced discrimination under the Equality Act, you might still be able to take action using different laws.

1. Check if it was because of a protected characteristic

It’s unlawful to discriminate against you because of one or more of the 9 protected characteristics.

If you weren’t discriminated against because of a protected characteristic, it’s not discrimination under the Equality Act.

The 9 protected characteristics are:

You must not usually be discriminated against because of:

how old you are 

an age group you’re in - for example young people, millennials or over-60s 

However, sometimes businesses and service providers are allowed to treat you differently because of your age. For example, banks are allowed to set age limits on mortgage lending.

You can check when businesses or services can discriminate against you because of your age .

If you are disabled or have a long-term health condition, you’re protected from discrimination if your impairment meets the Equality Act’s definition of disability.

The Equality Act says you’re disabled if:

you have a physical or mental impairment

the impairment has a substantial and long-term effect on your everyday activities

If you want to make a disability discrimination claim, you’ll need to show your impairment meets the Equality Act’s definition of disability.

Some conditions are automatically treated as a disability under the Equality Act, including cancer and HIV.

Check how to  show you’re disabled under the Equality Act .

Gender reassignment - this means if you're transgender

If you’re transgender, you have the protected characteristic of ‘gender reassignment’.

Gender reassignment means you:

are planning to transition from the sex you were assigned at birth to a different sex

are in the process of transitioning 

have already transitioned

Transitioning could include things like changing your name, pronouns or the way you dress - you don’t need to have had medical treatment.

The Equality Act is from 2010 and it doesn’t reflect the language lots of people use to describe their gender or their transition.

If you’re non-binary

The Equality Act says you only have the protected characteristic of gender reassignment if you’re transitioning from one sex to another. It doesn’t mention non-binary people. 

In 2020, a non-binary person successfully argued they had the protected characteristic of gender reassignment at an employment tribunal. 

The judge at the tribunal said the characteristic should include people transitioning away from their assigned sex - even if they aren’t going to transition to a different sex.

Other courts don’t have to follow this decision. This means if you take legal action about discrimination, the judge might decide you don’t have the protected characteristic of gender reassignment.

If you want to make a complaint or legal claim about discrimination, it’s still worth referencing this case. 

The name of the case is Ms R Taylor v Jaguar Land Rover Ltd. You can read the full employment tribunal decision on GOV.UK . The judge’s decision about non-binary people is in paragraph 178 of the 'Reasons' document.

Marriage and civil partnership

Your employer must not discriminate against you because you’re married or in a civil partnership.

Work is the only place you’re protected from discrimination because of marriage or civil partnership.

If you’ve separated from your partner, you’re still protected until you legally end your marriage or civil partnership.

If you’re not married or in a civil partnership, you don’t have this protected characteristic - for example, if you’re in an unmarried relationship or you’re divorced.

Since Nisha got married, her manager has stopped giving her weekend shifts and won’t let her do overtime. Her manager said other members of staff need the extra shifts more and her husband should be supporting her financially. This is discrimination because of marriage.

Pregnancy and maternity

You’re protected from maternity and pregnancy discrimination while you’re pregnant. The protection starts as soon as your pregnancy begins.

At work, your protection ends either:

when your maternity leave ends - if you’re entitled to it

2 weeks after your baby is born - if you’re not entitled to maternity leave

Your employer also can’t discriminate against you because you’re planning to take maternity leave, or because you took it in the past. Check your rights while you’re on maternity leave .

Outside of work, your protection ends 26 weeks after your baby is born.

After the protected period ends

If you experience discrimination after you stop being protected from pregnancy discrimination, you might be able to claim sex discrimination.

You must not be discriminated against because of your race. 

The Equality Act says race includes your:

nationality

ethnic or national origins

It can also include other things related to race - like how you talk, the clothes you wear or your hairstyle.

Nationality

Your nationality is the country where you have citizenship. You might be a citizen of more than one country - for example, you could have British and Armenian dual citizenship. 

Ethnic and national origins

Ethnic and national origins can include lots of different things like:

the country or region where you were born or grew up

where your parents or other family members came from

the ethnic group you belong to - for example, if you’re Caribbean, Jewish or Irish Traveller

It’s still race discrimination even if the discrimination isn’t about your actual ethnic or national origins. For example, it’s race discrimination if you’re Bangladeshi and someone uses anti-Pakistani slurs against you.

Religion or belief

You must not be discriminated against if you belong to an organised religion - for example, if you’re Muslim, Hindu or Buddhist. This includes smaller religions like Rastafarianism or Paganism.

You also must not be discriminated against for belonging to a specific denomination or sect - for example if you’re Jewish and you’re Orthodox or Liberal.

Your religious beliefs are also protected. For example if you’re Christian, you must not be discriminated against for believing in creationism.

You’re also protected if you don’t have any religion or religious beliefs. For example, you mustn’t be discriminated against for being an atheist. 

Philosophical beliefs

You must not be discriminated against for your philosophical beliefs. It’s up to a court or tribunal to decide what counts as a philosophical belief. 

If you want to show your beliefs are philosophical, you need to show:

you genuinely hold the belief

it’s a moral, ethical, personal or philosophical belief - not an opinion based on facts 

it’s about an important aspect of human life and behaviour

it’s serious and important

it’s worthy of respect in a democratic society and compatible with human dignity

Some things courts have decided are philosophical beliefs include:

belief in climate change

anti-fox hunting beliefs

Some things that courts have decided are not philosophical beliefs include:

believing the Holocaust didn’t happen

being a member of a political party

You must not be discriminated against because of your sex. The Equality Act says your sex means if you’re a man or a woman.

If you’re transgender

Legally, your sex is the sex registered on your birth certificate. 

You can change the sex on your birth certificate if you have a gender recognition certificate. 

Non-binary is not legally recognised as a sex in the UK.

If you’re intersex

Your sex must still be registered as male or female on your birth certificate. Intersex people are not legally recognised in the UK and intersex is not a protected characteristic under the Equality Act. You can get advice and community support for intersex people on the ICON website .

The Equality Act defines your sexuality as your sexual orientation to men, women or both. 

You must not be discriminated against because you’re lesbian, gay, bisexual or straight. 

If you’re not lesbian, gay, bisexual or straight

The Equality Act is from 2010 and it doesn’t reflect the language lots of people use to describe their sexual orientation. 

If your orientation isn’t covered by the Equality Act, you might still be protected. For example if you’re pansexual, you might be able to claim protection as a bisexual.

If you’re asexual, you’re not currently protected from discrimination as an asexual. However, you might still be protected as lesbian, gay, bisexual or straight - for example if you’re asexual and you’re in a relationship.

If someone discriminates against you because they think you have a protected characteristic

If someone discriminates against you because of a protected characteristic, it might still be discrimination even if you don’t have the characteristic. This is called ‘discrimination by perception’. 

For example, it’s discrimination by perception if a pub refused to serve you and your friend because they thought you were a gay couple, even though you’re not. 

It can be discrimination by perception even if the person knows you don’t have the protected characteristic. For example, it’s discrimination by perception if your colleagues are harassing you by making jokes about you being gay - even though they know you’re not.

Discrimination by perception applies to all protected characteristics except:

pregnancy and maternity

marriage and civil partnerships

This means it’s not discrimination if someone treats you unfairly because they mistakenly think you’re pregnant, married or in a civil partnership.

If someone discriminates against you because of someone else’s protected characteristic

It might still be discrimination - for example, if a social worker treats you unfairly because of your wife and child’s ethnicity. This is called ‘discrimination by association’. 

Discrimination by association applies to all protected characteristics except:

This means it’s not discrimination if someone treats you unfairly because you’re associated with someone who is pregnant, married or in a civil partnership.

2. Check if the person or organisation that treated you unfairly is legally responsible for discrimination

The Equality Act protects you from discrimination in the following contexts:

work - for example your employer or employment agency

education - for example your school, college or university

businesses or service provision - like a shop or a train company

health or care provision - like a hospital or care home

housing provision - like a landlord or estate agent

public service provision - for example the police or your local council

clubs and associations - like a sports club

If someone who works for one of these organisations discriminates against you, the organisation is also responsible for the discrimination. This is called ‘vicarious liability’. For example if your colleague discriminates against you, your colleague and your employer are both legally responsible. 

If a customer or service user discriminates against you

It isn’t usually covered by the Equality Act - unless the business or service could have stopped it happening. For example, it might be unlawful discrimination if someone at your local leisure centre regularly harasses you and the staff don’t do anything to stop it - even though you keep complaining.

3. Check if what happened is a type of discrimination under the Equality Act

The Equality Act describes what sorts of behaviour count as different types of discrimination.

The types of discrimination include direct discrimination, indirect discrimination and harassment.

You need to check if what you experienced counts as one or more of these types of discrimination.

Check what type of discrimination you experienced .

If you’ve experienced unlawful discrimination under the Equality Act

There are things you can do if you’ve experienced discrimination under the Equality Act. Discrimination isn’t a criminal offence - this means you can’t ask the police to investigate it. You’ll need to take action yourself.

You should follow these steps:

Complain to the person or organisation - for example by following their formal complaints procedure

Check if you can get help to solve the problem - for example through mediation or an ombudsman

Take the person or organisation to court - if you can’t solve the problem without going to court

Before you take action about discrimination, you need to decide what outcome you want and the best way to achieve it. Check how to take action about discrimination .

There are time limits for taking legal action about discrimination. If you need to go to court, it’s important to act quickly - the time limits can be as little as 3 months from the date you experienced discrimination. Check what the time limits are .

If what you experienced wasn’t discrimination

You can’t take action using the Equality Act. Check if you have a different type of legal complaint or if you can solve the problem another way. 

check if it was a hate crime

check if it was criminal harassment  

If you’re not sure if you’ve experienced discrimination

You can talk to an adviser. They can’t tell you if you’ve definitely experienced unlawful discrimination, but they can help you work out if your situation might be covered by the Equality Act. 

If they think your situation is covered, you can decide if you want to take action.

You can talk to a Citizens Advice adviser .

You can also contact an Equality Advisory Support Service adviser .

If you’re finding things difficult

Discrimination can have a big impact on your mental health. You should talk to your GP if you’re feeling depressed or anxious. 

You can find other ways to get help with your mental health on the Mind website .

If you need to speak to someone 

You can speak to a trained volunteer at organisations like Samaritans or Shout.

Helpline: 116 123 (Monday to Sunday at any time)

Welsh Language Line: 0808 164 0123 (Monday to Sunday 7pm to 11pm)

Calls to Samaritans are free.

You can find other ways to get in touch with Samaritans on their website .

You can also text 'SHOUT' to 85258 to start a conversation with a trained Shout volunteer. Texts are free, anonymous and confidential from anywhere in the UK.

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Discrimination and the Equality Act 2010 - Discrimination at work

Discrimination and the equality act 2010.

• How and when discrimination can happen
• Vicarious liability
• Direct discrimination
• Indirect discrimination
• Victimisation

Discrimination law (Equality Act 2010) protects people against discrimination at work.

It's important to understand what the law says about discrimination, so everyone knows their rights and responsibilities.

What discrimination means

Discrimination means treating someone 'less favourably' than someone else, because of:

• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• religion or belief
• sexual orientation

These are called 'protected characteristics'.

Less favourable treatment can be anything that puts someone with a protected characteristic at a disadvantage, compared to someone who does not have that characteristic.

There's no legal definition of 'putting someone at a disadvantage'. But it might include:

• excluding someone from opportunities or benefits
• making it harder for someone to do their job
• causing someone emotional distress
• causing someone financial loss

It can still be discrimination even if the less favourable treatment was not intended.

When less favourable treatment might not be discrimination

Sometimes, less favourable treatment can be justified and is not unlawful discrimination.

For example, an employer might be able to use:

• positive action – to help a disadvantaged or underrepresented group
• objective justification – when an employer can prove a legitimate need for less favourable treatment
• a disability exception – to specifically recruit a disabled person without the risk of disability discrimination
• occupational requirement – recruiting someone with a certain protected characteristic to do a particular job

Find out more about:

• using protected characteristics to make decisions
• using protected characteristics in recruitment

Who is protected by discrimination law

The Equality Act 2010 protects the following people against discrimination:

• employees and workers
• contractors and self-employed people hired to personally do the work
• job applicants
• former employees – usually around providing references

Who is responsible for discrimination

The main responsibility for discrimination at work lies with employers.

By law, all employers must:

• make sure they do not unfairly discriminate in any aspect of work
• take steps to prevent discrimination
• do all they reasonably can to protect people from discrimination by others
• look after the wellbeing of their employees – this is called a 'duty of care'

Not doing these things could cause harm and distress, and could result in discrimination complaints and employment tribunal claims.

Employers can be held responsible for the actions of employees. This is called 'vicarious liability'.

Anyone who discriminates against someone at work is also responsible for their own actions. Discrimination complaints and employment tribunal claims can be made against individuals as well as employers.

• vicarious liability
• preventing discrimination

Types of discrimination

Discrimination includes:

• direct discrimination – less favourable treatment directly because of a protected characteristic
• indirect discrimination – when everyone's treated the same but people with a protected characteristic are put at a disadvantage
• harassment – unwanted or offensive behaviour related to a protected characteristic
• victimisation – negative treatment as a result of being involved with a discrimination or harassment complaint

Advice on protected characteristics

• age discrimination
• disability discrimination
• pregnancy and maternity discrimination
• race discrimination
• religion or belief discrimination
• sex discrimination

We're updating our advice on gender reassignment, marriage and civil partnership, and sexual orientation.

Our general discrimination advice is relevant for all protected characteristics.

Get more advice and support

If you have any questions about discrimination, you can contact the:

• Acas helpline
• Equality Advisory and Support Service (EASS)

You can find more detailed legal guidance on the Equality Act 2010 in the Employment: Statutory Code of Practice from the Equality and Human Rights Commission .

If you like, you can tell us more about what was useful on this page. We cannot reply – so do not include any personal details, for example your email address or phone number. If you have any questions about your individual circumstances, you can contact the Acas helpline .

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Equality Act: gender fluid & non-binary individuals protected

The Equality Act 2010 makes it unlawful to discriminate against individuals because of their ‘protected characteristics’.

There are nine protected characteristics in total, namely: age, race, sex, sexual orientation, disability, religion or belief, marital status, maternity and pregnancy, and gender reassignment.

The Equality Act 2010 stipulates that a person has the protected characteristic of gender reassignment if the person is: “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”.

It requires that a person should have at least proposed to undergo gender reassignment and whilst no medical intervention is required for an individual to have the protected characteristic, it was accepted that the gender reassignment had to be permanent and longstanding (although not necessarily irrevocable) and therefore did not protect individuals who were gender fluid or non-binary.

However, this may no longer be the case following a landmark ruling at Birmingham Employment Tribunal in Taylor v Jaguar Land Rover. In this case, the tribunal found that a gender fluid engineer who suffered abuse and harassment at work was protected by the Equality Act 2010.

The employee, Rose Taylor, changed the way she presented in 2017. She began to identify as gender fluid and started to wear women’s clothes in work. When she suffered insults and abusive jokes, and struggled with toilet arrangements in the workplace, management failed to support her. She resigned as a result and claimed she suffered harassment and direct discrimination because of gender reassignment and sexual orientation. Jaguar Land Rover argued that being ‘gender fluid or non-binary’ did not fall within the definition of the protected characteristic of ‘gender reassignment’ under the Equality Act.

The judge ruled that it was “clear … that gender is a spectrum” and that it was “beyond any doubt” that being non-binary or gender fluid was covered by the protected characteristic of ‘gender reassignment’ under the Equality Act. Going further, the judge said gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

Jaguar Land Rover could appeal the decision, so it could be reversed, but we await confirmation of this. As the case of Taylor v Jaguar Land Rover was heard at an employment tribunal it does not technically establish a legal precedent, so isn’t binding, but it is bound to be influential in similar claims and the first step towards a future precedent.

This case is the first to extend the scope of protection afforded under the protected characteristic of gender reassignment under the Equality Act, but it is not the first time the protections of the Equality Act have been extended by case law.

In the case of Tirkey v Chandok and another, the Employment Appeal Tribunal confirmed that ‘caste’ could be protected by the protected characteristic of race, thus extending the scope of that protected characteristic. It serves as a reminder that equality legislation is not set in stone, and is constantly developing to accommodate and adapt to our ever changing society, and to protect those vulnerable to discrimination.

A senior associate in our employment law team, Jenny has an extensive track record in advising businesses ranging from SMEs to multinational organisations, on the full range of employment-related matters – including TUPE, contractual issues and defending employee relations.

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Protected Characteristics, Discrimination & The Equality Act

In UK, under anti-discrimination employment laws , it’s illegal to discriminate against someone at work, and various other settings if someone has one of the 9 protected characteristics.

In this guide we’ll explore what protected characteristics are and the different forms of discrimination people might face in relation to them. We’ll offer actionable strategies for dealing with discrimination at work and clarify your rights under the law.

We will cover:

What protected characteristics are

Explain the 9 protected characteristics

Outline what the Equality Act says

Highlight the different types of discrimination

Strategies you can use if you’re being discriminated against

What are protected characteristics?

Protected characteristics are parts of someone’s personality that make up who they are .

There are 9 protected characteristics which are illegal to discriminate against, and companies and institutions that are found to have done so can be fined.

What are the 9 protected characteristics?

It is illegal to discriminate against anyone for the 9 protected characteristics:

Employers might discriminate against a certain age group or range, for instance 18-31 year olds. 

Age discrimination can apply to the young and old. As a younger person, you might be told you don’t have the experience for the role you’ve applied to or a promotion - this can often be used as an excuse to discriminate against hiring younger people.

Older people may not be given work because companies fear they are nearing retirement age, or that they might not be able to keep up with the latest changes in the industry, especially technological.

If you feel you have the experience and aren’t being given the chance to prove it, you might be being discriminated against. 

Pregnancy or maternity leave

Women might be discriminated against if they tell their employer that they are pregnant or planning to take maternity leave . The same can happen to job applicants who disclose this information. However, you are protected from being treated unfairly under the law.

This protected characteristic also covers anyone looking after a very young child. This legislation protects your decision to apply for maternity leave, a new role, promotion and training opportunities whilst pregnant.

Organisations should carry out a risk assessment to ensure that you can carry out your duties while pregnant. Any physical work may adjusted and flexible working arrangements should be offered where possible, as well as for returning mums coming back to work, such as suitable breastfeeding facilities.

Many people with a disability are aware of it and have a supportive employer that makes adjustments for them. However, some people with a disability aren’t aware they have one, choose to identify differently, or are concerned about telling their employer that they have a disability for fear of facing disability discrimination . 

A definition of disability from the Equality Act 2010, is:

“ Any physical or mental impairment that has a substantial and long-term effect on a person's ability to carry out normal day to day activities ”.

As with the other 9 characteristics, disability is protected under this law.

You might have noticed the qualifier ‘long-term’ in that definition, which relates to at least one year. 

Normal day-to-day activities generally includes things such as ‘opening a door’ or ‘running for the bus’. It now includes the difficulty of focusing for long periods of time to include neurodiversity conditions, including ADHD, autism and mood disorders.

Here, positive discrimination can be allowed under the law. This includes making reasonable adjustments in the workplace and for applicants. Employers should remember that positive discrimination only applies to people with disabilities .

Gender reassignment

Gender reassignment is when individuals transition from one gender to another. This process is often associated with transgender individuals, who may identify with a gender different from the one assigned to them at birth. Gender reassignment can involve various aspects, including social, legal, and medical changes.

Reassignment can also include modifying your physical appearance, clothing and other characteristics in order to feel yourself. 

It is a personal choice and not a medical procedure. There is no obligation to have medical treatment in order to be protected under the law as a transgender person. 

Gender reassignment discrimination is illegal and is when someone is treated unfairly because they are transgender.

Married or civil partnership status

Under the law, marriage and civil partnership is a relationship between any two people. Providing this partnership is considered a marriage in legal terms in the UK, it doesn’t matter where the status was originated . 

However currently, despite cohabiting couples being the fastest rising type of relationship status, they are not afforded the same protections under the law from discrimination.

If you feel you are being discriminated against as a cohabiting couple, you may want to seek legal support to understand your rights.

We recently questioned whether the law on cohabitation should be changed .

Race discrimination is when someone is discriminated against for their race, colour, nationality, ethnic or national origin.

People with those shared characteristics are considered part of the same racial group, however someone can belong to more than one racial group.

Positive race discrimination is allowed in some countries, for instance South Africa where racial divisions through apartheid in the past led to inequality. A positive discrimination policy is followed by the South African cricket team , which uses a racial quota for selection of their women’s and men’s international cricket teams.

Religion or belief

Discrimination against someone’s religion or belief is when they are treated unfairly because of the religion they follow or the beliefs they hold.

Belief includes religious and philosophical, as well as a lack of belief such as agnosticism or atheism.

Sex discrimination is when someone is discriminated against because they are male or female. This is not to be confused with gender reassignment, which is a protected characteristic of its own.

Sexual orientation

Whatever your sexual orientation, you are protected from discrimination under the law. This applies across the spectrum of LGBTQ+ and heterosexual individuals.

Where do protected characteristics apply?

The legal protections available to those with one or more of the characteristics applies throughout society, including:

In education

As a consumer

When using public services

When buying or renting property

As a member or guest of a private club or association

Equality Act Overview

We briefly mentioned that protected characteristics are given legal support under the Equality Act 2010 , however we’ve yet to go into what the laws says, so let’s dive into it.

In its creation, the Equality Act joined separate anti-discrimination laws into one overarching act: this means that discrimination, harassment or victimisation are all covered by this single act .

One key element included in the act not explored yet is protection by association. This can come into effect when someone is discriminated against because a person they are close to has a protected characteristic. 

Employers can turn to the ACAS website to understand discrimination at work and what their duties are in different circumstances. 

Positive action for people with protected characteristics

If you want to help someone with a protected characteristic, this is known as positive action .

You can take it when someone :

Is discriminated against and unfairly disadvantaged

Has needs that aren’t addressed by their employer

Is underrepresented in a position, or type of job role 

Positive action is when an employer takes steps to address discrimination based on someone’s protected characteristic .

The best place to start if you really want to help is by talking to your people about their experience and asking them what you can do to change things for the better.

Remember not to get positive action confused with positive discrimination, which we explored earlier. 

Types of discrimination

There are various forms discrimination can take. 

The most common forms of discrimination are:

Victimisation

Being overlooked for promotion, training or employment

Unfair dismissal or constructive dismissal

Lack of necessary adjustments to the workplace

Different rules for different groups

Protected characteristics and discrimination at work

We’ve summarised some examples of discrimination at work, however you may want to read our guide on signs of discrimination at work for a more complete picture and real life scenarios .

In terms of marriage and civil partnership status, this characteristic typically becomes relevant when issues of pension rights and rights to salary claims from partners are requested. Any function at work or private space where only married couples are invited to for instance could be considered discrimination. And, not allowing civil partners to disclose their relationship at work would be an example of exclusion , which would have been the case under the US armies’ infamous ' Don’t Ask, Don’t Tell policy '.

When considering race discrimination at work, it’s important to examine the issue of representation. Are there people from different groups in positions of power? Can you see someone like yourself in a leadership position at the company you work for, whether it’s your boss, or a member of the senior leadership team?

If not, you may struggle to see how you can achieve your ambitions in your career, and your employer could be discriminating on a racial basis.

What can you do if you’re facing discrimination

Before doing anything else, it's important to be aware of your rights and take appropriate actions to seek a resolution. First, if you feel comfortable doing so, you should talk with your employer about what you’ve been facing.

They may not be aware of the impact of their actions, and open communication could lead to resolution.

If they want to help and treat you fairly, they’ll ask for your opinion before taking positive action to eliminate discrimination that you or others from your protected characteristic might face .

If speaking directly to the person involved does not resolve the issue, or if you are uncomfortable doing so, you can escalate the matter by reporting it to your human resources (HR) department. Provide them with documented evidence of the discrimination. You can also get support from Citizens Advice  or your trade union rep.

If informal methods do not resolve the issue, you may need to file a formal grievance with your employer. Follow your employer's grievance procedure, which should be outlined in their policies.

Finally, if internal procedures do not lead to resolution, you can contact the Advisory, Conciliation, and Arbitration Service (ACAS) to explore early conciliation. If resolution is not reached, you may be able to file a claim with an employment tribunal.

Have a look at our guide on what to do when in a workplace dispute for more guidance and support.

Remember, it's crucial to act as quickly as possible, as there are time limits for bringing discrimination claims. Seeking advice from professionals can help you navigate the process and understand the options available to you.

If you can't afford legal support to argue your case, you might be able to get legal aid to help support you with the costs .

Get legal help for discrimination cases

For help and advice on discrimination in the workplace, get a free case assessment from our team and a fixed fee quote for specialist help from our expert solicitors. Contact us today to get started.

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What is discrimination by perception, 5 signs you are the victim of age discrimination, redundancy bumping exposed, 9 signs you might have a constructive dismissal claim, want a solicitor to help with your employment issue.

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Version: 9b9a84b

The protected characteristics explained

Updated on 11 December 2023

Some explanation of the protected characteristics as identified under the Equality Act 2010

In the Equality Act 2010, nine characteristics were identified as 'protected characteristics'. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health.

Where someone is experiencing discrimination because of any of the protected characteristics, they should contact the Equality and Diversity Office for guidance.

This briefing also sets out some examples of what are day to day issues that could amount to discrimination.

The protected characteristic of age applies to all ages. Young people experience difficulty accessing employment because of 'lack of experience' whilst older people worry about finding work because of social perceptions of older people - 'can't keep up with the latest technology'.

In the UK there is no longer a default retirement age and so theoretically people can continue to work for as long as they wish. The main points are: can someone meet the role requirements? This is the same for everyone, irrespective of age.

In relation to younger people, employers should consider whether there is an opportunity to provide 'on the job' vocational or non-vocational training. Without that kind of consideration, young people are unlikely to get any opportunities to get into the workplace.

Under the Equality Act, a disability is defined as, ' any physical or mental impairment that has a substantial and long term effect on a person's ability to carry out normal day to day activities'.

For this definition, 'long term' is generally held to mean a year or more, or a regularly recurring condition, where the recurrences continue beyond a year. The term 'day to day activities' has been held to be things such as running for a bus, opening doors and doing the everyday things that most people take for granted. However things such as the ability to concentrate or focus for a reasonable period of time and also to carry out activities related to the workplace are now considered.

There are conditions which are ring fenced as a 'disability' from the point of diagnosis and these include cancer, HIV and Aids and multiple sclerosis.

This definition means that people with ailments that wouldn't necessarily have been considered as a disability in the past, can fall into that category now. Someone with a heart condition may meet the criteria. In terms of mental health, conditions such as clinical depression, schizophrenia, Bi Polar would generally be regarded as a disability, irrespective of whether or not they are controlled by medication.

Stress related illness and depression can be difficult to determine. Stress in itself is not an illness, however it produces symptoms in the individual that can have a long term impact. Similarly with depression. The definitive answer can only be given by a tribunal, although employers and the university would take guidance from the individual and medical professions to determine the right support mechanism if required.

Conditions such as alcoholism, drug and substance addiction and obesity are not classed as disabilities, however some of the resulting medical conditions that arise from these; diabetes or liver disease may in themselves be a disability.

Under the Equality Act, employers and education providers should support staff and students to overcome barriers presented in the work and study place because of a disability. These are 'reasonable adjustments' and can be adjustments to work and study terms and conditions or by the provision of specialist equipment. In the University,  Disability Services  can provide detailed guidance on these.

Gender reassignment

Gender reassignment is when someone decides to live in the gender they identify as rather than the gender they were assigned at birth. At birth our genitalia are used to determine our gender, however our gender identity is personal to us as individuals and is not about the physical sex we are but about how we feel in ourselves.

To re-assign gender, a person will decide that they wish to live their lives in the gender that they self-identify as. There is no legal requirement for surgical or medical interventions. If someone wishes to undertake surgery to re-assign their genitalia, they must first live their lives in the gender they identify as for at least a year. This is known as the 'real life test'.

Before re-assigning, an individual will have gone through some considerable emotional turmoil and experiences related to their gender identity over many years and undertaking gender re-assignment is not an easy step for anyone.

In workplaces the main concerns for someone transitioning will be the acceptance of their colleagues and the use of their new identity and security of their personal data.

The use of the correct pronoun to describe someone is an important part of their transition and where colleagues refuse to use the correct pronoun, the individual's confidence may be undermined. Persistent use of the wrong pronoun is a form of harassment. Data held for the individual before their re-assignment, must be kept secure to prevent the unlawful sharing of their gender history. The use of facilities such as toilets and changing rooms are also often raised. If someone re-assigns their gender they are lawfully entitled to use the facilities for the gender they identify as.

Marriage and civil partnership

The element of the legislation is about the rights afforded by marriage or civil partnership and in this respect is generally held to be rights for people within a formal legal partnership, whether same sex or opposite sex. This includes same sex marriage. It does not offer protection for those who cohabit but do not have that formal affirmation of their relationship.

This protection is often associated with pension rights and rights to financial recompense in the workplace, however that is not always the case. At work place related social events, invitations that extend to include same sex partners can give a very clear message of a culture that is inclusive.

In the same vein, capturing Civil Partnership on monitoring forms expresses a similar message. However if the culture doesn't support inclusion, those in Civil Partnerships in particular can feel left out.

Pregnancy and maternity

This provides protection for the pregnant women from direct and indirect discrimination and also for anyone caring for a new born or very young child. The legislation protects someone from exercising their rights to maternity leave as well as the rights to apply for appointment, promotion and access to development opportunities whilst pregnant.

Organisations should carry out a risk assessment to ensure that pregnant women are not carrying out tasks that would be a risk either to herself or the unborn child. Certain physical roles or working with certain chemicals or medical equipment may require a short term adjustment to a role until the risk is past. The provision of flexible working arrangements, breast feeding facilities and child care opportunities contribute positively to this protected group.

Keeping in touch days and regular updates to the individual whilst they are on leave can help to support someone to feel included in their absence. Compulsory redundancy whilst someone is on maternity must be fully justified with evidence to show no other alternatives were available.

This protected group covers discrimination because of ethnicity, nationality, national identity, skin colour and caste. Ethnicity is determined by a long and shared history, often religion and language. Certain religious groups, such as Jews and Sikhs are protected by race because of their long shared single history and culture which in itself determines their ethnicity.

In the UK Gypsy Travellers (not New Age Travellers) are a minority ethnic group because of that long and shared history. Skin colour difference is not necessary for a racist incident to have occurred; you may have an incident between two people or groups because of their national identity or nationality and so national political conflicts may result in conflict or tensions between individuals within a work area or community.

In the UK, our social history has played a significant part in how minority ethnic groups are viewed, particularly those of a different skin colour. In addition the ever changing political climate plays a part in creating either an inclusive or divisive culture for those of a different ethnicity, nationality or skin colour

In workplaces the numbers of people from minority groups in strategic posts and organisational committees are few across our society, whilst in some ethnic groups educational attainment remains low, with high levels of exclusion, particularly amongst boys.

In relation to employment, unemployment amongst minority ethnic communities is higher than in white communities and educational attainment does not translate equality into full time employment. Evidence from within Universities is that BME staff are more likely to be in fixed term positions and for longer.

Religion or belief

This characteristic covers all the recognised faith groups and also covers those who do not follow any religion or belief system. Religion and belief is often used as a motivation for extremist behaviour. However it is important to remember that those who do participate in such behaviour do not reflect the majority within that faith group. Historical conflicts between different groups can result in tensions in workplaces or study environments.

Setting meetings and events on particular faith days can result in individuals being excluded and efforts should always be made to avoid days of adherence in order to attract the widest audience. Dietary requirements are also important in relation to some faith groups. As with dietary requirements for health or personal choice reasons, you should try and capture the requirements of the intended audience to attract and accommodate those from different faith groups.

This is the protection of men and women.

Whilst most of the cases that come before employment tribunal are brought by women, it is true that men also face discrimination because of their sex.

For women in employment there are issues regarding pay, with the pay difference for pro rata posts in private sector often 20% less and more. In public sector, theoretically there should be no difference in pay for a pro rata post. However across both private and public sectors, the breakdown of women and men across the different pay grades show a much greater number of women in lower grades and much higher numbers of men in the senior grades. This has come about in part because of social history, but also because of bias in selection processes, often unconscious.

In relation to those men whose ambition it is to follow a career path in what may be seen as traditional female roles, another set of social stereotypes may influence them away from that path. An example is the low numbers of men who work in nursing or HR.

Sexual harassment also falls under this protected characteristics and is 'any unwanted conduct of a sexual nature or other conduct based on sex'. There are two distinct elements to this. The first is 'conduct of a sexual nature'. This is the conduct that can be described as having a sexual motive or perceived as having a sexual motive. Comments about sexual behaviour , unwanted touching that can appear  minor in nature to extreme behaviours that amount to sexual assault or rape, could all be categorised as 'conduct of a sexual nature'.

However the other distinct element of 'conduct based on sex' is also a form of sexual harassment. It is about the abuse of power in a way that demeans the value of one sex or another in the day to day environment. Demeaning comments about women or about men that are intended to 'put them in their place' fall into this. Although that behaviour may be targeted at an individual, it need not be.  In those circumstances the behaviour creates a culture that permits it to be acceptable and creates the power balance in terms of who is valued and who is not.

Sexual orientation

Sexual orientation protects all people from discrimination because of actual or perceived sexual orientation or discrimination by association. There are strong social influences that impact on people because of their sexuality. These have been part of our society for centuries and the consequences for people of any sexual orientation other than heterosexual have been extremely damaging.

Today, although there are great changes in attitudes, there is still a real concern for some people in being open about who they are attracted to for fear of reprisal from family, friends and colleagues and strangers.

At the University there is an LGBT Staff Network and support can also be sought from external LGBT Networks, locally and across Scotland.

Examples of discrimination related to sexual orientation are the use of homophobic language, refusal to provide a service such as accommodation or a marriage service to a same sex couple, and verbal or physical abuse directed at someone who is known to be or perceived to be gay or bisexual.

Joan Robertson

Equality and Diversity Officer

+44 (0)1382 384103

Gender Reassignment – The Protected Characteristics

The facts- terminology.

Biological sex  is assigned at birth, depending on the appearance of the genitals.  Gender identity  is the gender that a person “identifies” with or feels themselves to be.

Cis or   Cisgender-  refers to those individuals that feel that their biological sex matches their gender identity. However, it is not the same for everyone.

Transgender and Trans are terms used to describe people whose gender is not the same as, or does not identify with, the sex that they were assigned at birth. Trans people may refer to themselves using a variety of terms which include but are not limited to:

• People who cross-dress – People who sometimes wear the clothing of another sex, but don’t want to live full-time as a member of that sex.
• Genderfluid, Agender and Genderqueer people – People who feel that they are both, or neither, male and female or whose sex varies.
• Drag queens, drag kings, and other people who don’t appear conventionally masculine or feminine.
• Transgender man-  This is the term used to describe someone who is assigned female at birth but identifies and lives as a man.
• Transgender woman-  This is the term refers to someone who is assigned male at birth but identifies and lives as a woman.

It is important to realise that not all transgender people want to be referred to as ‘trans’ at all. For example, a trans man (someone who has transitioned from female to male) may  simply prefer to be called a man .

Additionally, there are some people whose gender identity may be anywhere on the spectrum between or beyond entirely male and entirely female.

Transitioning  refers to the steps that many transgender people may take in order to live in the gender that they identify with. Each person’s transition is different. Some choose to have medical intervention like surgery or hormone injections. However, not all trans people want to take this step, or are able to take this step. For others, transitioning may involve dressing differently, telling friends and family or changing documents.

Gender dysphoria  refers to the condition in which a person experiences discomfort or distress because there is a mismatch between their biological sex and their gender identity. In other words, it is the desire to live as the gender other than that at birth. Gender dysphoria is a recognised medical condition for which support is available.  It is not a mental illness .

The Facts- Demographics and experiences

Data on transgender and gender identity is limited, with the 2021 Census topic consultation identifying a need for  gender identity data . This lack of data may also be as a result of fear. In the UK Government’s latest  survey , 59% of trans women and 56% of trans men who responded said that they avoided expressing their gender identity as they feared negative reactions from other people. In 2018, the Governments Equalities Office tentatively  estimated  that there are approximately 200,000-500,000 trans people in the UK.

Despite a lack of concrete data on the transgender population size. The discomfort felt by transgender people is undeniable. A  report  by Stonewall in 2017 found that a two in five (40%) of the 733 trans respondents adjust the way that they dress because they fear discrimination or harassment. [6]

Stonewall’s ‘ Trans Report ’ also found that trans people are subjected to hate crime as well as day-to-day discrimination. The report found that between 2016 and 2017, 41% of trans people surveyed have experienced a hate crime or incident because of their gender identity.

Further, the report details discrimination felt by trans people in public spaces; when buying a new home; in higher education; and in work.

Know Your Rights

Trans-gender people are protected from discrimination and harassment under the Equality Act 2010. Under the legal definition, a trans-gender person has the protected characteristic of gender reassignment if they are undergoing, have undergone, have partially undergone or are proposing to undergo gender reassignment.

Gender reassignment is a process to change your sex by changing physiological and/or other attributes of sex including, for example, your first name, title, clothing, etc. It does not necessarily involve medical or surgical treatment, although it can do.

Only trans-gender people are explicitly protected under equality legislation but there are different types of discrimination which may involve someone who is not trans to be protected under the Equality Act 2010.

Direct Discrimination:

This occurs when  a person, rule or policy discriminates against a person solely because of their own gender reassignment.  Direct discrimination can also apply in other circumstances:

• Direct Discrimination by Association  occurs when someone is treated less favourably because of the gender reassignment of someone they are associated with e.g. a family member or a friend.
• Direct Discrimination by Perception  occurs when someone is treated less favourably because they are thought to be considering, thought to be undergoing or thought to have undergone gender reassignment, regardless of whether this correction is correct or not. This is the type of discrimination where non-binary (those who identify as neither a man nor a woman) may be protected.

Indirect Discrimination

When you have a rule or policy that applies to everyone but particularly disadvantages a person has the protected characteristic of gender reassignment. However, indirect gender reassignment discrimination can be permitted if the organisation or employer can show that there is a good reason for the discrimination.

This is  behaviour deemed to violate the individual’s dignity, or it creates an intimidating, hostile, degrading, humiliating or offensive by the recipient that is relevant to gender reassignment. People can find something offensive even when it’s not directed at them.

Under the Act, harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, then you cannot claim against the organisation. However, claims can be made against the harasser.

Victimisation

Discrimination against someone because they have made, or supported someone who has made a complaint, under Equality Act legislation.

Circumstances when being treated differently due to gender reassignment is lawful

A difference in treatment may be lawful in some circumstances. These are listed below:

• An organisation may take positive action to address the under-representation of transsexuals in a particular role or activity.
• The circumstances may fall under the exceptions within the Equality Act.
• In competitive sports, a sports organisation may restrict participation because of gender reassignment if they think that this is the only way to make the event fair for everyone.
• A service provides single-sex services in very restricted circumstances.

Information and Support

• A:gender (Home office trans network)
• Depend (family, friend and partner support)
• Trans Youth Wales
• UNIQUE Transgender Network
• Trans Unite
• Acas Gender Reassignment Discrimination: Key Points for the Workplace

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UK Reform of Gender Recognition and the Commission for Equality and Human Rights

by Julius Komorowski | Nov 20, 2018

About Julius Komorowski

Julius Komorowski, “UK Reform of Gender Recognition and the Commission for Equality and Human Rights” (OxHRH Blog, 20 November 2018), <https://ohrh.law.ox.ac.uk/uk-reform-of-gender-recognition-and-the-commission-for-equality-and-human-rights>[date of access]

The UK Government’s consultation on reforming the   Gender Recognition Act 2004 proposes making it easier for trans people to change legal sex or gender. Commentary supporting reform has relied upon the Commission for Equality and Human Rights’ longstanding guidance on the Equality Act 2010 . But the Commission’s consultation response is inconsistent with that advice. Their response also overlooks the practical implications of reform for single-sex services.

The Equality Act contains prohibitions on sex discrimination, and also discrimination against those possessing the protected characteristic of gender re-assignment, described in the Act as “ transsexuals ”. The Act permits, in limited circumstances, both the provision of single-sex services and the exclusion of transsexuals from those services.

A person can change their sex as a matter of law by obtaining a gender recognition certificate (GRC) under the Gender Recognition Act. But a person can be a transsexual under the Equality Act without having a GRC. The Act defines a transsexual person as a person “with the protected characteristic of gender reassignment if the person is 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”. Protection under the Act is not based on having obtained a GRC.

The Commission’s guidance (last updated in October 2018) states (at p. 17):

“Generally, a business which is providing … single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment” (emphasis added).

This is in line with the Commission’s statutory Code of Practice (published in 2011) (para. 13.57 ).

This advice has been relied upon in commentary supporting reforms to make it easier to obtain a GRC. Finlayson, et al , arguing that reform will be of limited effect, state that the Equality Act: “already allows trans people to use the facilities and services that best align with their gender identity in almost all cases”, citing the Code of Practice.

However, the implications of the Commission’s consultation response contradict their guidance. Their response states :

“15. Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex . Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment .” (emphasis added)

If the Commission’s consultation response is correct, they cannot be correct in their guidance.

A person with the protected characteristic of gender reassignment (a transsexual) is protected against less favourable treatment because of that protected characteristic. That person’s sex according to law is unaffected. Consider a transsexual without a GRC whose birth certificate records that person as being male. Suppose that person is denied access to a single-sex service (such as a women’s refuge from domestic violence) on the basis that the person is not female. That person cannot be compared to a non-transsexual woman, because the person being denied a service is not legally a woman. That person is treated no worse than a non-transsexual man. Thus, the less favourable treatment is on account of sex, not gender reassignment . The single-sex service provider has no obligation to serve that person. Indeed, to do so would be inconsistent with the single-sex nature of their service.

The Commission recommend that reform be accompanied by “clear practical guidance” (para. 87). But their response shows that the Commission’s guidance is already wanting.

The Commission’s response later asserts that the Equality Act provisions on single-sex services “will continue to operate as they do now following reform of the GRA” (para. 81). But this overlooks the significance of possessing a GRC for inclusion in or exclusion from single-sex services. No justification is required to exclude trans persons not holding a GRC from single-sex services beyond them not being (as a matter of law) the sex for whom the service is dedicated. But separate justification is required for excluding GRC holders, because their GRC alters their legal sex. Thus, relaxing the conditions for obtaining a GRC necessarily affects who can access single-sex services. The more accessible GRC certificate are, the more access transsexual people will have to single-sex services. This is an important point which ought to be understood in the debate about reform.

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Related content.

Gym Use and Changing Rooms: the illegality and chilling effect of (trans)gender segregation

Gender Recognition, Self-Determination and Segregated Space

Legislating for Trans Equality: Recent Developments in the United Kingdom and Ireland

As far as I can make out the argument of the author is as follows:

* the response of the EHRC to the consultation does not match its statutory guidance; * therefore the EHRC statutory guidance is unreliable; and * therefore the correct comparator for a trans woman bringing a claim of “gender reassignment” discrimination is a cisgender man.

All three assertions are incorrect.

The author cites this piece of the consultation response

“15. Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment”

By sex discrimination provisions, the EHRC mean bringing claims based on the protected characteristic of sex. And AFAIK this guidance is accurate. A trans woman without a GRC who is paid less than a colleague who is a cisgendered man doing similar work is unlikely to succeed in a sex discrimination case. Her legal sex is male so she is not being treated any worse because of her sex. In these circumstances she might be able to rely on discrimination by perception – if it was thought that her legal sex was female and hence the discrimination was on the grounds of sex.

The last line then says that individuals with or without a GRC are protected from gender reassignment discrimination. This is also correct. There is no in consistency between the EHRC guidelines or consultation response

The author asserts (without reference) that the correct comparator for a trans women without a GRC claiming gender reassignment discrimination in the case of a single sex space is always a cisgender male. This is incorrect.

A careful examination of the Court of Appeal case of Croft v Royal Mail [2003] EWCA Civ 1045 and subsequent legislative changes leads to the conclusion that the EHRC statutory guidance is fully consistent with prior law. Further, courts are required by statute to have regard to the EHRC statutory guidance. And although the statutory guidance is not the law, I cannot see circumstances where a court would reject the guidance.

The author appears to be relying on the 2013 High Court case of Green [2013]EWHC 3491 (Admin) for his assertion. However, Green is a “difficult” case. A narrow view of Green leads to it being confined to its facts, or to prisons, or to trans women in single sex male spaces. Alternatively, a wider view of Green leads to the inescapable conclusion that it is per incuriam on the grounds of failing to properly apply a binding CA case (Croft) and ignoring a relevant statute.

In summary the author is on a sticky wicket as he seeks to argue that statutory guidance is incorrect and the only support for his view is a single High Court case. Things become even more perilous when a close look at Green reveals manifest errors of law (e.g. para. 8) and the judge’s admission that the Equality Act point was not argued at length (e.g. para. 64).

One final point. Claire McCann, a barrister who practices in this area of law and who has represented transgender clients including at the Supreme Court, prepared a legal opinion for the Women and Equalities Committee report. She considered on what (if any) grounds it would be legal to exclude a trans women with the protected characteristic of “gender reassignment” from single sex services. Her answer was this could only occur if the single sex exceptions were satisfied.

[BTW If I have time, I will write up case legislative history and also fully highlight the flaws with the reasoning in Green on my personal blog]

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Gender-fluid engineer wins landmark UK discrimination case

Judge decides that there is protection for non-binary people under the Equality Act

A gender-fluid/non-binary engineer who suffered abuse and harassment at Jaguar Land Rover has won a landmark discrimination case.

Rose Taylor, who worked at the Midlands car manufacturer and changed the way she presented in 2017, has won what is believed to be the first claim of its kind.

Until now, there was uncertainty over whether Equality Act protections covered those who who fell into the category of gender fluid/non-binary.

Although the case, heard at an employment tribunal, does not technically establish a legal precedent, it is bound to be influential in similar claims.

The ruling was delivered by Employment Judge Hughes at a Birmingham tribunal earlier this week. A further hearing next month will establish what damages Taylor should be awarded.

After Taylor, who had been an engineer with Jaguar Land Rover for more than 20 years, began wearing – usually – women’s clothes, she suffered insults and abusive jokes. She said she did not receive support from the management and won her constructive dismissal claim.

Part of the argument was whether being gender fluid/non-binary was a protected characteristic under section 7 of the 2010 Equality Act. The protected characteristics covered in the act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The judge ruled that it was “clear … that gender is a spectrum” and that it was “beyond any doubt” Taylor was protected. The judge said gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

Taylor, who prefers to use the female pronoun, is now working as an engineer with another firm.

Her barrister, Robin Moira White, of Old Square Chambers, who has transitioned from male to female, said: “This is an important judgment, albeit at first instance, recognising for the first time the rights of a small number of individuals with complex gender identities.

“Once again the courts have shown themselves willing to stand up for the rights of individuals in a manner which demands respect and admiration. I pay tribute to my brave client … I see no reason why this ruling should not extend to other complex gender identities such as a-gender and genderqueer.”

White added: “I’m aware of other cases where non-binary/gender fluid individuals have suffered disadvantage in the workplace.”

Dave Williams, executive director of human resources at Jaguar Land Rover, told Forbes magazine: “On behalf of Jaguar Land Rover, I would like to apologise to Ms Taylor for the experiences she had during her employment with us. We continue to strive to improve in this area and we respect the outcome of the case.

“Jaguar Land Rover does not tolerate discrimination of any kind. We are committed to creating an environment where everyone can flourish, where our employees feel listened to, understood, supported and valued equally.”

• Discrimination at work
• Work & careers
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7 Gender reassignment E+W+S

(1) A person has the protected characteristic of gender reassignment if the person is 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.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3) In relation to the protected characteristic of gender reassignment—

(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.

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What a re Protected Characteristics?

Why are Protected Characteristics important for inclusion and diversity? 

What are examples of Protected Characteristics in the workplace? 

Other common questions about Protected Characteristics  

Understanding Protected Characteristics: The Key to Inclusion and Diversity

What are protected characteristics .

The Employment Equality Acts and Equal Status Acts of Ireland and the EU are laws designed to provide protection from discrimination.  

Similarly, the Equality Act 2010 is a law in the United Kingdom that prohibits discrimination against individuals based on any of the above-mentioned protected characteristics. The act replaced previous anti-discrimination laws and provides a legal framework to protect individuals from unfair treatment and promote equality and diversity.   

Both acts include protected characteristics.  

The protected characteristics in the UK are:  

1. Age 

2. Disability  

3. Gender reassignment 

4. Marriage and civil partnership 

5. Pregnancy and maternity 

7. Religion or belief

9. Sexual orientation

The Protected characteristics in Ireland are:

2. Civil Status 

3. Family Status

4. Sexual Orientation 

5. Disability  

6. Age 

8. Religion 

9. Membership of the Traveller community 

While there are similarities in the equality laws between the UK and Ireland, there are also some differences.     In the UK, the Equality Act 2010 prohibits discrimination based on the following protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The Act applies to employment, education, and the provision of goods and services.     In Ireland, equality law is mainly governed by the Employment Equality Acts 1998-2015 and the Equal Status Acts 2000-2018. These Acts also prohibit discrimination on various grounds, including gender, marital status, family status, sexual orientation, age, race, religion, and disability. However, the categorization and scope of protected characteristics differ slightly between the UK and Ireland.     Another difference in the equality laws of the two countries is that in Ireland, there is a separate Equality Tribunal that investigates and adjudicates on complaints of discrimination, while in the UK, the Equality and Human Rights Commission has powers to enforce equality legislation, undertake research, and provide advice and guidance.     While the specific legal framework and enforcement agencies differ, the underlying goal of both the UK and Ireland's equality legislation is to promote and protect equal opportunities and eliminate discrimination, ensuring fair and equal treatment for all.  

Why are Protected Characteristics important for inclusion and diversity?  

Protected characteristics are important for inclusion and diversity because they are the specific characteristics that are protected by anti-discrimination legislation. These characteristics include age, disability , gender reassignment, marriage and civil partnership, pregnancy and maternity, race , religion or belief, sex, sexual orientation, and membership of the Traveller community depending on geography. These characteristics are important because they identify groups of people who have historically faced discrimination, disadvantage, and inequality.  

What are examples of protected characteristics in the workplace?  

Examples of protected characteristics in the workplace include:     1. Age:

Employers cannot discriminate against employees or job applicants based on their age.  

2. Disability:

Employers must provide reasonable accommodations for employees with disabilities to ensure they can carry out their job duties.

Employers cannot discriminate against employees or job applicants based on their race, ethnicity, or national origin.

4.   Sex:

Employers cannot discriminate against employees or job applicants based on their gender or sexual orientation.

5.   Religion or belief:

Employers cannot discriminate against employees or job applicants based on their religion or beliefs.

6.  Gender reassignment:

Employers must treat employees who are undergoing gender reassignment equally and with respect.

7. Pregnancy and maternity:

Employers cannot discriminate against employees or job applicants based on their pregnancy or maternity leave.

By recognizing and protecting these characteristics, employers can foster a workplace culture that is more inclusive and supportive of diversity. This can lead to improved employee engagement and job satisfaction, better business decisions, and a stronger organizational reputation.  

Other Common Questions about Protected Characteristics 

How to reduce the risk of discrimination at work .

Reducing discrimination at work requires a comprehensive approach that focuses on creating a culture of inclusion and diversity. Below are some steps that employers can take to reduce discrimination in the workplace:     1. Develop and enforce anti-discrimination policies:

Employers should have formal anti-discrimination policies in place that outline the company's stance on diversity and inclusion. These policies should be clearly communicated to all employees and strictly enforced by management.     2. Educate employees:

Employers should provide training and education to their employees on topics such as unconscious bias, diversity, and inclusion. This can help to raise awareness of discrimination and bias and encourage employees to be more mindful of their behaviour.     3. Foster a culture of inclusion:

Employers can foster a culture of inclusion by promoting unity and respect across their workforce. For example, employers can hold diversity events or celebrations, create employee resource groups, or promote diverse leadership.     4. Evaluate recruitment and promotion methods:

Employers should review their recruitment and promotion methods to ensure that they are transparent and based on merit. This can help to ensure that a diverse pool of candidates has an equal opportunity to succeed.     5. Provide support:

Employers should provide support to employees who experience discrimination or who require accommodations. This can include providing trained support staff or counsellors and offering access to reasonable accommodations.     6. Monitor workplace demographics:

Employers should regularly review and monitor the demographic makeup of their workforce. This can help to identify any areas of under-representation or issues related to workplace diversity.     Reducing discrimination at work requires a sustained effort and commitment from both employers and employees. By taking proactive steps to promote diversity and eliminate discrimination, employers can create a more inclusive and supportive work environment for all employees.  

How many protected characteristics are there?  

There are nine protected characteristics.  

Is positive discrimination legal in employment? 

Positive discrimination, also known as affirmative action, is generally not legal in employment in the UK and Ireland. The Equality Act 2010 prohibits discrimination on the basis of protected characteristics such as age, gender, disability, race, or sexual orientation. This means that employers cannot preferentially hire or promote someone based solely on their protected characteristics, even if the goal is to create a more diverse workforce or address historical imbalances.  

Is discrimination in the workplace ever lawful? 

Discrimination in the workplace is rarely lawful. There are some exceptions, such as if there is a genuine occupational requirement that cannot be met by someone with a particular protected characteristic. For example, if a role requires a particular level of physical strength, it may be lawful to require a certain level of fitness, which may disproportionately exclude some people with disabilities. However, this exception is very narrowly defined, and employers must be able to demonstrate that the requirement is essential to the job in question.     In addition, positive action is lawful in some circumstances. This is where an employer can take action to address under-representation of certain protected groups, but this must be proportionate and aimed at addressing the under-representation, rather than excluding or disadvantaging any particular group of people.  

Conclusion  

  It should be noted that this article does not constitute legal advice, and employers should work with their legal teams to ensure compliance. It should also be noted that laws and regulations are subject to change – best practices can include an annual refresher course, review, or advisory call.  

Ultimately, these laws are in place to prevent and protect people from discrimination and marginalization; not to create division or challenges. Approaching them with these intentions can go a long way in avoiding discord.