This year has seen the tenth anniversary of the Equality Act 2010 and the “protected characteristic” of gender reassignment, and it has had more attention than it has had previously (please see our previous Blog on this topic: http://refreshinglawltd.co.uk/2020/09/gender-fluidity-and-the-law/).
Employers have had to get to grips with different concepts and terminology. I’ll recap before telling you about recent developments.
When a baby is born it is given a biological sex. The gender however is something that the person themselves senses and those who feel uncomfortable with their biological sex matching their gender experience what is called “gender dysphoria’’. There is now a more fairly widely acknowledged understanding that gender identity is a spectrum with male at one end and female at the other and various categories in between.
The term “trans” or “transgender” is an umbrella term covering those whose gender falls outside typical gender norms. For some people who feel their gender identity changes over time the term “gender fluid” is sometimes used to describe this.
A person may undergo a process for changing their identity to match their gender identity which may or may not include medical treatment. This is known as “transitioning”. For a lot of transgender people, they have a gender identity of male or female, albeit not the same one as their biological sex. For those people their gender is binary but for some people however their identity doesn’t fit that binary model and blends male and female or doesn’t fit either. This is known as “non-binary”.
Back in 2004, the Gender Recognition Act enabled individuals to obtain a Gender Recognition Certificate to change their legal gender from that of their biological sex to their gender identity. Once somebody has one of these certificates, they can then obtain a new birth certificate with the required gender. This process has come under criticism because it is seen as costly and excessive – the individual has to provide evidence that they have lived for two years in their required gender and have obtained a medical diagnosis of gender dysphoria.
The Government published its response on 22 September 2020 following consultation around this gender recognition certificate process. It has announced that the fee that has been criticised will be reduced to a nominal amount, although we are not yet told what the new fee will be. It has also described how the process will be moved entirely online and that three new gender clinics will be opened, enabling access to transgender healthcare, making it easier for people to fulfil the medical requirements of the certificate process. Whilst these developments are welcome, this is not as big a change as many hoped. For example, the process still only recognises two genders so is not appropriate for those who are non-binary. It also retains the requirement for medical evidence of gender dysphoria to be provided rather than enabling individuals to self-certify.
The Equality Act is really specific – a person is protected if he or she is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purposes of reassigning the person’s sex by changing physiological or other attributes of sex” (Section 7). The Code from the Equality and Human Rights Commission clarifies that medical intervention isn’t necessary and that gender reassignment is a personal process rather than a medical one (Chapter 2.23). This definition is now outdated as it inadequately protects those identifying as non-binary although the Courts appear willing to bend what is in the Act to fit – please see our previous Blog which covers a case involving Jaguar Land Rover (http://refreshinglawltd.co.uk/2020/09/gender-fluidity-and-the-law/).
My guidance to any employer is to assume that the legislation does protect all transgender employees.
Refreshing Law Ltd
9 November 2020