Introduction
While the subject of transgender identity continues to arouse plentiful debate in policy circles, the existing legal architecture governing protection from discrimination remains obscure for many experts and lay-people alike.
This article explores the protected characteristic of gender reassignment under section 7 of the Equality Act. I seek to answer three questions. First, who comes within the scope of section 7? Second, what is the relationship between the protected characteristics (PC) of gender reassignment and sex? Third, who is the correct comparator for a person bringing a claim of discrimination on grounds of gender reassignment?
The scope of s.7 Equality Act
The protected characteristic of gender reassignment is defined in the following way:
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:
1) A reference to a person who has a particular protected characteristic is a reference to a transexual person.
2) A reference to persons who share a protected characteristic is a reference to transexual persons.
As the Explanatory Notes to the Equality Act make clear, if an individual decides to spend the rest of their life as a gender different from their natal sex and then starts to live as that gender, then that individual has the PC of gender reassignment irrespective of whether they have received any medical treatment. The concept of “a process (or part of a process) for the purpose of reassigning the person’s sex” can mean many things and this is intentionally so.
In Taylor v Jaguar Land Rover Ltd [2020], the ET held that s.7 EqA encompassed a “non-binary” or “gender-fluid” identity. The claimant began to identify as non-binary and wore women’s clothing to work on some days as part of a process of transition, after having worked at Jaguar Land Rover for over 20 years as an engineer. The Tribunal concluded that s.7 EqA envisaged a spectrum of gender between male and female:
“We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex.” [178] (emphasis added)
On this analysis, an individual has the PC of gender reassignment if they move from one point to another on the male-female spectrum. The final destination does not have to be male or female. Therefore, the key question is: when does an individual acquire the protected characteristic of gender reassignment? What steps do they have to take?
As was made clear during the public consultation on the Equality Bill, the intermittent adoption of the appearance of a gender different from one’s natal sex does not automatically gain the protection of s.7 EqA. The individual needs to have made a concerted decision to live his or her life in that way.
The ratio in Taylor was recently affirmed by the High Court in AA & others -v- NHS Commissioning Board [2023] EWHC 43 (Admin):
1) The process will not necessarily be a medical one. It may involve changing non-physiological aspects of sex, such as one’s name and/or how one dresses, or wears one’s hair, or speaks, or acts.
2) Second, the reference to “a process (or any part of a process)” reflects the fact that trans people will give effect to their gender identity in a variety of ways. Some will embark on a process which they intend will include hormone treatment and surgery, or other forms of medical intervention – as well as changing some of the non-physiological aspects of gender. But some may decide, on reflection, that they only wish to make some of these changes. The words in parenthesis make clear that this does not matter: they are still protected by the 2010 Act.
3) Third, the reference to those who are “proposing to undergo”, as well as those who are undergoing or have undergone, this process (or part of it) shows that Parliament intended the protection to start before the process (or any part of it) has started. All that is required is that they propose to undergo at least a part of such a process. The word “proposing” connotes a conscious decision, which can properly be described as settled, to adopt some aspect of the identity of a gender different from that assigned at birth. A passing whim will not do, but nor is an intention required that the change should be permanent. (There is a contrast here with the requirements for a gender recognition certificate in s. 2(1) of the Gender Recognition Act 2004, which include that the applicant has or has had gender dysphoria, has lived in the acquired gender for 2 years and “intends to continue to live in the acquired gender until death”.)
Whilst the scope of s.7 EqA is highly capacious and flexible, it is not unlimited. For instance, in the case of Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ, the EAT held at para [118c]:
This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
This is a surprising caveat. The mainstream reading of Taylor is that the PC of gender reassignment has near automatic entry. The recognition of gender fluidity supports this purposive interpretation. Nevertheless, the judgment of the EAT in Forstater indicates there are some – albeit ambiguous – qualifying criteria. If I may suggest an explanation, it is that merely self-identifying as transgender is insufficient to acquire the protection of s.7 EqA. As held by the High Court in AA, an individual needs to have made a “conscious decision” to commit to a process of change and they need to have communicated that decision to their employer in some way. The High Court in AA also confirmed there is no minimum age threshold for acquiring the protection of s.7 EqA. Thus, children are equally protected as adults.
The interface between gender reassignment and sex
The most contentious topic is the proper relationship between the protected characteristics of sex and gender reassignment. The current case-law makes one point clear. An individual’s legal sex cannot be changed without having first acquired a Gender Recognition Certificate. In the case of Green v Secretary of State [2013] EWHC 3491 (Admin), which concerned a trans-woman being placed in a male prison, the High Court held that a person who identifies as the opposite sex remains legally their biological sex unless they have obtained a Gender Recognition Certificate. Whilst the government policy pertaining to prisons has changed since 2013 and remains subject to further change, the test for direct discrimination on grounds of sex and/or gender reassignment in the employment setting remains the same.
More recently, in the case of For Women Scotland [2022] CSOH 90, the Court of Session examined the meaning of “sex” within the Equality Act 2010 and affirmed that sex and gender reassignment were separate protected characteristics which should not be conflated. Thus, a person who changes their legal sex by acquiring a GRC can remain protected by s.7 EqA. It follows there is no contradiction in a person obtaining simultaneous protection in respect of both sex and gender reassignment. Indeed, the prevalence of the distinction has practical relevance to disputes over equal pay, pregnancy and maternity discrimination. One can readily envisage the scenario where a trans employee, without a GRC, faces discrimination on grounds of their unchanged legal sex. Of course, this Scottish authority is not formally binding upon the English courts, but it remains persuasive authority.
As with any claim for direct discrimination, the relevant comparator must be a person in materially similar circumstances, except for the protected characteristic in question. At present, there are two competing approaches to the identification of the correct comparator in cases concerning s.7 EqA.
The first approach, advocated by Dr Michael Foran, for example, applies the ratio in Green to argue if a trans-woman does not have a GRC, and is therefore legally male, the correct comparator is a male without the PC of gender reassignment. Dr Foran further observes that if the judgment in For Women Scotland is correct, it follows that if a trans-woman has a GRC and is therefore legally female, their comparator would be a female without the PC of gender reassignment. It would be fair to say this approach is favoured by those who advocate a firm dichotomy between the PCs of gender reassignment and sex. In foregrounding this distinction, the judgment of the Court of Session may be cited as authority for this orthodox approach to the identification of comparators.
In AB v Royal Borough of Kingston Upon Thames [2023], the Claimant succeeded in her claim for direct discrimination on the basis that following her gender transition (having given 8 months’ notice to her employer), she was given no support by her employer, which had not implemented appropriate policies. The unfavourable treatment included being “deadnamed” on the employer’s computer systems i.e. she continued to be called by the male name and pronouns she had changed upon transition. The judgment does not refer to the Claimant having obtained a GRC and there is no mention of any change in her legal sex. Her comparator was herself before transition. The Tribunal noted that no other comparators were available. Whilst the Tribunal did not explore the comparator question in any depth, it may be inferred the comparator was a legal male without the protected characteristic of gender reassignment.
The second approach contends the legal sex of the relevant comparator need not match the sex of the claimant alleging direct discrimination. Such an approach was arguably taken by the Employment Tribunal in V v Sheffield Teaching Hospitals NHS Foundation Trust and others [2023]. In that case, the Tribunal decided the manager of an NHS Trust discriminated against the trans Claimant in asking her questions about whether she had removed her underwear in a communal changing room at work. The Tribunal held such questions would not likely have been asked of a cis-gender woman. It is worth noting, however, that the Tribunal in this case did not explore the comparator issue in any detail. That might be indicative of a legal error, or it might reflect the emergence of a more contextual method in identifying comparators.
Conclusion
- Whilst s.7 EqA has a broad ambit, its scope is not unlimited. To avail themselves of protection, individuals are required to make a “conscious decision” to commit to a process of change and to communicate that decision to their employer;
- Sex and gender reassignment are separate PCs and an individual may be protected on both grounds simultaneously;
- The debate surrounding the identification of the correct comparator remains unsettled and there is a principled basis for taking different approaches in discrimination claims. This is an area in which Claimants and Respondents alike should pay special attention in future.
