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Protection from discrimination for transgender individuals in UK law
11/06/2021
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Robin Moira White
Robin Moira White is a barrister specialising in employment and discrimination law at Old Square Chambers

There has recently been criticism of Stonewall, the leading UK Charity promoting LGBT rights in the UK, for using “gender identity” in training and other materials. It is true that section 7 of the Equality Act 2010 which defines discrimination rights in the UK has not been amended and still refers to “gender reassignment”, but what does that mean?

Section 7(1) provides: 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.”

Since the Act was passed into law, a belief had grown up that “reassignment” meant only a binary transition from male to female or vice versa. In 2016 an examination of the state of the law by the Women and Equalities Select Committee recommended a change of the protected characteristic from “gender reassignment” to “gender identity”.

Those supporting transgender rights supported this, those opposing them, or fearing greater complexity for business argued against the change. However, none took the simple step of reading Hansard, the record of the UK parliament’s proceedings, until the gender reassignment discrimination case of Taylor v Jaguar Land Rover in 2020.

Ms Taylor, who at the time of the events in her case identified as gender fluid or non-binary (i.e. somewhere between male and female) faced an employer defending the claim on the basis that her circumstances did not come within the protection of section 7.

However, a reading of the relevant parts of Hansard revealed the then Attorney-General, Vera Baird, stating clearly to MP’s that gender reassignment included “a move away from natal sex into a state of one’s choice” and so gender-fluid and non-binary individuals such as Ms Taylor were included.

This was only a first instance decision but the case was not appealed and in approaching a year of legal thinking since, so substantial reasoning has appeared to suggest the ruling was wrong.

But who is, and who is not covered by the Taylor ruling? Well, there is no reason to think that other complex gender identities such as a-gender or genderqueer are not protected. But the ruling does not go as far as to include “gender expression” as some campaigners have argued. So drag artists or transvestites – who cross-dress for performance or personal reasons but do not intend to “reassign” their sex – would seem not to be included as there is no intention to reassign their sex.

This brings us to sex itself. Is a trans woman protected as a woman and a trans man as a man? The Equality Act 2010 is silent on the effect on its sex discrimination provisions of the 2004 Gender Recognition Act (GRA), the formal legal route for state acceptable of altered sex (or gender, the GRA uses the terms interchangeably), or the effect of gender transition without obtaining formal recognition.

Further, the Equality Act includes no useful definition of man, woman, male, or female, only the interpretation section 212 which provides that “man” means a male of any age and “woman” means a female of any age. However, there includes no definition of “male” or “female” and so appears only to say that a boy is a man and a girl is a woman for an Act which deals with discrimination in such matters as education where the rights of children are regulated.

The answer, unsatisfactory as it may seem, is that discrimination is in the eye of the discriminator. So if a trans man (a person born female who now identifies as male) is perceived by the discriminator to be female, they may be subject to female sex-based discrimination and if perceived as male, male sex-based discrimination.

A footnote must be provided to mention disability. Being transgender is not, of itself a disability but many trans individuals face enormous mental stress before receiving treatment to allow them to live as they wish and in the long wait for and process of transition when people around them may be more or less supportive. That can lead to mental health conditions which do amount to a disability.

Robin Moira White became the first barrister to transition from male to female in practice at the discrimination bar in 2011. She writes and lectures regularly on transgender matters, and in May 2021 jointly published with Nicola Newbegin “A Practical Guide to Transgender Law”.