This is when you are treated differently because you are trans in one of the situations covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to being trans is lawful. These are explained below.

See more videos like this in the equality law: discrimination explained playlist on YouTube (opens in new window).

There are four types of gender reassignment discrimination.

Direct discrimination

This happens when someone treats you worse than another person in a similar situation because you are trans. For example:

• you inform your employer that you intend to spend the rest of your life living as the opposite sex. If your employer alters your role against your wishes to avoid you having contact with clients, this would be direct gender reassignment discrimination.

The Equality Act says that you must not be directly discriminated against because:

• you have the protected characteristic of gender reassignment. A wide range of people identify as trans. However, you are not protected under the Equality Act unless you have proposed, started or completed a process to change your sex.
• someone thinks you have the protected characteristic of gender reassignment. For example, because you occasionally cross-dress or do not conform to gender stereotypes (this is known as discrimination by perception).
• you are connected to a person who has the protected characteristic of gender reassignment, or someone wrongly thought to have this protected characteristic (this is known as discrimination by association).

Absences from work

If you are absent from work because of your gender reassignment, your employer cannot treat you worse than you would be treated if you were absent:

• due to an illness or injury. For example, your employer cannot pay you less than you would have received if you were off sick.
• due to some other reason. However, in this case it is only discrimination if your employer is acting unreasonably. For example, if your employer would agree to a request for time off for someone to attend their child’s graduation ceremony, then it may be unreasonable to refuse you time off for part of a gender reassignment process. This would include, for example, time off for counselling.

Indirect discrimination

This happens when an organisation has a particular policy or way of working that puts people with the protected characteristic of gender reassignment at a disadvantage.

Sometimes indirect gender reassignment discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the discrimination. This is known as objective justification. For example: 

• An employer has a practice of starting induction sessions for new staff with an ice-breaker designed to introduce everyone in the room to each other. Each worker is required to provide a picture of themselves as a toddler. One worker is a trans woman who does not wish her colleagues to know that she was brought up as a boy, so she does not bring her photo and is criticised by the employer in front of the group for not joining in. The same approach is taken for all new staff, but it puts people with the protected characteristic of gender reassignment at a particular disadvantage.  This would be unlawful indirect discrimination unless the employer could show that the practice was justified.

Harassment

Harassment is when someone makes you feel humiliated, offended or degraded for reasons related to gender reassignment. For example:

• a person who has undergone male-to-female gender reassignment is having a drink in a pub with friends and the landlord keeps calling her ‘sir’ or ‘he’ when serving drinks, despite her complaining about it.

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 harassing you, you will not be able to make a claim for harassment against the organisation, only against the harasser.

Victimisation

This is when you are treated badly because you have made a complaint of gender reassignment discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of gender reassignment discrimination. For example:

• a person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.