Legal Rights in relation to trans equality: an overview

A brief introduction to the law covering trans equality.

There are many reasons for promoting equality, diversity and inclusion within the workplace, including the moral, ethical and business case arguments for doing so. However, there are also legal responsibilities placed on all employers and anyone who works for them to ensure that their staff are protected. This is a brief introduction to the legislation.

The Equality Act 2010

The Equality Act 2010 applies to England, Scotland and Wales. Gender reassignment is one of nine protected characteristics under the act. The protected characteristic of gender reassignment applies to a person who ‘proposes 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’ (Equality Act, 2010).

Importantly, the EHRC technical guidance states that ‘under the [Equality] Act gender reassignment is a personal process … rather than a medical process. Protection applies from the moment the person indicates their intention to start the reassignment process, even if they subsequently change their mind. The act does not require someone to undergo medical treatment in order to be protected’ (EHRC, 2012).

In short the act affords protection to the following people.

  • Trans people including applicants to and students in post-school and higher education, former students, employees and former employees.
  • People who experience direct discrimination or harassment because they are perceived to be trans.
  • People who experience direct discrimination or harassment because they are associated with someone who has the protected characteristic of gender reassignment. For example, it would protect the parents/guardians of a trans person from being discriminated against or harassed because their child is transitioning.
  • People who are victimised because they have asserted their rights under the Equality Act, have helped someone else to do so, or are suspected of doing so or intending to do so.
  • People who experience indirect discrimination as a result of a provision, criterion or practice that may appear neutral, but its impact causes disadvantage that is not considered to be a proportionate means of achieving a legitimate aim. For example, a blanket policy of not changing names or gender on student and staff records may cause trans people significant disadvantage as it will cause them difficulties when going about their day-to-day life at their HEI or college.

The Gender Recognition Act 2004

The Gender Recognition Act 2004 covers all four countries of the UK and allows trans people to apply to the gender recognition panel to seek full legal recognition of their self-identified gender. If the holder of a full GRC had their birth registered in the UK, they will be issued with a new birth certificate which does not disclose the fact that there has been a change from their sex as recorded on their original birth certificate. If a trans persons birth is registered abroad they will need to apply for a new birth certificate from the country in which they were born. However, not all countries issue new birth certificates.

Crucially, the Gender Recognition Act gives trans people privacy rights. Anyone who acquires information that a person is trans or has a trans history in an official capacity (in the course of their job, for instance) is liable to criminal proceedings if they pass that information to a third party without the permission of the individual. For example, this could be as a staff member in relation to a student.

It is also illegal to ask a person for their Gender Identity Certificate.

Human Rights Act 1998

The Human Rights Act 1998 applies to all four countries of the UK and provides protection to trans people, principally under the right to a private life (Article 8). The courts have interpreted the concept of ‘private life’ in a very broad way to cover, among other things, a person’s right to express a sexual identity, to live a particular lifestyle and to choose the way they look and dress.

It also means that personal information (including official records, photographs and letters) should be kept securely and not shared without the permission of the individual concerned. In addition, the right to privacy states that unless a public authority is acting in accordance with the law, there should be no interference by a public authority with a person’s exercise of their right to a private life.

Article 3 gives a right to freedom from torture and inhuman or degrading treatment. It may be used to prevent degrading treatment of a trans person, for instance, excluding them from facilities that are appropriate to their gender.

General Data Protection Regulations / Data Protection Act

Under the Data Protection Act 1998, which applies to all four countries of the UK, trans status and gender reassignment constitute ‘sensitive data’ for the purposes of the legislation. Therefore information relating to a person’s trans status cannot be recorded or passed to another person unless conditions under schedule 3 of the Data Protection Act for processing sensitive personal data are met. These include but are not limited to the need for an individual’s explicit consent for information to be processed. The definition of processing under the act is very broad and covers both data and information in relation to obtaining, recording or holding the information and data or carrying out any operation on them.