3 Gender reassignment
The Equality Act 2010 explains that 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.’
While the Equality Act refers to an individual as being ‘transsexual’, for many this is now an outdated term. A more commonly used word today is ‘transgender’, but that is not without its objectors either. Others prefer to use the word ‘trans’. The best approach is to find out which terminology an individual is comfortable with and use that.
Following the Supreme Court’s April 2025 ruling that ‘woman’ means ‘biological woman’, ‘man’ means ‘biological man’ and ‘sex’ means ‘biological sex’, Chapter 12 of the Judicial College’s Equal Treatment Bench Book (p193, 2025) clarifies the following (Note – a GRC in this context is a gender recognition certificate):
‘The Gender Recognition Act (GRA) 2004 applies to those who have a desire to change their sex on their birth certificates, and to do so they must satisfy a mix of legal and medical criteria (although there is no requirement to have undergone any surgery). A GRC does not apply to the Equality Act 2010 (…), but does apply to some other areas of law, e.g. a GRC allows the person to marry in their acquired gender.’
The reasoning behind the Supreme Court decision is explained by Shadi (2025) as follows:
- when a person receives a gender recognition certificate, their assigned gender is referred to as being their ‘certified sex’. The Court held that interpreting ‘sex’ to include ‘certified sex’ in the Equality Act would lead to incoherence. An example was given in relation to sex discrimination and pregnancy and maternity provisions, which would become unworkable unless ‘man’ and ‘woman’ were given their biological meaning.
- including ‘certified sex’ within the definition of ‘sex’ would cut across the definitions of ‘man’ and ‘woman’ and the protected characteristic of ‘sex’ in a way that would lead to confusion.
- including ‘certified sex’ within the definition would result in transgender people who have a gender recognition certificate having greater rights than those who do not have one.
- this interpretation of ‘sex’ would not remove protection from transgender people, both with or without a gender recognition certificate. The protected characteristic of ‘gender reassignment’ protects trans people from discrimination and harassment on the grounds of their acquired gender and will be applied in the same way as it would be under discrimination on the grounds of sex.
At the time of writing, several of the organisations providing support and guidance to employers on this issue, e.g. ACAS and EHRC are reviewing and updating their website content in the light of the Supreme Court ruling.
Exploring discrimination
Consider these examples of discrimination (adapted from ACAS, 2024). At the time of writing, this ACAS webpage is under review following the Supreme Court’s 2025 ruling:
| Direct discrimination | Alex is a sales rep and wants to continue working as usual while transitioning. Alex's employer thinks customers might be prejudiced and the business could lose money. They instruct Alex not to visit customers but to phone instead. This is likely to be direct discrimination. |
| Indirect discrimination | Raja is starting a new job. The employer asks for proof of identity. The employer's policy says they only accept a birth certificate. Raja is a trans man. The birth certificate says 'female'. Raja would like to provide something else but the employer refuses. Raja does not want to be outed to the employer as transgender. Raja decides not to take the job. This is likely to be indirect discrimination, because the employer's policy puts Raja at a disadvantage. The employer could use other ways to prove identity. |
| Harrassment | Andie is a trans woman and has asked to be referred to as 'she' or 'they'. Two people Andie works with keep referring to Andie as 'he'. Andie tries to ignore this, thinking it's accidental. However, it becomes clear this is deliberate. Andie feels upset and humiliated. This is likely to be harassment related to gender reassignment. Andie's employer could be legally liable for the harassment if they do not take steps to stop it. The employees who carried out the harassment could also be liable. |
| Victimisation | Pat works in HR for a large company. An employee who is transitioning has a problem with getting their name updated on staff systems. The employee raises a grievance and Pat supports it as a witness. Pat says the company's systems caused discrimination. Pat is strongly criticised by senior management for not being loyal to the company. This is likely to be victimisation. |
Enhancing your awareness
Research conducted by Totaljobs (2021) surveyed over 400 trans (their chosen terminology) employees on their experiences in the workplace, covering a range of topics from discrimination to HR support. Some of the key findings include:
- In 2016, 52% of trans people reported that they didn’t reveal their gender identity at work, in 2021 the number has risen to 65%.
- 56% of trans people believe it’s harder for them to find a job.
- 53% think they experience more barriers to progress to senior positions than non-trans people.
- 33% have experienced discrimination in job interviews and applications.
- When asked what they look for when considering a new role, 33% want to know if a company has trans-specific policies in place.
- In 2016, 38% of trans workers said they’d experienced discrimination from their colleagues, in 2021 that’s down to 25%.
- In 2021, 43% of trans employees specifically said they’ve left a job because the environment was unwelcoming, up from 36% in 2016.
The report goes on to highlight two actions that should be avoided:
Deadnaming – calling someone by their birth name after they have changed their name, usually as a part of gender transition.
Misgendering – misuse of pronouns, i.e. using a form of address which does not reflect their gender identity.
Some of the key findings noted here indicate a worsening rather than improving picture. Throughout the report, partners and national transgender charity Sparkle offer advice to employers, including the following:
- Don’t assume – no two trans people will have an identical journey so treat everyone uniquely and without bias.
- Communicate your values – publish a positive statement on equality, diversity and inclusion on your website.
- De-gender the language – in the recruitment process and internal documents. For example, swap ‘he’ and ‘she’ for neutral pronouns.
- Train your staff – run courses and training on gender diversity and inclusion, use a top-down, bottom-up approach to ensure everyone is involved.
- Start a conversation – invite a trans organisation to deliver a talk.
Following the Supreme Court judgement, Shadi (2025) gives the following suggestions:
- arrange to speak or meet with transgender employees and make sure that they are supported
- give transgender employees a contact point to call or e-mail if they have any concerns
- review policies and make changes where they are in breach of the latest legal position
- where possible provide toilet or changing facilities which are gender neutral and have self-contained rooms with floor-to-ceiling doors, a sink and a drying facility.
In the next section, you’ll briefly consider sexual orientation in the workplace.