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Transgender equality and discrimination

Here we describe what transgender means, set out the law protecting transgender people from discrimination and suggest the workplace issues to consider when someone is changing gender.

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What does ‘transgender’ mean?

While a person’s biological sex is defined at birth by their reproductive organs and physical differences, their 'gender identity' describes the inner sense of feeling that they are a man or woman.

Transgender, or 'trans', people strongly and consistently identify with a gender other than that which they were assigned at birth. They live (or wish to live) permanently in their 'new' gender.

The 2021 Census revealed that 0.5% of over-16s in England and Wales said their gender identity was different from the one they were assigned at birth.

Some trans people do not feel themselves to be either male or female and may identify as non-binary, genderfluid, or genderqueer.

A trans person may or may not be diagnosed with the officially recognised psychological condition of gender dysphoria. This is where clinically significant distress is caused when a person’s assigned birth gender is not the same as the one with which they identify.

Trans people may describe themselves as transgender, transsexual, non-binary, agender, trans man, trans woman, or many other terms. Pronouns are terms like ‘he’, ‘she’ or ‘they’ used to refer to someone. Using inclusive language is an important way to support trans and non-binary people.

Further explanation and information is available from Stonewall, which also contains a glossary of terms.

Transgender discrimination and the law

Trans people are legally protected from discrimination in the workplace as “gender reassignment” is a protected characteristic under the Equality Act 2010. The protected characteristic of ‘gender reassignment’ includes people who are planning to transition, are in the process, or have already transitioned. Transitioning includes things like changing your name or pronouns, and/or a medical transition. It does not have to include a medical procedure.   

People discriminated against because they are perceived to be trans, or who are discriminated against because of their association with trans people or issues, are also protected. Although the law currently only recognises two sexes - male and female - case law has shown that this section of the law also covers non-binary workers. 

In most cases, a worker’s gender is of no relevance to their ability to do a particular job. It is unlawful to discriminate against a person for the purpose of employment (recruitment, promotion, access to benefits, selection for redundancy, vocational training etc) because that person intends to undergo gender reassignment, is undergoing gender reassignment or has undergone gender reassignment. 

However, the Equality Act 2010 does allow for an exception where being of a particular sex is an ‘occupational requirement’ of that post, e.g, in a post where services are provided to one gender only, such as a women’s refuge. In these cases, the law makes it clear that the employer must act reasonably and discuss options for the tasks to be reassigned or the person redeployed.   

Your rights in the workplace don’t depend on whether or not you have a gender recognition certificate. The Gender Recognition Act 2004 lays out the process by which someone can obtain a gender recognition certificate – which changes their gender in official documentation, but employers should not require a certificate to implement changes requested by a trans or non-binary staff member. 

If you take time off work for reasons related to gender reassignment, then your employer must not treat you less favourably than if you were taking time off for another medical reason such as sickness or injury. Otherwise, this could be discrimination. (Best practice is for employers to have a specific leave policy that covers time off related to gender reassignment.) 

Public bodies in England, Scotland and Wales have a statutory duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations for transgender people.
This is called the Public Sector Equality Duty. A similar duty is in force in Northern Ireland. 

Trans people are legally protected from discrimination in the workplace as “gender reassignment” is a protected characteristic under the Equality Act 2010. The protected characteristic of ‘gender reassignment’ includes people who are planning to transition, are in the process, or have already transitioned. Transitioning includes things like changing your name or pronouns, and/or a medical transition. It does not have to include a medical procedure.   

People discriminated against because they are perceived to be trans, or who are discriminated against because of their association with trans people or issues, are also protected. Although the law currently only recognises two sexes - male and female - case law has shown that this section of the law also covers non-binary workers. 

In most cases, a worker’s gender is of no relevance to their ability to do a particular job. It is unlawful to discriminate against a person for the purpose of employment (recruitment, promotion, access to benefits, selection for redundancy, vocational training etc) because that person intends to undergo gender reassignment, is undergoing gender reassignment or has undergone gender reassignment. 

However, the Equality Act 2010 does allow for an exception where being of a particular sex is an ‘occupational requirement’ of that post, e.g, in a post where services are provided to one gender only, such as a women’s refuge. In these cases, the law makes it clear that the employer must act reasonably and discuss options for the tasks to be reassigned or the person redeployed.   

Your rights in the workplace don’t depend on whether or not you have a gender recognition certificate. The Gender Recognition Act 2004 lays out the process by which someone can obtain a gender recognition certificate – which changes their gender in official documentation, but employers should not require a certificate to implement changes requested by a trans or non-binary staff member. 

If you take time off work for reasons related to gender reassignment, then your employer must not treat you less favourably than if you were taking time off for another medical reason such as sickness or injury. Otherwise, this could be discrimination. (Best practice is for employers to have a specific leave policy that covers time off related to gender reassignment.) 

Public bodies in England, Scotland and Wales have a statutory duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations for transgender people.
This is called the Public Sector Equality Duty. A similar duty is in force in Northern Ireland. 

Trans people are legally protected from discrimination in the workplace as “gender reassignment” is a protected characteristic under the Equality Act 2010. The protected characteristic of ‘gender reassignment’ includes people who are planning to transition, are in the process, or have already transitioned. Transitioning includes things like changing your name or pronouns, and/or a medical transition. It does not have to include a medical procedure.   

People discriminated against because they are perceived to be trans, or who are discriminated against because of their association with trans people or issues, are also protected. Although the law currently only recognises two sexes - male and female - case law has shown that this section of the law also covers non-binary workers. 

In most cases, a worker’s gender is of no relevance to their ability to do a particular job. It is unlawful to discriminate against a person for the purpose of employment (recruitment, promotion, access to benefits, selection for redundancy, vocational training etc) because that person intends to undergo gender reassignment, is undergoing gender reassignment or has undergone gender reassignment. 

However, the Equality Act 2010 does allow for an exception where being of a particular sex is an ‘occupational requirement’ of that post, e.g, in a post where services are provided to one gender only, such as a women’s refuge. In these cases, the law makes it clear that the employer must act reasonably and discuss options for the tasks to be reassigned or the person redeployed.   

Your rights in the workplace don’t depend on whether or not you have a gender recognition certificate. The Gender Recognition Act 2004 lays out the process by which someone can obtain a gender recognition certificate – which changes their gender in official documentation, but employers should not require a certificate to implement changes requested by a trans or non-binary staff member. 

If you take time off work for reasons related to gender reassignment, then your employer must not treat you less favourably than if you were taking time off for another medical reason such as sickness or injury. Otherwise, this could be discrimination. (Best practice is for employers to have a specific leave policy that covers time off related to gender reassignment.) 

Public bodies in England, Scotland and Wales have a statutory duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations for transgender people.
This is called the Public Sector Equality Duty. A similar duty is in force in Northern Ireland. 

Gender reassignment

What is gender reassignment?

When a person wishes to live as a gender other than that they were assigned at birth they will go through a process of 'gender reassignment'. This is likely to involve social changes, such as using a new name or changed pronouns ('he', 'she', etc) and/or dressing differently.

Some will wish to undergo a medical and/or surgical transition process to change their bodies. This involves a combination of hormone medication and surgery, or sometimes just hormone treatment, to bring the body more closely in line with the underlying gender identity.

This is a long and arduous process and has implications at the workplace of those undergoing it.

What things count as gender reassignment discrimination in law?

There are four types of employer conduct that might be considered gender reassignment discrimination under the Equality Act 2010.

The most obvious form of unlawful discrimination is when the employer treats a trans person 'less favourably' than they would someone who is not. This is direct discrimination.

An example would be if someone informs their employer that they plan to live permanently as a different gender, and the employer transfers them away from a role with client contact.

Indirect discrimination occurs when an employer has in place an organisational procedure or practice that puts transgender people at a disadvantage compared with others.

If an employer fails to protect a transgender person from harassment, they may be guilty of discrimination, unless they can show they have done everything they could to prevent it.

Victimisation is where an employer treats someone badly because they have made a complaint of gender reassignment-related discrimination or has supported someone who has done so.

In limited circumstances, it may be lawful for an employer to discriminate if the action is deemed 'proportionate'. An example might be where the job involves intimate searches.

However, such exceptions do not apply where the person concerned holds a Gender Recognition Certificate.

Guidance on gender reassignment discrimination is provided by the Equality and Human Rights Commission.

What is a Gender Recognition Certificate?

The Gender Recognition Act 2004 enables trans people to acquire full legal equality in their acquired gender. It sets out how individuals can apply for a Gender Recognition Certificate (GRC), which changes a person’s legal gender, entitling them to all the legal rights attached to a person of the acquired gender, for example, in the context of pensions.

The Act also protects the privacy of an individual’s trans status or application for gender recognition. Anyone who acquires information about someone’s trans status may be liable to criminal proceedings if they pass that information onto a third party without the permission of the individual. This applies to employers, trade union representatives and union officials.

Issues facing trans and non-binary physiotherapy staff 

Transgender staff in the NHS tend to face higher levels of bullying, harassment and discrimination, including from colleagues and managers. 

A recent survey found that 55% of trans employees had experienced transphobia while working within the NHS in England. The NHS Confederation has created guidance on how to support trans and non-binary healthcare staff. 

CSP member Shannon Pinnington, a specialist neuro physiotherapist at Northern Care Alliance NHS Trust and a member of the CSP’s LGBTQIA+ network, discusses the change required to create a diverse and inclusive workforce.  

CSP members can also face issues such as deadnaming and misgendering at work. CSP National Officer, Siân Caulfield discusses both of these issues: 

Employment rights for trans and non-binary staff

Should I tell my employer if I am trans or non-binary? 

It is your decision whether or not to tell your employer that you are trans or non-binary. It does not affect your rights either way. 

There is no one right way to come out at work and different people will approach it differently. For instance, you might choose to tell your close colleagues first, or you could ask your employer to handle any communications with colleagues. Many trans people might decide not to share information about their identity at work, for instance if they have already transitioned. 

If you are planning to transition at work (for example, changing the name and pronouns you use) then you will usually need to tell your employer for practical reasons. They should work with you to make a plan to update your records, communicate any changes to other staff, and coordinate any support you might need.  

Your employer should not require ‘evidence’ from you about your gender identity or transition, and they must respect your confidentiality beyond any communication plan you have agreed. HMRC requires a gender recognition certificate to update the sex marker on their records, but other work-related documents can be updated without a certificate. 

It’s a good idea to seek out some advice and support. Gendered Intelligence has a helpful ‘Transition at Work Checklist’ that is available on request and covers the kinds of records that should be changed such as your email address, payroll records, or name badges. You can also speak with your CSP rep about how to approach this, or approach representatives of LGBTQ structures in your workplace. 

What should I do if I have been discriminated against or experienced harassment? 

Here are some immediate steps you can take if you have experienced discrimination at work: 

There are different routes for addressing discrimination. 

  • You could seek an informal resolution, meaning an approach that is not determined by your employer’s grievance procedure. This could involve mediation, or someone raising the issue with the person you have complained about.
  • You could submit a grievance to be handled through your employer’s formal procedure. Your complaint should be investigated by a neutral party. A discrimination complaint could also be initiated by a trade union rep or a staff member who witnessed discrimination against a colleague.
  • You could bring a claim to an Employment Tribunal. It will usually strengthen your claim to have pursued an internal process first. Remember that there are strict time limits; for most types of claim, you have three months minus one day from when the problem at work happened. 

Reporting discrimination can be hard, and surveys have found that around 70% of trans and non-binary staff in the NHS who experienced discrimination, abuse or harassment did not report it to their supervisor.1 The CSP is here to support you, and your employer should also offer support during the process. 

How can employers support trans and non-binary staff? 

Employers are duty-bound to protect trans and non-binary people against discrimination and harassment in the workplace related to their identity. The employer is liable for any discriminatory actions by someone acting on their behalf, whether or not it was done with their knowledge, unless they can show that they had taken all reasonable steps to prevent such actions.     

Your employer must also respect your confidentiality. Whether a transgender person is out at work about their gender history is their decision, and employers must respect this. They have a duty to keep personal staff records safe and up to date under GDPR legislation – you also have rights to access and rectify your personal data. 

If you hold or have applied for a gender recognition certificate, then it becomes an offence for your employer to disclose that you are trans or that you applied for a gender recognition certificate.    

Employers also have a duty to protect the health, safety and wellbeing of employees. They must consult with trade union or employee representatives about matters affecting health and safety. Health and safety law also covers stress and mental health. 

On top of their statutory duties, a good employer will: 

  • Update internal systems sensitively with any name or pronoun changes
  • Foster an inclusive workplace culture
  • Offer flexibility for medical appointments
  • Ensure equal access to opportunities
  • Provide support through transition 

What policies should my employer have to support trans and non-binary staff? 

It is important for employers to set out a clear commitment to trans inclusion in their policies. A standalone trans inclusion policy or statement is welcome, but employers should also integrate trans inclusion into other policies. 

Policy areas to consider include: 

  • Bullying and harassment
  • Records and confidentiality
  • Paid time off for gender-related healthcare
  • Dress codes
  • Access to gendered facilities
  • Equality monitoring 

Please see the checklist below for more information and resources on what a good policy might look like. 

How can employers support employees in the process of transitioning?

The process of changing gender is long and will include a period where the individual lives as a member of the new gender before they undergo surgery.

This will be for a minimum of a year and usually two or more years, and so clearly has implications for their working environment.

The process can be very stressful for the individual and requires support and sympathetic handling from all concerned. Confidentiality is usually especially important.

At the point when someone transitions, they will need time off for treatment. They may wish to transfer to another position when they adopt their new gender.

There are many aspects that employers will need to address, such as information and training for managers and colleagues, flexibility in dress codes during transition, use of toilets and changing facilities and relevant harassment policies.

If a trans member approaches a union rep for support, any steps to be taken must be agreed with the member, and the maximum confidentiality must be observed for as long as the member wishes that to be the approach.

The TUC has guidance for union reps on supporting transgender people at work, and the CSP.

Checklist for managers

  • Be clear on how you stand on transphobic behaviour and discrimination. Be prepared to challenge transphobic remarks, jokes or behaviour. It is a manager’s responsibility to ensure that all staff are treated equally and are not subjected to discrimination or harassment
  • Be prepared to act decisively when you encounter inappropriate behaviour. The NHS is committed to tackling all forms of discrimination and it is part of your job to carry this out at local level
  • Gender identity and gender reassignment should be included in equality policies
  • Ensure you are aware of your policies and procedures on harassment, bullying and discrimination
  • Organise training, information sessions and discussions on the issues.
  • Staff undergoing gender reassignment are entitled to sick leave from work for specialist medical appointments and surgery, and possibly paid special leave depending on local agreement
  • When an individual has a new gender, all records should be changed and old records should be kept confidential or destroyed
  • Remember it is illegal to disclose a trans person’s previous gender status where they hold a Gender Recognition Certificate.
  • If you are not sure of your exact responsibilities or need more information and training contact the appropriate department
  • Encourage transgender staff to join the CSP LGBT+ network and if possible allow study leave to attend the biannual meetings.

Information for reps and stewards

As a CSP rep, how can I support trans and non-binary staff in my workplace? 

Reps can have an important role in supporting trans and non-binary colleagues in the workplace. This could involve one-to-one support for individuals, working on securing better policies, and making sure that the CSP is a source of support for trans members. 

The first thing to do is to educate yourself about the issues so that you are in a better position to make a difference for trans and non-binary members. 

It’s good to be proactive. You could distribute information and materials to members, check your employer’s policies and make sure that they are explicitly trans-inclusive, or organise workshops for members. 

If a trans or non-binary member approaches you for support, make sure to listen carefully to make sure you understand what problems they are facing and what a solution would look like. Try not to make assumptions and remember that you must respect confidentiality. 

Checklist for reps and stewards

  • Be clear on how you stand on transphobic behaviour and discrimination. Be prepared to challenge transphobic remarks, jokes or behaviour as part of your steward’s role
  • Educate yourself about the issues so you are in a position to give at least some initial advice
  • If asked, point the member in the direction of relevant support groups and information sources
  • Union records relating to the trans member should be changed where appropriate
  • Remember it is illegal to disclose a trans person’s previous gender status where they hold a Gender Recognition Certificate
  • Educate members – organise speakers or a short training session for one of your meetings. Informal discussions can be a vital part of education and a short conversation with a member will be more effective than a long lecture!
  • Distribute information and posters which advertise union and equality messages and events
  • Challenge management – make sure there are equality policies and they have a firm commitment to putting them into practice
  • Check all Trust policies to ensure that they do not discriminate against trans staff and if they need revising raise at the Joint Negotiating Committee
  • Ensure that trans people are specifically included in anti-harassment, bullying and discrimination policies in place and they are widely publicised
  • Put pressure on management to organise training and diversity courses
  • Take up cases on behalf of members. These may be difficult, but the CSP Employment Relations and Union Services (ERUS) Department Officers will support you. This may involve using specific procedures or a more general grievance procedure. Occasionally, the case may go as far as an Employment Tribunal (ET), in which case the CSP’s solicitors will be involved
  • If you think you may have an ET case, be aware of time limits and discuss with your SNO at the outset
  • Make sure your members are aware of the CSP network for LGBT+ members and how to join.

What is the CSP doing?

How is CSP supporting trans members? 

The CSP opposes transphobia. We are committed to eradicating it from our profession. We recognise that the discrimination and disadvantage that transgender people face can be context-specific and intersectional. 

The CSP has published a position statement on transphobia and is committed to developing education around transgender issues, providing advice, and challenging transphobia within healthcare and outside the profession. 

The CSP’s LGBTQIA+ network supports and empowers lesbian, gay, bisexual, transgender, queer, intersex, and asexual members in the physiotherapy profession.  

Where can I find guidance about supporting trans and non-binary patients?

The CSP has published guidance on working with transgender people in physiotherapy practice. The guidance is designed to help you respond to the needs of patients and service users who identify as transgender as they access the physiotherapy services you are providing to them.  

How can I access support from the CSP? 

If you need support on an employment matter or on health and safety, contact your workplace rep in the first instance. Or call the CSP Enquiries Team on 020 7306 6666 or enquiries@csp.org.uk.   

 

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