The Sex Discrimination Act 1975 (‘SDA’) provides statutory protection against direct discrimination, victimisation and harassment for those who have undergone, plan to undergo or are undergoing gender re-assignment. The provisions provide protection from discrimination in the fields of employment and vocational training, and in education, the provision of housing, or goods, facilities and services.

The statutory definition of gender re-assignment for the purposes of the SDA is as follows:
‘a process undertaken under medical supervision for the purpose of re-assigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of that process.’

Under the GRA, a transsexual whose change of gender has been recognised and who has had a certificate issued should be treated ‘for all purposes’ as a person of the acquired gender. This is regardless of whether the individual is pre or post-operative. If no gender recognition certificate has been obtained the legal position of pre-operative transsexuals is weaker than post-operative transsexuals.

In 2004 the House of Lords established that post-operative transsexuals are entitled to be treated as a person of the reassigned gender (A v Chief Constable of West Yorkshire Police (2004)). On the other hand, pre-operative transsexuals are not automatically entitled to be treated as members of the sex that they wish to be, although an employer still has a responsibility to consider what treatment is the most appropriate in all the circumstances.

Thus the Court of Appeal held in the case of Croft v Royal Mail Group plc (2003),that a pre-operative male to female transsexual was not discriminated against when her employer refused to allow her to use the female toilets. The use of the female toilets prior to an operation would depend ‘on all the circumstances’, including the stage reached in treatment, how the employee presents, and the views of other employees. In this case separate unisex toilet facilities had been provided, and in the circumstances accorded adequate respect for the employee’s dignity, until the stage was reached at which female toilets would be more appropriate.

Discrimination includes direct discrimination, indirect discrimination, harassment and victimisation, and the structure of the relating to discrimination on grounds of transgender mirrors the Sex Discrimination Act 1975 provisions. See What is Sex Discrimination for further information.

Genuine Occupation Requirements

Once a person has received a gender recognition certificate under the GRA it will always be unlawful to discriminate against him or her on grounds of gender reassignment except as provided for under that Act. However, in certain limited circumstances, it is not unlawful to discriminate against a non-certificated person on grounds of gender reassignment if it is a genuine occupational requirement that a non-transsexual be employed due to the essential nature of the post or the particular duties attached to it. Similar defences apply to other discriminated groups. There are two ‘genuine occupational requirements’ defences that apply to transsexuals.

The first defence is where the post requires a person of a particular sex. These provisions mirror equivalent provisions in relation to sex discrimination.

Examples of such genuine occupational requirements include:

• Jobs which rely on a particular sex for their physiology (with the exception of physical strength or stamina) e.g. male or female models, or for authenticity e.g. actors.
  
• Jobs involving physical contact or issues of decency and privacy (e.g. care assistants or toilet attendants). This defence would not necessarily extend to post-operative transsexuals. The House of Lords held in A v Chief Constable of West Yorkshire Police (2004) that a post-operative transsexual could not be excluded from serving as a police constable despite being required to conduct intimate physical searches under statute, since she had to be recognised in her reassigned gender.
  
• Jobs involving living or doing work in a private home which involves physical or social contact or knowledge of intimate details of the home owner (e.g. live in nanny, carers).
  
• Jobs in single sex establishments such as hospitals, prisons, or care homes, where it is reasonable for the job to be held by a particular sex.
  
• Jobs involving provision of personal educational or welfare services to vulnerable persons (e.g. abuse counselling, but this provision does not normally apply to teachers in single sex schools).
  
• Jobs requiring persons to live-in, where it would not be reasonable to require the employer to provide separate accommodation or facilities (e.g. ships, submarines).
  

This defence allows the employer to discriminate against transsexuals in the recruitment process, during employment and in the termination of employment. However, it does not allow an employer to discriminate if other persons already employed could reasonably be required to carry out any duties falling within the genuine occupational requirement exceptions. Further, even if it is not possible for others to carry out the genuine occupational requirement duties, an employer is still subject to the overarching requirement that the discriminatory treatment is reasonable in all the circumstances.

The second defence is where the post requires a person who is not a transsexual. The circumstances are more limited than those applying to the first defence. Examples of such genuine occupational requirements include:

• Jobs involving intimate physical searches under statute, unless in relation to recruitment, there are other persons already employed who could reasonably be required to carry out any duties falling within the exceptions.
  
• Employment in private homes involving physical or social contact, or knowledge of intimate details of the home owner.
  
• Jobs involving provision of personal educational or welfare services to vulnerable persons.
  
• Jobs requiring persons to live-in, where it would not be reasonable to require the employer to provide separate accommodation or facilities.
  

Unlike the first defence, there is no overarching requirement of reasonableness, or requirement to show that it is not reasonably possible for other employees to carry out those duties. However, this defence does not allow employers to employ transsexuals on different terms or employment benefits or otherwise subject them to a detriment. Finally, even if not certificated, it is debatable whether this defence can be relied upon in relation to post-operative transsexuals in the light of the decision of the House of Lords in A v Chief Constable of West Yorkshire Police (2004) that once an individual has completed surgery he or she should be regarded for all practicable purposes as being of the acquired gender.

Exemptions

In addition there are some specific exceptions which apply. There is an ‘organised religion exemption’ which enables an employer or qualifying body to discriminate against transsexuals in order to comply with the doctrines of that religion or to avoid conflict with a significant number of the religion’s followers. Under the SDA this exemption applies to persons who are undergoing, as well as those who have undergone, gender reassignment. The GRA specifically enables such discrimination to continue even against persons who have received a gender recognition certificate.

The SDA also provides an exemption in relation to single-sex sporting activities. It relates only to competitive sports, games or activities where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man or vice versa. Therefore this provision would apply to football, tennis or athletics but not to bridge, chess or snooker. It only covers those participating in the sport as ‘competitors’ and cannot be applied to persons participating in the sport as non-competitors, e.g. referees, grounds staff, managers and / or coaches.