Know your rights, A guide to your rights as a trans person
By Cardiff LGBTQ+ Law Clinic
More than ever in recent history, it is imperative that our community is aware of the legal rights and protections for our trans siblings. So if you are trans, or know someone trans, this one's for you!
A massive thank you to the Cardiff LGBTQ+ Law Clinic for this guidance and for all you do for the community.
EQUALITY ACT 2010
The Equality Act 2010 (EA 2010) legally protects people from discrimination in the workplace and in wider society,
There are nine protected characteristics:
Marriage and civil partnership
Pregnancy and maternity
Religion or belief
The protected characteristic which protects trans people is "gender reassignment'
"A person has the protected characteristic of gender reassignment if the person:
is proposing to undergo,
is undergoing, or
a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex' - section 70 (1) Equality Act 2010
Gender reassignment" can refer to social transition (eq changing your name pronouns or appearance) as well as medical transition
There is no requirement to undergo or plan to undergo any medical treatment to be protected from discrimination
You can be protected before you transition, as the definition includes anyone ‘proposing to undergo' gender reassignment
Trans people of all ages can be covered, including under 18s
Non-binary and genderfluid people are likely to be protected from discrimination
Did you know
You can be protected if you are discriminated against because you are associated with a trans person. This is known as discrimination by association.
For example, if a cisgender woman faces negative comments about her appearance and teasing from colleagues who spread a rumour she is trans. This may count as unlawful harassment under the Equality Act.
The Equality Act sets out the different ways in which it's unlawful to treat someone.
Four main types of prohibited conduct
Where are you protected?
In the workplace
Using public service e.g. healthcare, education, etc.
Using business or other organisations which provide services and goods
Most clubs and associations
When interacting with public bodies e.g., local authority, prisons, police forces
This means treating one person worse than another person because of a protected characteristic.
If person (A) discriminates against another (B) if, because of a protected characteristic; A treat B less favourably than A treats or would treat other
Section 13, Equality Act 2010
Example: the employer treats another ‘less favourably’ due to a characteristic they cannot change.
When a policy/practice is applied in the same way for everyone, but disadvantages a group who share a protected characteristic (e.g. trans people) in particular
section 19 Equality Act 2010.
However, it can be lawful if there is 'objective justification'.
Example: an online company makes it impossible for customers to update the name
on their accounts. Is this objectively justified?
VICTIMISATION AND HARASSMENT
If you are treated unfairly/punished (‘subjected to a detriment’) for exercising your rights under the Equality Act
Section 27, Equality Act 2010
Being punished for making a complaint
Being punished for bringing a legal case under the Act
People cannot treat you in a way that violates your dignity or creates a hostile, degrading, humiliating, or offensive environment
Section 26, Equality act 2010
Offensive language used constantly
Verbal or threatening behaviour
Three different types of harassment - S 26, Equality Act 2010
Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them;
Unwanted conduct of a sexual nature, with the same purpose or effect;, or
Unwanted conducted of a sexual nature or relating to gender reassignment or sec, with the same purpose or effect, and the victim is treated less favourable than they would have if they rejected or submitted to the conduct
Harassment - what could count?
Intrusive personal questions
Being laughed at/stared at/pointed at
Gossiping/speculation about gender history/medical treatments
Sharing information without consent
Absences from work ‘because of gender reassignments’ are permitted and must not be treated less favourably than any other form of absence e.g. sickness or injury
Section 16, Equality Act 2010
You have the right to dress in line with your gender identity. You have the right to update your email, work ID, photographs, and workplace profiles to reflect your gender identity.
You have the right to privacy.
Your gender status and transition history should not be disclosed without your permission. If you obtain a Gender Recognition Certificate (GRC), your employment record must be changed (apart from your pension and National Insurance).
You should be able to update the name, title, and gender on your medical records upon request.
You have the right to respect for your identity while accessing healthcare service. You should not be misgendered.
You have the right not to be discriminated against by the local authority in regard to an application of homelessness.
You have the right to not be discriminated by letting agents/landlord - such as not being allowed to view or accept a property because of your gender identity status
Exemptions for sports
The Equality Act 2010 can allow trans people to be excluded from participating in certain sports in line with their identity, but only in specific circumstances. The organisation must show that excluding you is necessary to secure the safety of competitors or fair competition. Most sports governing bodies have their own policies about promoting trans people's participation in sports. If you have been unfairly excluded from taking part in sports, you may be able to challenge this legally.
Exemption for single-sex services
"If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your gender identity In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing, intends to undergo or has undergone gender reassignment."
Equality and Human Rights Commission Statutory Code of Practice (Services)
LEGALLY CHANGING YOUR GENDER
To legally change your gender and obtain a GRC, you have to go through the following process:
You have to be 18 year old or over, and have lived in your identified gender for two years before you make your application
Note that identified gender does not currently include non-binary identities
Evidence may include passport, rent books, wage slips, or benefit book
You have or have had a diagnosis or gender dysphoria
You do not need to have had gender reassignment surgery, but you will have to provide two medical reports. Usually, this includes one diagnosing you with gender dysphoria, by a ‘gender specialist’ and the other from your GP.
You will have to sign a legal statement that you intend to live in your new gender until death, as well as a statutory declaration that you are not married. If you are married, your spouse must give consent before a full certificate can be issued.
The application costs £5 - although the costs of obtaining supporting evidence can be much greater
Your application will then be passed to a Gender Recognition Panel (GRP), made up by legal and medical members. Application are generally considered without your presence and then the Panel may request further information or evidence from you at this stage
If successful, your GRC will be used to produce a new birth certificate. If refused, the GRP must provide reasons.
What happens next?
Consequences of obtaining a GRC
It allows trans people to receive a birth certificate which reflects their gender identity becomes for all purposes the acquired gender e.g. marriages, pensions, etc.
Section 9, Gender Recognition Act 2004
It does not affect the person’s status as father or mother of a child.
Section 12, Gender Recognition Act 2004
A recent case found that a trans man must be referred to as ‘mothers’ on children’s birth certificates if they have given birth.
Privacy rights: if someone has acquired information about an applicant’s gender history or applications in certain professional capacities, it is an offence to disclose that information.
Section 22, Gender Recognition Act 2004
There are some exemptions to the above, and there is a six-month time limit to take action.
NEED FURTHER SUPPORT?
Contact the clinic on:
Tel: 02920 453 111
Social Media: @cardiffLGBTQLaw