gender reassignment discrimination case law

Trans Woman’s Discrimination Suit Trimmed Against Ex-Employer

By Quinn Wilson

A trans woman can continue pursuing Title VII claims against her former employer for allegedly discriminating against her but can’t move forward with her federal disability- and state law-based allegations, a district court ruled.

Ayael Jade Amare, who is transgender and intersex, alleged that Lazer Spot Inc. failed to remedy a hostile work environment at its Stuarts Draft, Va., location and fired her in a retaliatory fashion in 2018, in violation of Title VII of the Civil Rights Act, according to the opinion. Amare also said employees at the trucking company sexually harassed her, violating the Virginia Values Act, and ...

Learn more about Bloomberg Law or Log In to keep reading:

Learn about bloomberg law.

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

State health plans must cover gender-affirming surgery, US appeals court rules

Medium Text

Rally after transgender kids banned from treatments in Georgia

Reporting By Brendan Pierson in New York, Editing by Alexia Garamfalvi and Bill Berkrot

Our Standards: The Thomson Reuters Trust Principles. New Tab , opens new tab

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at [email protected].

Industry Insight Chevron

Mike Scarcella, David Thomas

Karen Sloan

Henry Engler

Diana Novak Jones

Add a bookmark to get started

Supreme Court eases the path for discriminatory transfer claims

The US Supreme Court’s recent ruling in Muldrow v. City of St. Louis clarifies whether a job transfer on the basis of sex could be considered discrimination within the meaning of Title VII, even where the transfer does not cause “significant” harm to the worker.

The Court ruled on April 17, 2024, that, although employees must show some harm with respect to an identifiable term or condition of employment resulting from a job transfer in order to prevail in a Title VII suit, they do not need to show that the harm incurred was “significant” or otherwise exceeded some heightened bar.

Specifically, the Court rejected the legal standards being applied by any circuit court that has previously required a Title VII plaintiff to show “significant,” “material,” or “serious” injury in connection with the challenge of a job transfer. Simply put, Muldrow is likely to have a reverberating impact on whether job transfers (or work reassignments or other job-related actions that allegedly leave an employee "worse off" with respect to an identifiable term or condition of employment) constitute an adverse employment action for purposes of anti-discrimination statutes.

Factual background

Plaintiff Jatonya Clayborn Muldrow was a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. Her duties included investigating corruption and human trafficking cases and overseeing the Gang and Gun Crimes Unit. Muldrow also served as a Task Force Officer with the FBI, which allowed her access to FBI materials, a take-home vehicle, and additional authority to conduct investigations outside of St. Louis.

In 2017, after a change in Department leadership, the new commander transferred Muldrow, against her wishes, out of the unit and into a uniformed position in a different district. While the former commander had given Muldrow high praise for her work, his replacement allegedly preferred to assign a male officer in her position, noting in his deposition that the work could be “very dangerous.” While Muldrow retained her rank and pay, her new responsibilities included supervising neighborhood patrol officers, reviewing and approving arrests, and handling other administrative matters. Because she no longer served as a Task Force Officer, Muldrow was forced to surrender her FBI credentials and take-home vehicle. Further, she claimed, she lost the opportunities, perks, and prestige that were associated with her previous position.

Procedural background

Muldrow filed a Title VII lawsuit against the City of St. Louis, alleging that her forced transfer out of the Intelligence Division constituted gender discrimination.

The District Court granted the City summary judgment, finding that Muldrow needed to show that the transfer caused her “’significant’ change in working conditions producing ‘material employment disadvantage’” with respect to the terms or conditions of her employment. Because the transfer did not impact Muldrow’s salary or rank, and she did not provide evidence that it had harmed her career prospects, the court found that she had not met the requisite standard for harm. Being required to work a rotating schedule (including weekends) and the loss of Muldrow’s take-home vehicle were instead found to be “minor alterations of employment, rather than material harms.”

The US Court of Appeals for the Eighth Circuit affirmed the District Court’s judgment, emphasizing that Muldrow failed to make a showing that the transfer caused a “materially significant disadvantage” because, among other reasons, she maintained the same title, salary, and benefits, and experienced only an “insufficient” change in job responsibilities.

The US Supreme Court granted certiorari to resolve a circuit split on whether an employee challenging a job transfer under Title VII must meet a “heightened threshold of harm – be it dubbed significant, serious, or something similar.”

The City presented three arguments for maintaining a “significance” standard, rooted in text, precedent, and policy. In a majority opinion authored by Justice Elena Kagan, and joined by five other justices, the Supreme Court rejected all three arguments, vacating and remanding the case for further proceedings.

First, the City presented a textual argument, predicated on Title VII’s basic prohibition that employers may not fail or refuse to hire, discharge, or “otherwise discriminate” against a person based on a protected trait. Because refusing to hire or discharge someone “causes a significant disadvantage,” the City argued that the “otherwise discriminate” prong covering transfer decisions should be read to require an equal level of harm.

The Court found this argument unpersuasive. Instead of the degree of harm, the Court ruled that the text itself provided a different shared trait: “[e]ach kind of prohibited discrimination [under Title VII] occurs by way of an employment action,” such as hiring, firing, or otherwise altering the terms or conditions of employment. With this finding, the Court concluded there was no need for a “significant-harm requirement” to be read into the text.

Next, the Court considered the City’s argument based on existing precedent. The City relied on Burlington Northern & Santa Fe Railway Co. v. White , a 2006 opinion which found that Title VII applies only when a retaliatory action is “materially adverse,” meaning that it causes “significant harm.” The City argued to the Court that the same standard of significant harm in retaliation cases should be imported into discriminatory job transfer cases.

The Court likewise dismissed this argument, noting that in White , the Court stated that the purpose of anti-retaliation laws is to prevent “those (and only those) employer actions serious enough to ‘dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Insignificant harm, or harm that does not dissuade an employee from complaining of unlawful conduct, would not fall within the scope of anti-retaliation laws. In contrast, any injury caused by discrimination based on traits such as race and sex are covered by Title VII, and the anti-discrimination provision at issue does not “distinguish[] between significant and less significant harms.” As such, the Court reaffirmed that Title VII retaliation claims still require “significant harm.”

Finally, the City presented a policy argument, asserting that doing away with a significant-injury requirement – and thereby removing a barrier to litigation – would “swamp courts and employers” with insubstantial lawsuits. The Court disagreed, noting that discrimination plaintiffs must still show injury and discriminatory intent regardless of the degree of harm alleged. The Court concluded that there were multiple ways to dispose of meritless Title VII claims and, even if the City’s policy prediction materialized, it was not the Court’s job to revise the statute drafted by Congress for a more desirable result.

In the end, the Court held that plaintiff Muldrow needed only "to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition”: in other words, some specific harm or injury respecting her employment terms or conditions that “left her worse off,” even if not “significantly so." The lower court’s judgment therefore was vacated and remanded for further proceedings.

Concurrences

Justices Thomas, Alito, and Kavanaugh all concurred in the judgment but raised various concerns with the majority’s opinion.

First, Justices Alito and Thomas opined separately that the majority’s ruling would make no practical difference in how lower courts will apply the standard moving forward. Justice Alito saw no reason for switching out “terminology the Court approves [for] the terminology it doesn’t like.” Instead, Justice Alito noted that by definition, significance is inherent in the words “harm” and “injury,” and offered that he had “no idea” how the guidance supplied in the opinion would be applied by trial courts. Justice Thomas did not read the Court of Appeals’ decision as having imposed any heightened requirement of harm, and that minor employment changes, “even unpalatable or unwelcome ones, which cause no materially significant disadvantage,” do not rise to the level of an adverse employment action.

In response to Justice Thomas’s concurrence, the majority opinion expressed the belief that the standard being announced would have real-world impact, citing fact patterns from failed Title VII matters that would have been allowed to proceed under the Muldrow standard, including:

An engineering technician assigned a new job site in a 14’ x 22’ wind tunnel;
A shipping worker reassigned to only nighttime work; and
A school principal forced into a non-school-based administrative role supervising fewer employees.

Justice Kavanaugh took issue with the Court’s new “some harm” requirement, and instead would have presumed that discrimination is itself the harm, with no separate showing of harm required separate and apart from the underlying act of discrimination. Justice Kavanaugh concluded, however, that the majority’s standard appeared to be a relatively low bar to meet and would “lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100” because additional harm of any sort would be easy to show.

Key takeaways for employers

The Supreme Court’s ruling makes Title VII claims less demanding for plaintiffs who allege discriminatory transfers. Even beyond transfers, and presumably, denial of transfers, the Court’s new standard will likely be invoked to more easily satisfy the adverse action requirement of Title VII and other anti-discrimination statutes with similar textual wording ( ie , prohibiting employers to “otherwise discriminate”).

A prima facie case of discrimination, as stated in the seminal decision of McDonnell Douglas v. Green , requires the plaintiff to (a) be a member of a protected class; (b) be qualified for the position at issue; (c) suffer an adverse employment action despite being qualified for the job; and (d) show circumstances giving rising to an inference of discrimination. In most jurisdictions to date, lateral job transfers, work reassignments, and the like generally have not been actionable under Title VII. Muldrow would seem to significantly relax (if not lower) the bar of satisfying the third prong of the above test and suggests that many more cases will move beyond summary judgment. But the final outcome will still depend on actual proof of discrimination as well as some actual harm or injury as a result of the lateral transfer (or work reassignment, etc.).

Muldrow also serves to remind employers of the importance of documenting the legitimate, non-discriminatory reasons for transfers, work reassignments and other any job-related actions. Documented proof of budgetary constraints, staffing shortages, mismatched skillsets, performance problems, behavior issues, or other legitimate bases for employment actions will become increasingly important to establish that those actions – whether they would previously have been characterized as “adverse” or not – are being made for reasons unrelated to race, sex, national origin, age, disability, or other legally protected characteristics.

For more information, please contact any of the authors or your DLA Piper relationship partner.

Related insights

Department of Labor increases minimum salary and compensation levels for overtime...

25 April 2024 . 5 minute read

California Supreme Court: Compensable “hours worked” further defined

3 April 2024 . 8 minute read

Industrials Regulatory News and Trends - April 26, 2024

26 April 2024 . 8 minute read

Related capabilities

Capabilities
Find an office

DLA Piper is global law firm operating through various separate and distinct legal entities. For further information about these entities and DLA piper's structure, please refer the Legal Notices page of this website. All rights reserved. Attorney advertising.

Share full article

Supported by

Supreme Court Acts in Cases on Transgender Rights and Excessive Force

In both cases, some of the most conservative justices signaled frustration with the court’s cautious approach to divisive issues.

By Adam Liptak

WASHINGTON — The Supreme Court on Monday let stand a transgender youth’s victory in a case on access to high school bathrooms and revived a lawsuit from the parents of a man who had died in police custody.

Both moves drew opposition from some of the court’s most conservative members. Justices Clarence Thomas and Samuel A. Alito Jr. said they would have heard the transgender case, and they, along with Justice Neil M. Gorsuch, said the court had bowed to fear of public criticism in the case on police violence.

The court’s default mode this term has often appeared to be caution, frustrating conservatives on and off the court who had hoped its six-justice majority of Republican appointees would act more boldly.

The case on transgender rights appeared to close the book on a long-running lawsuit that started in 2015, when Gavin Grimm, a transgender boy who was a student at Gloucester High School in southeastern Virginia, sued the local school board over a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.”

A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled last year that the school board’s policy violated the Constitution and a federal law.

“The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past,” Judge Henry F. Floyd wrote for the majority. “How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community.”

The Supreme Court had agreed to hear an earlier appeal in the case but dismissed it in 2017 after the Trump administration changed the federal government’s position on transgender rights. The Biden administration has since adopted policies protecting transgender students.

Last year, the Supreme Court ruled in favor of transgender rights for the first time, saying that a federal employment discrimination law applied to L.G.B.T. workers. But Justice Gorsuch, writing for the majority in that case, said the ruling did not address access to restrooms.

“We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote.

Mr. Grimm welcomed the Supreme Court’s rejection of the school board’s appeal in the case, Gloucester County School Board v. Grimm, No. 20-1163.

“I am glad that my yearslong fight to have my school see me for who I am is over,” he said. “Being forced to use the nurse’s room, a private bathroom and the girls’ room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

As is the Supreme Court’s practice, it gave no reasons for declining to hear the school board’s appeal .

In the excessive force case, Lombardo v. St. Louis, No. 20-391, the justices ordered an appeals court to take another look at a ruling in favor of police officers accused of suffocating a man by pressing on his back while he was facedown on the ground. In their petition seeking Supreme Court review , lawyers for the man’s family said the incident was reminiscent of the murder of George Floyd, the Black man whose death in Minneapolis police custody helped set off last summer’s racial justice protests.

The case started when police officers in St. Louis arrested Nicholas Gilbert, a 27-year-old homeless man, for trespassing in a condemned building and failing to appear in court for a traffic ticket. They brought him to a holding cell in a police station. Later, responding to an apparent suicide attempt, officers handcuffed and shackled Mr. Gilbert.

“Three officers held Gilbert’s limbs down at the shoulders, biceps and legs,” the Supreme Court’s unsigned opinion said. “At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying: ‘It hurts. Stop.’”

After 15 minutes of struggling, Mr. Gilbert’s breathing became abnormal. “The officers rolled Gilbert onto his side and then his back to check for a pulse,” the opinion said. “Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.”

Mr. Gilbert’s parents sued, losing in the federal appeals court in St. Louis , which ruled that the officers had not used unconstitutionally excessive force.

The Supreme Court said the appeals court may not have taken account of all of the relevant evidence.

“It is unclear whether the court thought the use of a prone restraint — no matter the kind, intensity, duration or surrounding circumstances — is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him,” the Supreme Court’s opinion said, returning the case to the appeals court to give it “the opportunity to employ an inquiry that clearly attends to the facts and circumstances.”

In dissent, Justice Alito, joined by Justices Thomas and Gorsuch, said the Supreme Court had chosen the worst of the three available options in the case. It should have, Justice Alito wrote, either denied review or agreed to hear and decide the case itself.

“The court, unfortunately, is unwilling to face up to the choice between denying the petition (and bearing the criticism that would inevitably elicit) and granting plenary review (and doing the work that would entail),” Justice Alito wrote. “I favor the latter course, but what we should not do is take the easy out that the court has chosen.”

In a third opinion on Monday, Justice Thomas, writing only for himself in connection with the court’s denial of review in a tax case involving a Colorado marijuana dispensary, said that the court’s 2005 decision upholding congressional power to prohibit local cultivation and use of marijuana warrants reconsideration . Justice Thomas had dissented from that decision, Gonzales v. Raich .

“Once comprehensive, the federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” he wrote in the new case, Standing Akimbo v. United States, No. 20-645. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

About Us History Jobs, Fellowships & Internships Annual & Financial Reports Racial Justice at NCTE Contact Us
Support NCTE
Get Updates
Press Tips for Journalists Releases

Know Your Rights

Health care.

Read Our Covid-19 Guides

See these resources for more information about your rights during COVID-19:

A Know Your Rights Guide for Transgender People Navigating COVID-19 (PDF)
Una guía para que las personas transgénero navegando la COVID-19 conozcan sus derechos (PDF)

Know Your Rights in Health Care

Federal and state laws - and, in many cases, the U.S. Constitution - prohibit discrimination in health care and insurance because you're transgender. That means that health plans aren’t allowed to exclude transition-related care, and health care providers are required to treat you with respect and according to your gender identity.

Updated October 2021

What are my rights in insurance coverage?

Federal and state law prohibits most public and private health plans from discriminating against you because you are transgender. This means, with few exceptions, that it is illegal discrimination for your health insurance plan to refuse to cover medically necessary transition-related care.

Here are some examples of illegal discrimination in insurance:

Health plans can’t have automatic or categorical exclusions of transition-related care . For example, a health plan that says that all care related to gender transition is excluded violates the law.
Health plans can’t have a categorical exclusion of a specific transition-related procedure. Excluding from coverage specific medically necessary procedures that some transgender people need is discrimination. For example, a health plan should not categorically exclude all coverage for facial feminization surgery or impose arbitrary age limits that contradict medical standards of care.
An insurance company can’t place limits on coverage for transition-related care if those limits are discriminatory . For example, an insurance company can’t automatically exclude a specific type of procedure if it covers that procedure for non-transgender people. For example, if a plan covers breast reconstruction for cancer treatment, or hormones to treat post-menopause symptoms, it cannot exclude these procedures to treat gender dysphoria.
Refusing to enroll you in a plan, cancelling your coverage, or charging higher rates because of your transgender status : An insurance company can’t treat you differently, refuse to enroll you, or limit coverage for any services because you are transgender.
Denying coverage for care typically associated with one gender : It’s illegal for an insurance company to deny you coverage for treatments typically associated with one gender based on the gender listed in the insurance company’s records or the sex you were assigned at birth. For example, if a transgender woman’s health care provider decides she needs a prostate exam, an insurance company can’t deny it because she is listed as female in her records. If her provider recommends gynecological care, coverage can’t be denied simply because she was identified as male at birth.

What should I do to get coverage for transition-related care?

Check out NCTE’s Health Coverage Guide for more information on getting the care that you need covered by your health plan.

If you do not yet have health insurance, you can visit our friends at Out2Enroll to understand your options.

Does private health insurance cover transition-related care?

It is illegal for most private insurance plans to deny coverage for medically necessary transition-related care. Your private insurance plan should provide coverage for the care that you need. However, many transgender people continue to face discriminatory denials.

To understand how to get access to the care that you need under your private insurance plan, check out NCTE’s Health Coverage Guide .

Does Medicaid cover transition-related care?

It is illegal for Medicaid plans to deny coverage for medically necessary transition-related care. Your state Medicaid plan should provide coverage for the care that you need. However, many transgender people continue to face discriminatory denials. Some states have specific guidelines on the steps you have to take to access care. You can check if your state has specific guidelines here .

To understand how to get access to the care that you need under your Medicaid plan, check out NCTE’s Navigating Insurance page.

My plan has an exclusion for transition-related care. What should I do?

There are many reasons why your plan might still have an exclusion for transition-related care in general or for a specific procedure. This does not mean that your plan will not cover your care. Sometimes plan documents are out of date, or you can ask for an exception by showing that this care is medically necessary for you.

If you get insurance through work or school, you can advocate with your employer to have the exclusion removed.

NCTE’s Health Coverage Guide has more information on how to access care and remove exclusions.

Does Medicare cover transition-related care?

It is illegal for Medicare to deny coverage for medically necessary transition-related care.

For many years, Medicare did not cover transition-related surgery due to a decades-old policy that categorized such treatment as "experimental." That exclusion was eliminated in May 2014, and there is now no national exclusion for transition-related health care under Medicare. Some local Medicare contractors have specific policies spelling out their coverage for transition-related care, as do some private Medicare Advantage plans.

To learn more about your rights on Medicare, check out NCTE’s Medicare page.

Does the Veterans Health Administration (VHA) provide transition-related care?

The Veterans Health Administration (VHA) provides coverage for some transition-related care for eligible veterans. However, VHA still has an arbitrary and medically baseless exclusion for coverage of transition-related surgery. On June 19th, The US Department of Veterans Affairs announced that they will begin the process to expand health care services available to transgender veterans to include gender confirmation surgery. Currently, the Veterans Health Administration (VHA) provides care for thousands of transgender veterans, including some transition-related medical care. We expect the rule will finalize in approximately two years.

For more information FAQs by VHA are found here.

For more information about VHA and transition-related care, check out NCTE’s VAH Veterans Health Care page.

Does TRICARE cover transition-related care?

TRICARE provides coverage for some transition-related care for family members and dependents of military personnel. However, TRICARE still has an exclusion for coverage of transition-related surgery.

What are my rights in receiving health care?

Which health providers are prohibited from discriminating against me?

Under the Affordable Care Act, it is illegal for most health providers and organizations to discriminate against you because you are transgender. The following are examples of places and programs that may be covered by the law:

Physicians’ offices
Community health clinics
Drug rehabilitation programs
Rape crisis centers
Nursing homes and assisted living facilities
Health clinics in schools and universities
Medical residency programs
Home health providers
Veterans health centers
Health services in prison or detention facilities

What types of discrimination by health care providers are prohibited by law?

Examples of discriminatory treatment prohibited by federal law include (but are not limited to):

Refusing to admit or treat you because you are transgender
Forcing you to have intrusive and unnecessary examinations because you are transgender
Refusing to provide you services that they provide to other patients because you are transgender
Refuse to treat you according to your gender identity, including by providing you access to restrooms consistent with your gender
Refusing to respect your gender identity in making room assignments
Harassing you or refusing to respond to harassment by staff or other patients
Refusing to provide counseling, medical advocacy or referrals, or other support services because you are transgender
Isolating you or depriving you of human contact in a residential treatment facility, or limiting your participation in social or recreational activities offered to others
Requiring you to participate in “conversion therapy” for the purpose of changing your gender identity
Attempting to harass, coerce, intimidate, or interfere with your ability to exercise your health care rights

What are my rights related to privacy of my health information?

The Health Insurance Portability and Accountability Act (HIPAA) requires most health care providers and health insurance plans to protect your privacy when it comes to certain information about your health or medical history. Information about your transgender status, including your diagnosis, medical history, sex assigned at birth, or anatomy, may be protected health information. Such information should not be disclosed to anyone—including family, friends, and other patients—without your consent. This information should also not be disclosed to medical staff unless there is a medically relevant reason to do so. If this information is shared for purposes of gossip or harassment, it is a violation of HIPAA.

What Can I Do If I Face Discrimination?

Seek preauthorization for care and appeal insurance denials

You shouldn’t be denied the care that you need just because you’re transgender. That's illegal.

To access transition-related care, we recommend applying for preauthorization before any procedures to understand whether your plan will cover it. You should also consider appealing insurance denials that you believe are discriminatory. We recommend you consult an attorney before filing any appeals.

Check our NCTE’s Health Coverage Guide for more information on how to get the care that you need covered.

Contact an attorney or legal organization

If you face discrimination from a health care provider or insurance company, it may be against the law. You can talk to a lawyer or a legal organization to see what your options are. A lawyer might also be able to help you resolve your problem without a lawsuit, for example by contacting your health care provider to make sure they understand their legal obligations or filing a complaint with a professional board.

While NCTE does not take clients or provide legal services or referrals, there are many other groups that may give you referrals or maintain lists of local attorneys. You can try your local legal aid or legal services organization, or national or regional organizations such as the National Center for Lesbian Rights, Lambda Legal, the Transgender Law Center, the ACLU, and others listed on our Additional Resources page and in the Trans Legal Services Network .

File discrimination complaints with state and federal agencies

Now transgender people are encouraged to report any discrimination they experience while seeking health care services. The U.S. Department of Health and Human Services has encouraged consumers who believed that a covered entity violated their civil rights may file a complaint. If you face any of ther kind of discrimination or denial of care based on your gender, disability, age, race, or national origin, or if your health care privacy was violated, you can still file a complaint with the U.S. Department of Health and Human Services, Office for Civil Rights .

Here are some other places you can file health care complaints:

Private insurance: File a complaint with your state insurance department. You can find information about your state department here: https://www.naic.org/state_web_map.htm .
Hospitals: File a complaint with the Joint Commission, which accredits most hospitals. You can find more information or submit a complaint online at http://www.jointcommission.org .
Nursing home, board and care home, or assisted living facility: Contact your local long-term care ombudsman. You can locate an ombudsman here: http://www.ltcombudsman.org/ombudsman .
HIPPA violations: file a complaint with the U.S. Department of Health and Human Services (HHS): https://www.hhs.gov/hipaa/filing-a-complaint/index.html
Federal Health Employee Benefits Program: File a complaint with the Office of Personnel Management ( [email protected] ) or the Equal Employment Opportunity Commission ( https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm ).
Veterans Health Administration: File a complaint with the Veterans Administration’s External Discrimination Complaints Program or contact a Patient Advocate at your VA Medical Center. Find out more here: http://www.va.gov/orm/ and http://www.va.gov/health/patientadvocate .
Employee health plan: File a complaint with the Equal Employment Opportunity Commission ( https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm ).
TRICARE (military health care): File a complaint with TRICARE ( http://tricare.mil/ContactUs/FileComplaint.aspx ).

Other state and local agencies: If you face discrimination, you may be able to file a complaint with your state’s human rights agency. You can find a list of state human rights agencies here: http://www.justice.gov/crt/legalinfo/stateandlocal.php .

What Laws Protect Me?

Federal protections

The Health Care Rights Law, as part of the Affordable Care Act (ACA) prohibits sex discrimination, including anti-transgender discrimination, by most health providers and insurance companies, as well as discrimination based on race, national origin, age, and disability. Under the ACA, it is illegal for most insurance companies to have exclusions of transition-related care, and it is illegal for most health providers to discriminate against transgender people, like by turning someone away or refusing to treat them according to their gender identity. On May 5th, 2021, the Biden Administration and HHS announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include:
Discrimination on the basis of sexual orientation.
Discrimination on the basis of gender identity.

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions. Now transgender people are encouraged to report any discrimination they experience while seeking health care services. The HHS has encouraged consumers who believed that a covered entity violated their civil rights may file a complaint at: https://www.hhs.gov/ocr/complaints

The Health Insurance Portability and Accountability Act (HIPAA) protects patients’ privacy when it comes to certain health information, including information related to a person’s transgender status and transition. It also gives patients the right to access, inspect, and copy their protected health information held by hospitals, clinics, and health plans.
The Americans with Disabilities Act prohibits discrimination in health care and other settings based on a disability, which may include a diagnosis of gender dyshoria.
Medicare and Medicaid regulations protect the right of hospital patients to choose their own visitors and medical decision-makers regardless of their legal relationship to the patient. This means that hospitals cannot discriminate against LGBT people or their families in visitation and in recognizing a patient’s designated decision-maker.
The Joint Commission hospital accreditation standards require hospitals to have internal policies prohibiting discrimination based on gender identity and sexual orientation.
The Nursing Home Reform Act establishes a set of nursing home residents’ rights that include the right to privacy, including in visits from friends or loved ones; the right to be free from abuse, mistreatment, and neglect; the right to choose your physician; the right to dignity and self-determination; and the right to file grievances without retaliation.

State and local nondiscrimination laws prohibit health care discrimination against transgender people in many circumstances.

A large number of states also have explicit policies that prohibit anti-transgender discrimination in private insurance and Medicaid, like exclusions of transition-related care.

California private insurance ( PPO regulation , HMO general guidelines and HMO guidelines on surgery coverage ) and Medicaid
Colorado private insurance and Medicaid
Connecticut private insurance and Medicaid
Delaware private insurance
District of Columbia private insurance and Medicaid
Hawaii private insurance and Medicaid
Illinois private insurance ( regulations and bulletin ) and Medicaid
Maine private insurance and Medicaid
Maryland private insurance and Medicaid
Massachusetts private insurance and Medicaid
Michigan Medicaid
Minnesota private insurance and Medicaid
Montana private insurance and Medicaid
Nevada private insurance and Medicaid
New Hampshire private insurance and Medicaid
New Jersey private insurance and Medicaid
New Mexico private insurance
New York private insurance ( coverage , code mismatches , updated policy ) and Medicaid ( general Medicaid policy , criteria for authorization of procedures )
Oregon private insurance and Medicaid ( general policy --refer to Guideline Note 127--and facial feminization policy )
Pennsylvania private insurance and Medicaid
Rhode Island private insurance and Medicaid
Vermont private insurance and Medicaid
Virginia private insurance
Washington State private insurance and Medicaid
Wisconsin Medicaid
Puerto Rico private insurance

Remember: Just because your state isn’t listed here doesn’t mean you’re not protected. Check out NCTE’s Health Coverage Guide for more information about getting coverage for the care that you need.

How Can I Help?

Head to NCTE’s Health Action Center to see the latest on health care and how you can help fight for transgender people’s right to get the health care they need
Share your story. If you are facing discriminatory treatment, consider sharing your story with NCTE so we can use it in advocacy efforts to advance public understanding and policy change for transgender people. If you successfully resolved a health care situation, we want to hear about that as well.

Additional Resources

Government agencies.

Department of Health and Human Services Office for Civil Rights: http://www.hhs.gov/ocr/office/index.html

Links to State and Local Human Rights Agencies: http://www.justice.gov/crt/legalinfo/stateandlocal.php

HealthCare.Gov: https://www.healthcare.gov/transgender-health-care/

Partner resources, best practices and standards of care

Creating Equal Access to Quality Health Care for Transgender Patients: Transgender-Affirming Hospital Policies, Lambda Legal, HRC, & New York Bar: http://www.lambdalegal.org/publications/fs_transgender-affirming-hospital-policies

Healthcare Equality Index, Human Rights Campaign http://www.hrc.org/campaigns/healthcare-equality-index

National Center for LGBT Health Education: http://www.lgbthealtheducation.org/

National LGBT Health Education Center’s guide to best practices for front-line health care staff
National LGBT Health Education Center’s guide to providing health care to non-binary people
National LGBT Health Education Center’s guide to making health care forms LGBT-inclusive

National Resource Center on LGBT Aging: http://www.lgbtagingcenter.org

RAD Remedy’s guide to providing competent care for trans people

Transgender Law Center’s guide to organizing community clinics

Clinical standards of care for transgender people

WPATH Standards of Care
Endocrine Society Clinical Guideline
Center for Excellence for Transgender Health

Mental Health Resources

Trans LifeLine

National suicide prevention hotline

US: 877-565-8860Canada: 877-330-6366

https://www.translifeline.org/

National Alliance on Mental Illness (NAMI)

National network of mental health care providers, as well as a provider database

http://www.nami.org/Find-Support/LGBTQ Help Line 800-950-6264

National Council for Behavioral Health

National network of community behavioral health centers, as well as a provider database

http://www.thenationalcouncil.org/

SAMHSA (Substance Abuse and Mental Health Services Administration)

A national database for local professionals and agencies that provide addiction recovery services and mental health care.

https://findtreatment.samhsa.gov/

800-662-HELP (4357)

Health provider resources

National Association of Free and Charitable Clinics (NAFC) Clinics around the United States that offer basic health care for those without insurance or experiencing homelessness. http://www.nafcclinics.org/

RAD Remedy Community-sourced list of trans-affirming healthcare providers https://www.radremedy.org/

Insurance resources

Resources to help transgender people select and enroll in insurance

https://out2enroll.org

TransHealth Health and guidance for healthcare providers, as well as a list of transaffirming health clinics in Canada, the United States, and England. http://www.trans-health.com/

Transcend Legal Transcend Legal helps people get transgender-related health care covered under insurance. https://transcendlegal.org/

TransChance Health Helps transgender people navigate health care and insurance to receive respectful, high-quality care, and get transition-related care covered

https://www.transchancehealth.org/

JustUs Health Leads the work to achieve health equity for diverse gender, sexual, and cultural communities in Minnesota, including the Trans Aging Project and a Trans Health Insurance guide https://www.justushealth.mn

Transition-related financial support

Jim Collins Foundation Financial support for transition-related expenses for people without insurance or who have been excluded by insurance http://jimcollinsfoundation.org/apply/

Point of Pride Annual Transgender Surgery Fund Provides direct financial assistance to trans folks who cannot afford their gender-affirming surgery https://pointofpride.org/annual-transgender-surgery-fund/

Community Kinship Life Surgery Scholarship Provides the trans community with assistance while having a sense of community and kinship http://cklife.org/scholarship/

Transformative Freedom Fund (Colorado) Supports the authentic selves of transgender Coloradans by removing financial barriers to transition related healthcare https://transformativefreedomfund.org/

Kentucky Health Justice Network Trans Health Advocacy Works to help Trans Kentuckians access the healthcare they need, as well as reaffirm our autonomy and community http://www.kentuckyhealthjusticenetwork.org/trans-health.html

Join Our Mailing List

The National Center for Transgender Equality and Transgender Legal Defense and Education Fund are merging. Learn more.

Election 2024
Govt + Politics
Environment
Criminal Justice
Health Care
Health Policy

Where does the Supreme Court stand on gender-affirming care bans?

The justices have yet to take up a case on whether statewide bans on transgender health care are unconstitutional. but an upcoming tennessee lawsuit could be pivotal., by: orion rummler, the 19th - may 5, 2024 12:00 pm.

Marchers walk through the French Quarter in New Orleans for Transgender Day of Visibility on Friday, March 31, 2023. (Greg LaRose/Louisiana Illuminator)

In April, when the Supreme Court allowed Idaho to enforce its ban on gender-affirming care for transgender youth, it did not address the constitutionality of such bans or debate political interventions in medical care. But as one liberal justice noted , the high court will “almost certainly have a chance to consider the entirety of this case soon.”

The Supreme Court has yet to take up a case that answers the question of whether statewide bans on gender-affirming care are unconstitutional. That question, which would have far-reaching implications for trans youth and their families across the country, is at the center of a different legal battle in Tennessee the high court may choose to hear this year. Attorneys working for LGBTQ+ rights have asked the Supreme Court to determine whether the state’s trans care ban violates the 14th Amendment’s equal protection and due process clauses.

Tennessee’s ban on the use of puberty blockers and hormone treatment for transgender minors took effect in July 2023 , after a three-judge panel on the 6th U.S. Circuit Court of Appeals made a preliminary decision in the state’s favor. Transgender youth already receiving gender-affirming care were allowed to continue it until this March — but physicians began weaning trans adolescents off of their hormone treatments last year, in order to avoid suddenly stopping care.

Attorneys with the ACLU and Lambda Legal , alongside other legal partners, filed suit later that year, and the case, L.W. v. Skrmetti , rose to the Supreme Court.

Attorneys working for LGBTQ+ rights see the potential for a Supreme Court intervention in this case as a “make or break moment.” If the conservative-majority high court agrees to take up the Tennessee lawsuit, it will either give transgender youth and their families relief and alleviate some of the hostile political pressure against trans people in the United States — or it will pave the way for more attacks and greenlight discriminatory law.

The justices have not yet decided if they will hear the case. Since February, they have repeatedly rescheduled the meeting where they would make that decision. If the Supreme Court does take up the question of whether Tennnessee’s gender-affirming care ban is unconstitutional, it would not come before the high court — at the earliest — until the next term begins in October. That’s because oral arguments for this term ended on April 30.

“We don’t have a good sense of what they’re doing here, but it does feel like even next term might be ambitious,” said Sruti Swaminathan, a Lambda Legal staff attorney focused on legal issues affecting LGBTQ+ youth, who has been working closely on the Tennessee case.

Attorneys working for LGBTQ+ rights petitioned the Supreme Court to intervene in the Skrmetti case after the full 6th Circuit ruled in September 2023 that gender-affirming care bans for trans youth in Kentucky and Tennessee must remain in place as lawsuits in those states continue.

Citing the Supreme Court case that ended the federal right to an abortion , Chief Judge Jeffrey Sutton on the 6th Circuit argued that gender-affirming care bans do not discriminate on the basis of sex. If laws restricting abortion don’t trigger heightened scrutiny — a more rigorous legal review to determine whether a law is constitutional or not — then laws restricting gender-affirming care don’t either, he wrote in the court’s decision. This line of reasoning is part of Sutton’s stance that attorneys working for LGBTQ+ rights have not made a valid constitutional challenge against gender-affirming care bans in Tennessee and Kentucky.

Swaminathan and other attorneys representing trans youth and their families believe that the high court has an obligation to weigh in to resolve conflicts between circuit courts. In their petition, they argue that the 6th Circuit is in conflict with the 8th Circuit on this question of constitutionality — in 2022, the 8th Circuit upheld a lower court order that found Arkansas’ gender-affirming care ban likely violates the 14th Amendment and discriminates on the basis of sex. LGBTQ+ rights attorneys also argue that the 6th Circuit has deepened a broader split among circuit courts on whether discrimination against transgender people triggers heightened scrutiny.

The high court is more likely to take up a case when two or more circuit courts have a split or difference in opinion. “That gave us confidence that they may consider taking our case,” Swaminathan said.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

The Supreme Court has declined to intervene on issues ranging from transgender bathroom access and school sports to whether trans people are protected under disability law . This inaction has granted wins to LGBTQ+ advocates, as the high court has repeatedly refused to disturb lower court decisions, particularly from the 4th U.S. Circuit Court of Appeals. The 4th Circuit issued two rulings last month in favor of trans rights and became the first federal appeals court to rule that state health care plans must cover gender-affirming care. With regard to that case, West Virginia plans to — and would need to — ask the Supreme Court to intercede if they want that ruling overturned.

This makes the justice’s intervention in Idaho all the more unique.

On April 15, the high court allowed Idaho to enforce its ban on trans health care against all minors in the state, except for plaintiffs in the ongoing lawsuit against the ban. The state’s law also makes it a felony for medical providers to provide gender-affirming care for trans youth.

The Supreme Court’s decision focused on whether lower courts have the authority to issue broad injunctions that keep laws from taking effect across an entire state. That was the question that brought this case to the high court; Idaho’s gender-affirming care ban was blocked from taking effect by a federal district court, so the state took that dispute all the way to the top.

Federal judges across the country have repeatedly blocked anti-LGBTQ+ laws from taking effect by granting statewide preliminary injunctions , which halt enforcement until lawsuits play out. States have responded by appealing those injunctions to circuit courts, several with success . Now, the majority-conservative Supreme Court has expressed its disapproval of such broad injunctions, with conservative justices arguing that courts should only halt laws from taking effect against individual plaintiffs, not the residents of an entire state.

Although the justices have not indicated their beliefs on transgender health care restrictions, including in their order allowing Idaho to enforce its gender-affirming care ban, a recent exchange during oral arguments for a case on emergency abortion access shows that the issue is on justices’ minds.

Supreme Court Justices Amy Coney Barrett and Neil Gorsuch linked state abortion bans with bans on gender-affirming care when asking clarifying questions about the case, which deals with whether federal law can mandate that hospitals that accept Medicare funding provide abortions in medical emergencies.

Enforcement of the Emergency Medical Treatment and Labor Act, known as EMTALA, is at the center of the case. It was passed in 1986 through the authority of Congress’ Spending Clause, which specifies how Congress can spend and allocate federal funds to states.

During oral arguments, Barrett asked whether, in another presidential administration, it would be possible for Congress to use its spending power to forbid any hospital using federal funds from performing abortions or “gender reassignment surgery.” She pointed out the potential for such a rule to go “back and forth through Spending Clause litigation in ways that would be unusual.”

Solicitor General Elizabeth Prelogar, who represents the United States in front of the high court , responded that she believes that Congress has broad power to implement such conditions under the clause, as long as it follows the appropriate rules.

Gorsuch also connected gender-affirming care bans with abortion bans in his deliberation on the reach of the Spending Clause, and in his questioning of how the justices should reconcile that potential reach with EMTALA’s requirement that the federal government not overextend its powers when it comes to medicine.

“Could the federal government essentially regulate the practice of medicine of the states through the Spending Clause? The answer, I think, is yes, Congress could prohibit gender reassignment surgeries across the nation, it could ban abortion across the nation, through the use of its Spending Clause authority, right?” he asked Prelogar.

“I think that that would be valid legislation,” Prelogar responded.

In their order allowing Idaho to enforce its gender-affirming care ban, Gorsuch, joined by Justices Samuel Alito and Clarence Thomas, warned that “lower courts would be wise to take heed” of the high court’s refusal to allow Idaho’s ban to be blocked across the state.

Chase Strangio, the attorney of record in both the Idaho and Tennessee cases, and deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project, took to social media to clarify the narrow scope of the Supreme Court’s order. It is not about transgender people and is not about whether states can ban gender-affirming care for minors, Strangio said on Instagram . The only question before the court was about how far the injunction in Idaho reaches, he said, and their order means that trans youth across the state will be kept from health care.

“This is a devastating material impact in terms of access to care more broadly in Idaho, but it is not the level of devastation that some people are suggesting, that the court has now signaled that it is constitutional for states to ban this care. That remains an ongoing subject of litigation across the country,” he said in an Instagram video.

Meanwhile, in Idaho, trans youth and their families were faced with a sudden change in whether they can access care like puberty blockers and hormone therapy .

Jenna Damron, an advocacy fellow with the ACLU based in Boise, Idaho, said that both trans adults and youth in the state are afraid about the future of their health care. “Overnight, access to these medications has now changed because of this Supreme Court ruling and that has sent the community into a sense of fear and panic and grief,” she said.

SUPPORT NEWS YOU TRUST.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our website. AP and Getty images may not be republished. Please see our republishing guidelines for use of any other photos and graphics.

Orion Rummler, The 19th

Orion Rummler is our LGBTQ+ reporter focusing on state politics, breaking news and the underreported ways that trans and queer people are marginalized. He previously covered breaking news for Axios and contributed research to “Axios on HBO.”

Gender Reassignment Discrimination – Non-Binary & Gender-Fluid Individuals

Written by Laura Kearsley

Recently, an Employment Tribunal (ET) ruled that non-binary or gender-fluid persons can fall under the protected characteristic of gender reassignment (under the Equality Act 2010 (the Act)) in the landmark case of Taylor v Jaguar Land Rover Ltd . This case represents a major development of UK employment laws.

Taylor v Jaguar Land Rover Ltd

Case background.

Rose Taylor (Claimant) was an engineer at Jaguar Land Rover (Respondent), a position she had held for almost 20 years. In 2017, she began identifying as gender fluid/non-binary (having previously presented herself as a man) and, from this point, usually dressed in women’s clothing.

As a result, she suffered harassment and discrimination from her work colleagues in the form of comments referring to her as wearing a Halloween costume and asking her if she was going to get her “bits chopped off”. Plainly such comments were offensive and unwanted. The Claimant also suffered problems regarding the use of toilet facilities and received little to no support from her managers during this time when she raised complaints about the situation.

The Respondent’s stance appeared to be that if the Claimant was not willing to name the perpetrators, there was nothing it could do to help her. On 7 th August 2017, whilst using the male toilets, the Claimant heard two colleagues talking about her. The first said “ have you seen it ?” and the other replied “ I saw “it” in the atrium ”. When the Claimant reported this to a member of the HR leadership team, that person responded by saying “ well what else would you want them to call you ?”.

The Claimant ultimately resigned from her position at the company and issued claims in the ET of discrimination on the grounds of gender reassignment and constructive unfair dismissal, namely that she had no choice but to resign due to the way she had been treated at work.

Jaguar Land Rover argued that because Ms Taylor was a gender-fluid/non-binary person, her claim could not be successful as it did not fall under the protected characteristic of gender reassignment under Section 7 of the Act – which states:

S7 (1) “ 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 ”

It is not a requirement for someone to undergo medical treatment in order to be covered by the Act. The Claimant’s legal team referred the ET to comments made in Parliament when the Act was being passed through the Commons back in 2009, in which gender reassignment was said to concern “ a personal move away from one’s birth sex in to a state of one’s choice ”.

The ET found that the Claimant did indeed have the protected characteristic of gender reassignment, as regardless of how she described herself, she was “on a journey” of transition and did not need to have arrived at the end of the (very broad) spectrum. The ET went on to conclude that the Claimant had been very badly mistreated by her work colleagues, who openly ridiculed her appearance. It noted a lack of support towards the Claimant when she had raised complaints and the Judge noted their surprise in the fact that the Respondent had sought to rely on the ‘statutory’ defence, which is where an argument is advanced that the employer took all reasonable steps to avoid the discrimination from occurring. Quite the contrary was the case here.

Whilst the Respondent had an Equal Opportunities policy, it was unable to actually produce it until the end of the ET hearing and could not evidence that staff were aware of it or had been trained on it. This was of particular concern in view of the fact with circa 50,000 staff (including agency and contractors), the Respondent was one of the biggest employers in the West Midlands with ample HR resource available to it.

ET Judge Hughes stated:

“ Having heard submissions on this point, this employment tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.

“We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again .”

The Respondent agreed to pay the Claimant £180,000 in compensation. Given that the Claimant had been able to mitigate her losses and find work quite soon after leaving the Respondent, loss of earnings only formed a moderate part of the award and the bulk comprised value for injury to feelings, aggravated damages and a 20% uplift for the Respondent’s failure to follow the ACAS Code of Practice in respect of the Claimant’s grievances.

The primary implication of this case is that S7 of the Act will likely cover those which it was thought not to previously. Whilst this is a first instance decision (and therefore not binding), an appeal is not envisaged and employers need to therefore bear in mind that there is a range of gender identities that their workers may identify as, and that they should be sensitive to these different points of the spectrum.

The case also highlights again the importance of having an appropriate equal opportunities, diversity and inclusion policy and making sure that staff are:

Aware of it and the implications of breaching it; and
Trained on it.

Seeking to protect those with the protected characteristic of gender reassignment should form part of such policies and employers should also ensure that they use the appropriate terminology and guide their staff accordingly. In addition, where complaints are raised they should clearly be dealt with sensitively and promptly.

How Nelsons can help

If you would like any advice in relation to the subjects discussed in this article, please contact a member of our Employment Team in Derby , Leicester or Nottingham on 0800 024 1976 or via our online enquiry form .

We're here to help.

Main Contact Form

Used on contact page

Name (required) *
Phone number (required) *
Nature of enquiry *
Tick to accept our privacy notice

Request a document we are storing for you

Join our mailing list to keep up to date with our latest news and events.

International edition
Australia edition
Europe edition

Gender-fluid engineer wins landmark UK discrimination case

Judge decides that there is protection for non-binary people under the Equality Act

A gender-fluid/non-binary engineer who suffered abuse and harassment at Jaguar Land Rover has won a landmark discrimination case.

Rose Taylor, who worked at the Midlands car manufacturer and changed the way she presented in 2017, has won what is believed to be the first claim of its kind.

Until now, there was uncertainty over whether Equality Act protections covered those who who fell into the category of gender fluid/non-binary.

Although the case, heard at an employment tribunal, does not technically establish a legal precedent, it is bound to be influential in similar claims.

The ruling was delivered by Employment Judge Hughes at a Birmingham tribunal earlier this week. A further hearing next month will establish what damages Taylor should be awarded.

After Taylor, who had been an engineer with Jaguar Land Rover for more than 20 years, began wearing – usually – women’s clothes, she suffered insults and abusive jokes. She said she did not receive support from the management and won her constructive dismissal claim.

Part of the argument was whether being gender fluid/non-binary was a protected characteristic under section 7 of the 2010 Equality Act. The protected characteristics covered in the act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The judge ruled that it was “clear … that gender is a spectrum” and that it was “beyond any doubt” Taylor was protected. The judge said gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

Taylor, who prefers to use the female pronoun, is now working as an engineer with another firm.

Her barrister, Robin Moira White, of Old Square Chambers, who has transitioned from male to female, said: “This is an important judgment, albeit at first instance, recognising for the first time the rights of a small number of individuals with complex gender identities.

“Once again the courts have shown themselves willing to stand up for the rights of individuals in a manner which demands respect and admiration. I pay tribute to my brave client … I see no reason why this ruling should not extend to other complex gender identities such as a-gender and genderqueer.”

White added: “I’m aware of other cases where non-binary/gender fluid individuals have suffered disadvantage in the workplace.”

Dave Williams, executive director of human resources at Jaguar Land Rover, told Forbes magazine: “On behalf of Jaguar Land Rover, I would like to apologise to Ms Taylor for the experiences she had during her employment with us. We continue to strive to improve in this area and we respect the outcome of the case.

“Jaguar Land Rover does not tolerate discrimination of any kind. We are committed to creating an environment where everyone can flourish, where our employees feel listened to, understood, supported and valued equally.”

Discrimination at work
Work & careers
Automotive industry

Case study: Fischer v London United Busways Ltd

This recent judgment provides a useful indication of how an Employment Tribunal could view the use of language and swearwords in cases of gender reassignment discrimination.

The claimant (F), was a trans woman who at the time did agency work as a bus driver for London United Busways Ltd. After 3 months, the employer terminated her engagement, following which she brought a claim under the Equality Act for direct gender reassignment discrimination.

F claimed she was treated less favourably by the employer and its employees due to her gender reassignment and cited three acts:

On 9 January 2021, another bus driver drove their bus millimetres away from F while she was walking across the bus yard, which made her feel intimidated;
On 13 January 2021, another employee referred to F as a “w***r” while she was at her allocation desk;
The employer terminated her engagement.

The employer denied that the incident on 13 January 2021 took place and asserted that the incident on 9 January 2021 was unrelated to her gender reassignment and was not intended to intimidate. The employer said that if the Tribunal found that the two incidents had occurred as F alleged, they as an employer had taken all reasonable steps to prevent their employees from doing those specific acts or anything of that description. They contended that they could not be vicariously liable for the alleged discrimination.

Finally, the employer argued their reason for terminating F’s engagement was based on her performance and costs incurred as a result of her actions rather than because of her gender reassignment.

The Employment Tribunal dismissed all three of F’s complaints of unlawful discrimination due to her gender reassignment.

In its decision, the majority of the Tribunal panel ruled that the incident on 13 January 2021 where she alleged she had been called a “w***r” had not taken place. This was due to there being insufficient evidence for the Tribunal to make such a finding. A minority of the Tribunal panel had found the incident on 13 January 2021 had taken place, primarily based on the poor credibility of one of the employer’s witnesses. The Tribunal went on to consider whether, if the incident had taken place, was the use of the word “w***r” would amount to a discriminatory act.

It was suggested by a witness for the employer that “w***r” is gender neutral. The Panel members’ own experiences were taken into account and formed a part of its Judgment. The use of the word was in their opinion a term which applied to men, whilst there are different swear words that are commonly used to insult women which carry the same connotations.

The caselaw requires the act to be sufficiently connected to the protected characteristic in question in order to be discriminatory. In its judgment, the Tribunal found that the word “w***r” and what it implies was sufficiently connected to F’s birth sex to infer discrimination. On that basis the Tribunal felt that the use of the insult would have been sufficient to establish a prima facie case of gender reassignment discrimination (had it taken place).

Swearing will almost always be highly inappropriate in most workplaces and will often be offensive. Here, a supervisor for the employer claimed that “w***r” was a gender-neutral term. This was unanimously rejected by the Tribunal’s Panel. One member went further considering it to substantially undermine the credibility of the witness’ evidence.

It is worth noting that when investigating allegations that unacceptable language has been used, the context of the language and the effect certain words can have on different people can be important. A key concern of the Tribunal was that the bus company’s employees in this case seemed to have little awareness of appropriate language, inclusive communications and interactions. The employer’s manager in particular showed a lack of knowledge when it came to language and behaviour. The employer was also not helped by the fact that their relevant policies had last been updated in 2007 and referred to out of date and superseded legislation.

If it had been established that F had been called a “w***r” then it is likely that the employer would have been found liable for discriminatory conduct. The Tribunal felt the bus company would not have been able to prove that they had taken “all reasonable steps” to prevent the discrimination from arising and so avoid liability. The out-of-date policies, inadequate inclusivity and diversity training and awareness were all features the Tribunal expected to see to enable the employer to avoid liability.

Henrietta Donnelly is a solicitor in our employment law team . Read more case studies and other articles on our employment blog .

Send message

Name (required)

Email (required)

Phone number

Organisation

Your Name (required)

Your Email (required)

Your Company(required)

Would you like to receive marketing Emails? (required) —Please choose an option— Yes please No thanks

Click here to download your file.

You can see how this popup was set up in our step-by-step guide: https://wppopupmaker.com/guides/auto-opening-announcement-popups/

Gender reassignment and identity – Lessons from recent cases

The law and best practice lack clarity on how employers can best support employees who are going through gender reassignment or have transitioned, ensuring that they avoid claims of discrimination.

The difference between gender reassignment and non-binary gender identities may require different treatment. In this article we examine both the law and a series of recent legal developments to provide guidance on how to effectively manage and prevent discrimination in the office.

The Law and Recent Developments

The law provides protection for employees under the protected characteristic of ‘gender reassignment’ but until recently there was ambiguity for the scope of protection provided to non-binary people.

Gender reassignment was previously interpreted more narrowly as being limited to an individual proposing to undergo, undergoing or having undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. Whereas the term ‘non-binary’ refers to an individual who may wish to be recognised as neither male nor female or adopt another approach. However, recent case law has extended the scope of legal protection to non-binary employees.

Equality Act 2010 (“EA10”)

Under the EA10 gender reassignment is a protected characteristic. It is unlawful for an employer to subject an employee or job applicant to discrimination (directly or indirectly), harassment or victimisation in respect of a protected characteristic. It should also be remembered that both the employer and employee may be liable when an employee harasses another.

Taylor v Jaguar Land Rover Ltd [1]

In a case widely reported in the national media, an employment tribunal found that a non-binary person was covered by the protected characteristic of gender reassignment.

Ms Taylor had worked for Jaguar for nearly 20 years but began identifying as a non-binary person. She subsequently was subjected to abuse and a lack of support from her employer. She brought a claim for harassment, direct discrimination and victimisation on the grounds of gender reassignment.

A non-binary person does not fit neatly into the EA10 definition of gender reassignment. The Tribunal recognised that it was a novel area of law but found Ms Taylor did fall within the definition of the gender reassignment as provided by the EA10. The case represents a significant shift in the law so that a greater scope of protection will be provided to non-binary individuals.

Maya Forstater v CGD Europe and others [2]

In a significant decision a Tribunal held that that a Claimant’s belief that sex was biologically immutable did not have the protected characteristic of ‘philosophical belief’ under EA10 because her view is absolutist in nature and so incompatible with human dignity and fundamental rights of others.

The Claimant was engaged as a visiting fellow at the Respondent by a consultancy agreement. She was concerned about proposed changes to the Gender Recognition Act 2004 (“GRA”) such as permitting people to self-identify their gender. She tweeted a number of times on the subject of the proposed changes and more broadly on trans issues. Staff of the Respondent raised complaints about her the tweets as they found them to be transphobic. The Claimant’s contract ended, and she was not offered a further consultancy agreement. She claimed that her gender critical views are a philosophical belief under EA10 and consequently she has been subject to direct discrimination.

The judgment applied the established criteria from Grainger [3] to determine if her belief can be considered to qualify as a “philosophical belief” under s.10 EA10. Whilst the court found that the Claimant genuinely held the belief that biological sex was immutable, it went on to find that her belief was incompatible with human dignity and so not protected by EA10. Crucially, because the core of her belief is that transwomen are men and because she would positively assert this belief it could violate others’ dignity and create an intimidating, hostile, degrading, humiliating or offensive environment for them.

Higgs v Farmor’s School [4]

In a contrasting case to Forstater , an employment tribunal found that a Christian employee’s belief that gender cannot be fluid and cannot be changed were protected beliefs under the EA10.

Mrs Higgs worked for a school as a pastoral administrator and work experience manager. It was brought to the School’s attention that Mrs Higg’s had posted on her Facebook account links to articles which criticised gender fluidity as a “perverted vision” and demonstrated prejudiced views. She was subsequently dismissed for gross misconduct on the basis of discrimination and inappropriate social media use.

Mrs Higgs brought a claim for direct discrimination and harassment in respect of the protected characteristic of religion. The Tribunal held that her various views on non-binary people were protected beliefs. The case was distinguished from Forstater as Mrs Higg’s beliefs were unlikely to result in discrimination against a trans person as there was no suggestion she would deliberately seek to offend.

However, the Tribunal concluded that there was no direct discrimination as she had not been dismissed because of her beliefs but that her actions may reasonably be perceived as homophobic and transphobic. Equally, the claim for harassment failed as the conduct of the school was not related to the protected characteristic of religion or belief.

Another notable case in a series of recent cases related to gender reassignment is that of X v Y. Where the Tribunal recognised it had made a mistake in not anonymising the parties’ names.

The claim was for unpaid wages and holiday pay but were brought out of time. The Claimant did not have legal representation and did not realise an order should be made to protect their privacy at the first hearing by anonymising the party’s names. The judgment contained highly personal information on the Claimant’s transgender identity and mental health. The Claimant had not understood the judgment would be made public in this manner and appealed the decision, seeking for parts to be redacted and their name anonymised.

The Employment Appeal Tribunal recognised that the judgment should have been anonymised to protect the Claimant but it would rarely be proportionate to delete sections of a judgement.

Lessons for Employers

1. Keeping Pace

The case of Taylor highlights how both the law and societal views are shifting and employers must ensure they are keeping pace with developments. This is even more important for public bodies to consider due to their positive legal duty to promote equality. We suggest that all organisations should regularly review and update their policies and procedures, reviewing dress codes and responding to employee concerns promptly.

Taylor also shows there is a pressing need for employers to ensure effective training is being provided to all employees so there is a greater understanding and knowledge of the experiences of non-binary and transgender employees.

Higgs serves an important reminder that within an organisation a number of different beliefs will be held by employees and an employer must be careful to respect the differing views. However, in cases of an employee displaying prejudiced behavior there is no exception on the basis of belief which would require an employer to tolerate it.

Employers should not dismiss the small acts which can help to foster an environment where a transgender or non-binary employee feels welcomed. This can extend to including pronouns in their email footer, ensuring language and communication used by employees is considerate and facilitating social events which are not exclusionary.

3. Confidentiality

In X v Y, the tribunal explicitly acknowledged the highly personal nature of gender reassignment and the pressing need to ensure the individual’s privacy is protected. Employers must endeavor to protect employee’s personal information so that the employee feels safe in the work environment and so that their personal circumstances are dealt with compassionately and not interfering with their work.

4. Balancing Beliefs

Finally, the tweets of Ms Forstater and the eventual consequences of those tweets provide a clear illustration of the ‘grey area’ where an employee’s beliefs outside of work can come into conflict with their employment. The case must be interpreted carefully as it does not seek to curb free speech and Ms Forstater would be able to continue to campaign against changes to GRA but misgendering a person involves violating the dignity of others.

Forstater also highlights the difficulty a business may experience when having to balance the rights of non-binary individuals and other employees. An example of this contentious issue is the attempt by some organisations to phase in non-gender specific toilets. This has caused consternation among some cis-gender females who feel their safe spaces are threatened. There is no clear solution, which will suit all parties but the key issue is to try to find a solution through comprehensive consultation.

Sharpe Pritchard has a number of experienced employment solicitors who can help businesses comply with the latest employment regulations and best employment practices. Please contact Julie Bann if you wish to discuss any related employment queries.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published . If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email [email protected] .

[1] ET/1304471/2018

[2] [2019] 12 WLUK 516

[3] Grainger Plc v Nicolson [2010] 2 All E.R. 253, [2009] 11 WLUK 14

[4] ET/1401264/19

[5] UKEAT/0302/18

About SP Adjudication
About SP Mediation
About SP Strategy
Complaints Handling Procedure
Corporate social responsibility
Equality and diversity
Our Mission, Vision and Values
Pricing and frameworks
Sustainability and Net Zero
Commercial contracts
Intellectual property
Outsourcing and Shared Services
Construction contracts
Construction disputes resolution, including adjudication
Corporate Law
Data, Privacy and Information Law
Enterprise Resource Planning (ERP)
Employment Tribunal Fees Information
Supreme Court and Privy Councils
Criminal Prosecutions
Procurement challenges
Judicial review
Emergency Injunctions
Housing Litigation
Public Inquiries
Advertising Law
Infrastructure authorisation
Parliamentary
Electoral Law
Acquisitions and disposals
Landlord and Tenant
Compulsory Purchase
Regeneration and Development
Planning applications and agreements
Planning enforcement, appeals and disputes
Environmental law
Telecommunications Advisory Service
Social Housing
Subsidy Control
Telecommunications
Green Goals
Central government
Corporate clients
Education providers
Emergency services
Energy sector
Housing sector
Care Contract Restructuring
Transport sector
Waste sector
Water sector
Adjudication 101
JCT 101: Common Scenarios Solved
The R-EV-OLUTION
Latest news and blog
Our Favourite Buildings
Press Releases
Sharpe publications
Short and Sharpe
Life at Sharpe Pritchard
View our Vacancies
What our team says
Us in numbers
Trainees and Apprentices
020 7405 4600

02074940118
[email protected]

Gender Reassignment Discrimination

Anne morris.

7 September 2020

IN THIS SECTION

As an employer, it is illegal to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.

Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination .

This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.

What is gender reassignment discrimination?

Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.

The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.

To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.

What is the law on gender reassignment discrimination?

The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised , because of one or more of the nine protected characteristics , where gender reassignment is one of these.

All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.

To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.

Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.

What employment protections do transsexual employees have?

Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:

Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
Indirect discrimination : where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.

The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.

Examples of gender reassignment discrimination

Direct gender reassignment discrimination.

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.

Direct discrimination also covers the following scenarios:

Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
Discrimination by association : where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.

Indirect gender reassignment discrimination

Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.

An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.

Harassment because of gender reassignment

The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.

It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.

As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.

This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.

Victimisation because of gender reassignment

This is where someone at work is subjected to a detriment because they have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment.

A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.

What are the special protections relating to absences from work?

Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.

This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.

For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.

This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.

Can gender reassignment discrimination ever be justified?

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified , as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.

The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.

In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.

Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.

It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action .

What are the consequences of gender reassignment discrimination?

If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.

The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.

The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:

A declaration setting out the rights of the parties
An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

How can employers prevent gender reassignment discrimination?

Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.

These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.

In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR , we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts .

Gender reassignment discrimination FAQs

Gender reassignment discrimination takes place when someone is treated unfairly on the basis of their actual or proposed gender reassignment. The unfair treatment could be a one-off action or a blanket workplace rule or policy that puts a transsexual or trans person at a particular disadvantage.

What are the different types of gender reassignment discrimination?

There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.

What discrimination rights do trans employees have?

Trans employees have the right not to be treated less favourably at work, put at a disadvantage, or harassed or victimised, because they are transsexual, or perceived to be or connected with someone who is trans.

Last updated: 7 September 2020

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator , and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

Anne Morris https://www.davidsonmorris.com/author/anne/ UK Visa Fees 2024
Anne Morris https://www.davidsonmorris.com/author/anne/ British Citizenship Fees 2024
Anne Morris https://www.davidsonmorris.com/author/anne/ Guide to Travelling to the UK
Anne Morris https://www.davidsonmorris.com/author/anne/ Explore Commonwealth Visa Options

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility .

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners , we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Contact DavidsonMorris

Trending Services

DavidsonMorris Ltd t/a DavidsonMorris Solicitors is a company Registered in England & Wales No. 6183275

Regulated by the Solicitors Regulation Authority No. 542691

Registered Office: Level 30, The Leadenhall Building, 122 Leadenhall Street, London, EC3V 4AB

Website design by Prof Services Limited .

Cost of living
HR Most Influential
HR Excellence Awards
Advertising

Search menu

Millicent Machell

View articles

Transgender employee wins historic gender reassignment discrimination case

A council employee who is transgender won £25,000 in a gender reassignment discrimination tribunal after her employer took two years to change her name on its systems.

To ‘deadname' someone means to call a transgender person by their birth name when they have changed their name as part of their gender transition.

The employee, referred to as Miss AB, told Kingston council that she planned to transition eight months before she did in July 2020.

Kingston Council took two years to change the name and details of the claimant on her pension records, door pass and name on the staff directory after she transitioned.

Her work locker had a Post-It note on it with her previous name crossed out and new name written instead, an employment tribunal heard.

Read more: Tax expert awarded £100k in trans tweets tribunal

Following a dispute about street lighting that Miss AB felt was unsafe, bosses sent emails about her including derogatory language and accused her of a "hissing fit".

Following this, she was told not to have direct contact with councillors.

Miss AB’s subsequent complaints of unfair treatment and a ‘witch hunt’ against her following her transition were not investigated.

She was instead told to apologise.

The tribunal heard this had a significant impact on her mental health, leading her to take sick leave for six months before making a tribunal claim.

Miss AB was awarded £25,423 in compensation including £21,000 for injury to feelings.

Read more: Joanne Lockwood: My gender journey

Matt Jenkin, head of employment law at law firm Moorcrofts, said the case shows that dealing with gender reassignment and transgender issues in the workplace can be a complex task for employers.

He told HR magazine: “Employers should make sure that equal opportunities and anti-bullying and harassment policies are reviewed on a regular basis and kept up to date.

“In this case, the Council had failed to keep their dignity at work policy up to date in line with the Equality Act 2010.

“Secondly, employers should work with employees who transition to quickly identify how name changes should be dealt with.”

Sky employee wins discrimination case against diversity officer

LGBT+ Vodafone worker wins discrimination case

Gender-critical teacher loses unfair dismissal claim in pronouns tribunal

Manager loses dismissal case over laddish 'Nerf gun war' culture

Lawyer wins £23,000 in disability discrimination tribunal

Forstater ruling pushes employers to define discrimination

Tax expert awarded £100k in trans tweets tribunal

Commercial manager wins unfair dismissal tribunal after ‘size of a house’ comment

Updated federal workplace guidelines protect employee gender identity

In first change to the guidance in 25 years, federal agency says repeatedly misgendering employees or denying them access to a bathroom consistent with their gender identity amounts to workplace harassment

Employers who repeatedly misgender their employees or deny them access to a bathroom consistent with their gender identity are committing workplace harassment under federal anti-discrimination laws, according to a new guidance released Monday by the Equal Employment Opportunity Commission.

The changes released Monday mark the first update to the guidelines in 25 years by the federal agency. They are based on legal standards protecting employees from harassment under a protected characteristic: race, religion, color, national origin, disability, age, genetic information and sex. That last category includes pregnancy, sexual orientation and gender identity.

The document reflects legal developments in recent years, including the 2020 Supreme Court ruling Bostock v. Clayton County , Ga., which found that Title VII of the 1964 Civil Rights Act — which prohibits discrimination “because of sex” — protects gay and transgender workers.

Per the new guidelines, an employer who repeatedly and intentionally misgenders an individual by using the “name or pronoun inconsistent with the individual’s known gender identity” or by denying an employee access “to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” is committing unlawful workplace harassment. This, the guidance states, is considered sex-based discrimination under Title VII, which the EEOC says “includes harassment based on sexual orientation or gender identity, including how that identity is expressed.”

The guidance document released Monday consolidates and replaces five of the agency’s previous guidance documents issued between 1987 and 1999, which established guidelines on workplace harassment law. The document is the finalized version of a draft released at the end of last year by the EEOC that received “robust” public input, per the agency.

While the document is not legally binding, it serves as a standard for how the EEOC interprets and enforces anti-bias laws. The federal agency was created under the Civil Rights Act and is tasked with enforcing civil rights laws against workplace discrimination, investigating accusations and filing civil discrimination lawsuits on behalf of employees.

“The guidelines themselves don’t have the force of statute,” said Christopher Ho, the director of the National Origin and Immigrants’ Rights Program at Legal Aid at Work. “Unlike a law that Congress drafts and puts into writing, these don’t have the same effect — they are not legally binding. But that said, numerous courts, including the Supreme Court, have said: Because these guidelines are based on the expertise and careful reasoning of the agency that’s charged with enforcing anti-discrimination laws, they’re to be given deference by the courts.”

The guidelines, Ho noted, are “very carefully considered — they’re not out of thin air.” While the EEOC does not make policy, their guidance reflects “existing authority” applied to “the modern-day situation.”

“I think [an employer] would be very wise, taking the guidelines very seriously,” said Ho, who served on a 2016 EEOC task force on harassment.

The guidance also addresses unlawful harassment in situations involving older workers, immigrants and survivors of gender-based violence, as well as situations of harassment in virtual work environments — a result of the remote work era ushered in by the pandemic.

Charlotte A. Burrows, EEOC chair, said in a statement that the guidance “is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”

“As we commemorate this year’s 60th anniversary of the Civil Rights Act of 1964, the guidance will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it,” Burrows said.

Some Republicans were unhappy with the guidance. Rep. Virginia Foxx (R-N.C.), who chairs the House Education and Workforce Committee, said in a statement that the EEOC “has detached itself from reality.”

“Today’s final guidance is nothing more than a homage to leftist activists who want Americans to conform to their warped political ideology,” Foxx said. “From the mandated use of pronouns to a denial of biological facts, the EEOC seems more interested in appeasing the mob than undertaking commonsense policymaking to protect workers.”

The agency said in a statement that the guidance was approved by a majority vote of the five-member commission and “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.”

EEOC Commissioner Andrea Lucas released a statement expressing her disagreement with the new guidance, saying it “effectively eliminates single-sex workplace facilities and impinges on women’s (and indeed, all employees’) rights to freedom of speech and belief.”

Subhashini Bollini, the co-chair of the National Employment Lawyers Association EEOC working group, said the EEOC’s guidance is on par with the precedent set by recent legal cases. Specifically in the case of the guidance including instances of harassment in the form of misgendering or barring a transgender employee from using a bathroom that matches their gender identity, Bollini said the EEOC is applying the precedent set by Bostock.

“What the guidelines provide is, in plain language, really what these categories of harassment mean in real life,” she said.

The guidance document includes several hypothetical scenarios in which an employer’s actions would amount to workplace harassment. In one scenario, a supervisor who mocks her pregnant employee by, among other things, tracking her use of the bathroom, calling her a “heifer” and berating her work as “shoddy” and “slow” is considered to be partaking in workplace harassment. In another scenario, a supervisor who repeatedly questions a transgender employee about her gender identity and expression and also refers to her using “he/him” pronouns is also considered to be harassing their employee.

Bollini said that, while the guidelines that deal with gender identity may draw more scrutiny than others, “transgender people are employees too, they’re in our workplaces and everybody — transgender people, people of different sexual orientations, people of different races and people of different sexes, are all trying to earn a living.”

“These laws enable people to support themselves, support their families and contribute to society,” Bollini added. “So to deny that … is really saying that certain classes of people should not have those fundamental rights.”

Newsletters
Instapundit
News & Politics

Appeals Court Finds a Constitutional Right to Gender Reassignment Surgery

The 14th Amendment to the Constitution is truly a magical amendment. It was used to justify attempts to kick Donald Trump off the 2024 ballot. Through the decades, judges who want to play at social engineering have used it frequently to justify questionable law.

It's even been invoked to bypass Congress to raise the debt limit.

Now, the Fourth Circuit Court of Appeals has decided that the amendment's "equal protection" clause means that state Medicaid programs have to cover gender reassignment surgeries.

The appeals court ruled that West Virginia's Medicaid rules on mastectomies are unconstitutional because they violate the "equal protection standard" by not covering mastectomies for gender dysphoria.

Yes, really.

The ruling also includes a North Carolina Medicaid case that the state government won't cover "sex changes." The Fourth Circuit nullified the state ban on gender change surgeries, citing the 14th Amendment’s guarantee of “equal protection of the laws.”

This was a court looking for an excuse to make law.

Judge Roger Gregory who wrote the majority opinion in Kadel v. Folwell (8-6) asked, “Is removing a patient’s breasts to treat cancer the same procedure as removing a patient’s breasts to treat gender dysphoria?” He continued, “There is no case law to ground this discussion nor obvious first principles.”

Wall Street Journal:

He is undeterred, and he concludes that gender dysphoria and transgender status are intertwined, so that such insurance exclusions are nothing more than a proxy for discriminating against gender identity. Then he goes further, finding that West Virginia’s and North Carolina’s policies also unconstitutionally discriminate based on sex. How so? Imagine, Judge Gregory says, an unidentified patient seeking a vaginoplasty. Is this a biological female with a rare birth defect? Is it a transgender patient? “By virtue of the fact that they are seeking a vaginoplasty, we know that they were born without a vagina,” he writes. “But we do not know what sex they were assigned at birth. Without that information, we cannot say whether the Plan or Program will cover the surgery.” Ergo, sex discrimination.

Gregory gets even nuttier.

The differences in coverage "is rooted in a gender stereotype: the assumption that people who have been assigned female at birth are supposed to have breasts, and that people assigned male at birth are not."

It's not a "gender stereotype." It's a biological fact.

"No doubt, the majority of those assigned female at birth have breasts, and the majority of those assigned male at birth do not. But we cannot mistake what is for what must be.”

Not just a "majority." It's a universal biological fact with a tiny number of exceptions.

Treating different things differently doesn’t violate the 14th Amendment’s Equal Protection Clause, and jurists aren’t supposed to ignore the obvious. Writing in dissent at the Fourth Circuit, Judge Julius Richardson struggles to contain his exasperation. “The states,” he says, “have chosen to cover alterations of a person’s breasts or genitalia only if the person experiences physical injury, disease, or (in West Virginia) congenital absence of genitalia.” That determination does not turn on the patient’s sex or gender. “Christopher Fain—one of the plaintiffs below—received coverage for a hysterectomy based on a diagnosis unrelated to Fain’s transgender status,” the dissent says. Likewise, males with gynecomastia qualify for surgery coverage in West Virginia only “if they have physical symptoms, like breast pain,” meaning that isn’t a procedure done merely “to affirm a patient’s biological sex.”

The ruling that opened this can of worms was Bostock v. Clayton County, a case that "held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity." Now, as a dissenting judge in Kadel v. Folwell, Judge J. Harvie Wilkinson III is saying that this ruling could be a Roe v Wade ruling for the transgender community.

“This is imperial judging at its least defensible,” he says, “What plaintiffs propose is nothing less than to use the Constitution to establish a nationwide mandate that States pay for emerging gender dysphoria treatments.”

He's not wrong. But getting the ruling past this Supreme Court would be a stretch.

Rick Moran has been writing for PJ Media for 18 years. His work has appeared in dozens of media outlets including the Washington Times and ABC News. He was an editor at American Thinker for 14 years. His own blog is Right Wing Nut House . For media inquiries, please contact [email protected] .

Gender Reassignment Discrimination

Browse: Home > Gender Reassignment Discrimination

Gender reassignment discrimination

The Equality Act 2010 (‘the Act’) makes it unlawful to discriminate in employment on the grounds of gender reassignment .

How is ‘ gender reassignment’ defined under the Act?

For the purposes of the Act, ‘ gender reassignment’ covers any person who is “proposing to undergo, 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 ”.

All trans people are protected, i.e. those whose gender identity does not match the gender they were assigned at birth, and who may decide to align their life and physical identity to match their gender identity . The definition includes a man who is making the transition to being a woman and vice versa.

Guidance on the Act makes it clear that changing your gender is a personal rather than a medical process. Therefore, m edical intervention and medical processes are not required for a person to meet the definition and acquire the protection of the Act. To be protected, you need to have at least proposed to change your gender , however, this does not have to be a final decision. People who start the process but then decide not to continue can also be protected.

Transvestites are not protected if they are not also trans (i.e. cross dressing is not motivated by a desire to live with a different gender to the one they were assigned at birth). However, they may be protected if they are discriminated against because they are perceived as being trans (see ‘Direct Discrimination’ below).

If a trans employee has been diagnosed with a condition such as gender dysphoria, then they may also be protected by the disability discrimination provisions of the Act, as long as the other criteria for a disability have been met. Please see our specific page on disability discrimination for more information.

Who is covered by the Act?

The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

What is gender reassignment discrimination?

Gender reassignment discrimination is where you are treated unequally because of gender reassignment , perceived gender reassignment or the gender reassignment of someone with whom you associate. The Act has deemed that gender reassignment is a ‘protected characteristic’ and, accordingly, discrimination for this reason is unlawful.

Gender reassignment discrimination can arise in any of four ways:

Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment. Therefore, the law is designed to protect trans employees and workers during all aspects of employment. Moreover, you do not need to be employed for a particular period of time in order to bring a claim.

How easy it is to prove discrimination?

The tribunals are well aware that direct evidence of discrimination is rarely forthcoming and it is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and un-recognised prejudice of which they are unaware.

Furthermore, a discriminatory reason for your employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’.

However, the Tribunal in most cases will still have to discover what was in the mind of the alleged discriminator, and the onus of proof is on your employer to show that there was no discrimination. In every case it is crucial to enquire why an employee has received less favourable treatment, and whether it was on the grounds of race or some other reason. This may be, for example, because you were not so well qualified for the role. Save in the obvious cases, asking the crucial question of your employer will call for some consideration of the mental process of the alleged discriminator (e.g. your line manager), together with the treatment you received as a consequence.

Accordingly, as direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming, the grounds of the decision or act by your employer would have to be deduced, or inferred, from the surrounding circumstances.

Please find below more detail about the various types of discrimination:

Direct discrimination

This is perhaps the most common type and involves the less favourable treatment of others on grounds of gender reassignment . Direct discrimination also covers ‘associative discrimination’ where a person is discriminated against for associating wit h a trans person , as well as ‘discrimination by perception’ which is the unfair treatment of someone who is perceived to be trans .

For example, the Act protects trans people who choose to cross-dress as part of the process of transitioning to live as their non-birth gender. Conversely, the Act does not protect transvestites who choose to temporarily cross-dress for other reasons. However, a transvestite who is mistakenly perceived as a trans person and discriminated against because they are perceived to be a trans person, this would be discrimination by perception.

You would need to look at how an employer treats a trans employee compared to employees who live with and identify with the gender they were assigned at birth .

The defence of ‘objective justification ’ is not available for direct discrimination .

Indirect discrimination

This is the application of a rule or practice that, on the face of it, applies equally to persons who are not trans but which particularly disadvantages trans people .

An example of indirect discrimination might be where an employer implements a dress code which involves wearing tight fitting clothing, meaning that a trans employee finds it difficult to give the appearance of being the gender with which they identify . Another example might be where an employer runs an ice-breaker asking all employees to bring in childhood photos and then chastises a trans employee for not doing s o (because the employee does not want their colleagues to know that they were brought up as a different gender). It would be irrelevant that the employer does not know that the employee is trans.

Whilst these would be blanket policies, applying to all individuals regardless of gender identification, they particularly disadvantage a trans individual and therefore could give rise to a discrimination claim.

Indirect discrimination can be objectively justified; the onus is on the employer to prove that it the discrimination is a proportionate means of achieving a legitimate aim.

Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter if the harassment is intentional or unintentional.

Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.

Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.

Harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of trans-phobic jokes around the office and the use of derogatory trans-phobic terms.

Additionally, the Equality Act has deemed that the employer is potentially liable for the harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.

Gender reassignment harassment also includes sexual harassment of a trans employee ( see our specific page on sexual harassment).

Victimisation

This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment (this is known as a ‘protected act’) . There is no need to compare your treatment to an employee who has not done a ‘protected act’ .

Some common examples of gender reassignment discrimination

Gender reassignment discrimination often arises in relation to the use of single-sex facilities, such as toilets. It is generally agreed that a trans person should be free to use the facilities for the gender with which they identify, once they start to live full-time as that gender.

Another common example is when an employer treats a trans employee less favourably in relation to absences from work because of gender reassignment compared to other sickness absence. For example, if your employer refuses, without good reason, to let you have time off to undergo treatment for gender reassignment, or pays you less than you would have received if you were off sick, this is likely to amount to direct discrimination.

An other example of direct discrimination might be where a trans person is refused a promotion because of his or her gender reassignment . Other examples might include the harassment of someone because they have a trans partner or family member .

Who is liable under the Act?

Liability for gender reassignment discrimination usually lies with the employer and/or any other employee who is found to have discriminated.

Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the other employee as well as the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third-party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue against the individual employee.

Are there circumstances where gender reassignment discrimination may be lawful?

Gender reassignment discrimination may be lawful where there is an occupational requirement. Your employer would need to show that the requirement to discriminate is a ‘ proportionate means of achieving a legitimate aim ’ .

This might occur when:

In both these examples the employer would need to show that requiring the employee to be (or not be) trans is “crucial” to the role, not just one of many important factors.

There could also be Positive action. This is a voluntary measure which enables employers to provide support or encouragement to persons within a particular group if, during the last 12 months, that group has been disproportionately represented in that area of work. Employers could encourage this group to apply for jobs and even provide special training.

Overseas employment

The Act applies only to establishments in Great Britain.

Pro ving discrimination

It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’ .

This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.

Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.

It is unusual to find direct evidence of gender reassignment discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote because they are trans, the evidence may point to the possibility of discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.

If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory , it is open to the tribunal to infer that the discrimination was because of gender reassignment.

Raising a grievance

If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.

If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.

An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of gender reassignment discrimination.

• A recommendation that the employer should take certain steps to remove or reduce the discrimination.

What compensation can you claim for gender reassignment discrimination?

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes:

– loss of earnings , which can include past or future losses, unpaid holiday, bonuses, stock options or notice pay;

– an award of damages for ‘injury to feelings ‘ (see the injury to feelings compensation guidelines below) . This is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

– a personal injury , whether this is due to depression or physical injury (see below);

– aggravated damages. These are awarded in the most serious cases where the behaviour of your employer has aggravated your injury;

– punitive damages . This award is very rare and only in limited circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;

– interest , which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.

INJURY TO FEELINGS COMPENSATION GUIDELINES

The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento ” guidelines, and from 6th April 2024 they are:

TOP BAND FOR THE MOST SERIOUS CASES: £35,200- £58,700 (although it can exceed this in exceptional cases);

MIDDLE BAND: £11,700 – £35,200

LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £1,200 – £11,700

Can I also claim personal injury in the employment tribunal due to the discrimination I have received?

As mentioned above, although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.

In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.

Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:

“General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle;
“Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).

The following factors need to be taken into account when valuing claims of psychiatric injury :

a) the injured person’s ability to cope with life and work;

b) the effect on the injured person’s relationships with family, friends and those with whom he comes into contact;

c) the extent to which treatment would be successful;

d) future vulnerability;

e) prognosis;

f) whether medical help has been sought;

g) whether the injury results from sexual and/or physical abuse and/or breach of trust; and if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.

What am I unable to include as part of my discrimination claim?

You will be unable to claim for the following:

loss of reputation;
injury to feelings for each alleged act of discrimination (unless you have discriminated for more than one protected characteristic (such as race, sex, disability etc.);
an apology;
costs (usually these are not awarded should you win or lose a tribunal case).

Time limits

The Act imposes strict time limits throughout the procedure for bringing a case for gender reassignment discrimination. Good cases can be lost before they start through hesitation or delay.

If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.

The time limit for making a claim for gender reassignment discrimination to the employment tribunal is three months less one day from the last act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.

A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three-month period runs from the end of the continuing act.

Tribunals do have discretion to allow late claims to proceed, but there must be a good and exceptional reason why a claim was not made in time.

You should ideally obtain professional advice as soon as possible if you think you have a claim.

Please click here to go to the sexual harassment page

Please click here to go to the main Discrimination page

Employment Law FAQs

Contact Form

Your Name * First Last
Your Email (where we may communicate freely with you) * Enter Email Confirm Email
Your Telephone Number
How long have you worked for your present employer?
Employment Years
Employment Months
Your Message

Please confirm you have read and understood our “1 day policy”

Our "1 day policy" concerns the free legal advice service as set out on our free employment law advice page. Our one day policy says if you haven’t heard from us within 1 working day of submitting your enquiry, it means we are unable to provide the free service due to existing commitments and your details will be deleted. This provides certainty for you, so you are not left waiting. In most cases, however, we are able to let you know the same day, and often within hours if we can take your matter forward.

Yes, I confirm I have read and understood the above 1 day policy
Name This field is for validation purposes and should be left unchanged.

COMMENTS

Trans Woman's Discrimination Suit Trimmed Against Ex-Employer
Trans woman can move forward with her Title VII claims ADA claim differed from EEOC charge and can't proceed A trans woman can continue pursuing Title VII claims against her former employer for allegedly discriminating against her but can't move forward with her federal disability- and state law ...
Federal Case Law on Transgender People and Discrimination
The Trump Administration says trans people's rights are "fake news."Federal courts disagree. Over nearly two decades, numerous federal courts have ruled that federal sex discrimination laws—including the landmark Title VII employment law, the Title IX education law, the Fair Housing Act, the Equal Credit Opportunity Act, and Section 1557 of the Affordable Care Act—apply to discrimination ...
Supreme Court is under pressure to step into the debate over ...
The Supreme Court is facing intense pressure to step into the charged debate over gender-affirming care as transgender minors and their families fight with GOP states over a wave of laws passed in ...
Protections Against Employment Discrimination Based on Sexual
On June 15, 2020, the Supreme Court of the United States issued its landmark decision in the case Bostock v.Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status.
Sexual Orientation and Gender Identity (SOGI) Discrimination
In Bostock v.Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII's prohibition on discrimination because of sex. The Court reached its holding by focusing on the plain text of Title VII. As the Court explained, "discrimination based on homosexuality or ...
State health plans must cover gender-affirming surgery, US appeals
April 29 (Reuters) - Health insurance plans run by U.S. states must cover gender-affirming surgeries for transgender people, a U.S. appeals court ruled on Monday. The 8-6 opinion , opens new tab ...
Supreme Court eases the path for discriminatory transfer claims
The US Supreme Court's recent ruling in Muldrow v.City of St. Louis clarifies whether a job transfer on the basis of sex could be considered discrimination within the meaning of Title VII, even where the transfer does not cause "significant" harm to the worker.. The Court ruled on April 17, 2024, that, although employees must show some harm with respect to an identifiable term or ...
Supreme Court Acts in Cases on Transgender Rights and Excessive Force
Published June 28, 2021 Updated Sept. 30, 2021. WASHINGTON — The Supreme Court on Monday let stand a transgender youth's victory in a case on access to high school bathrooms and revived a ...
Transgender, Third Gender, No Gender: Part I
LGBT Rights. Dana Zzymm, an intersex and nonbinary US citizen, has been on a years-long quest to obtain a passport that reflects their identity by using a non-binary "X" marker in lieu of the ...
The Nineteenth Amendment and Gender Identity Discrimination
The Equality Act of 2019 would amend those provisions to add sex protections to them.) And since the 1970s, courts, litigators, and academics have been grappling with whether federal laws against sex discrimination protect transgender people from gender identity discrimination—and the question under Title VII has now reached the Supreme Court.
Examples of Court Decisions Supporting Coverage of LGBT-Related
Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire. Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000 ...
Maya Forstater: Woman wins tribunal appeal over transgender tweets
She lost her original case at a tribunal in 2019, but a High Court judge ruled her "gender-critical" beliefs fell under the Equalities Act. The appeal said the tribunal had erred in law and ...
Transgender rights in the United States
On October 16, 1976, the Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex reassignment surgery from a New Jersey school system. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, held that dress codes are permissible. "So long as [dress codes] and ...
Health Care
Federal protections. The Health Care Rights Law, as part of the Affordable Care Act (ACA) prohibits sex discrimination, including anti-transgender discrimination, by most health providers and insurance companies, as well as discrimination based on race, national origin, age, and disability.Under the ACA, it is illegal for most insurance companies to have exclusions of transition-related care ...
Where does the Supreme Court stand on gender-affirming care bans?
Citing the Supreme Court case that ended the federal right to an abortion, Chief Judge Jeffrey Sutton on the 6th Circuit argued that gender-affirming care bans do not discriminate on the basis of sex. If laws restricting abortion don't trigger heightened scrutiny — a more rigorous legal review to determine whether a law is constitutional or ...
Gender Reassignment Discrimination l Taylor v Jaguar Land Rover Ltd
Recently, an Employment Tribunal (ET) ruled that non-binary or gender-fluid persons can fall under the protected characteristic of gender reassignment (under the Equality Act 2010 (the Act)) in the landmark case of Taylor v Jaguar Land Rover Ltd . This case represents a major development of UK employment laws.
Gender reassignment discrimination
What the Equality Act says about gender reassignment discrimination. The Equality Act 2010 says that you must not be discriminated against because of gender reassignment. In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex. To be protected from gender reassignment ...
Gender Discrimination: US Supreme Court Cases
This includes discrimination due to your gender identity or sexual orientation. Gender discrimination is a type of sex discrimination. Gender refers to socially constructed characteristics of males and females. The terms "gender" and "sex" are often used interchangeably. It is illegal to treat someone unfairly or inappropriately due to their sex.
Gender-fluid engineer wins landmark UK discrimination case
The protected characteristics covered in the act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual ...
Employment Tribunal rulings on gender-critical beliefs in the workplace
The rulings also explore how protections for philosophical beliefs (under section 10 of the Act) interact in the workplace with the protections from discrimination on the basis of sex or gender reassignment under sections 7 and 11. This Insight looks at three significant recent cases and what they mean for employment law in this area.
Gender recognition and the rights of transgender people
The Gender Recognition Act 2004 (GRA) enables transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). Successful applicants, who are granted a full GRC, are, from the date of issue, considered in law to be of their acquired gender. Separate law protects people against discrimination on the ...
Employment law case study: Gender reassignment discrimination
The Employment Tribunal dismissed all three of F's complaints of unlawful discrimination due to her gender reassignment. In its decision, the majority of the Tribunal panel ruled that the incident on 13 January 2021 where she alleged she had been called a "w***r" had not taken place. This was due to there being insufficient evidence for ...
Gender reassignment and identity
The difference between gender reassignment and non-binary gender identities may require different treatment. In this article we examine both the law and a series of recent legal developments to provide guidance on how to effectively manage and prevent discrimination in the office. The Law and Recent Developments . The law provides protection ...
Gender Reassignment Discrimination
The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised, because of one or more of the nine protected characteristics, where gender reassignment is one of these. All transsexual or trans people share the common ...
Transgender employee wins historic gender reassignment discrimination case
A council employee who is transgender won £25,000 in a gender reassignment discrimination tribunal after her employer took two years to change her name on its systems. Menu. ... head of employment law at law firm Moorcrofts, said the case shows that dealing with gender reassignment and transgender issues in the workplace can be a complex task ...
Sex and gender equality law and policy: a response to Murray, Hunter
This article is a response to 'Losing Sight of Women's Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland' by Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie, published in Scottish Affairs 28(3). Murray et al. sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded ...
Updated federal workplace guidelines protect employee gender identity
This, the guidance states, is considered sex-based discrimination under Title VII, which the EEOC says "includes harassment based on sexual orientation or gender identity, including how that ...
Appeals Court Finds a Constitutional Right to Gender Reassignment
The Fourth Circuit nullified the state ban on gender change surgeries, citing the 14th Amendment's guarantee of "equal protection of the laws." This was a court looking for an excuse to make ...
Gender Reassignment Discrimination
Direct discrimination. This is perhaps the most common type and involves the less favourable treatment of others on grounds of gender reassignment.Direct discrimination also covers 'associative discrimination' where a person is discriminated against for associating wit h a trans person, as well as 'discrimination by perception' which is the unfair treatment of someone who is perceived ...
Gender critical debate: how should HR manage conflicting views?
"The biggest lesson that should be taken from these cases is that when it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights, rather than viewing their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another ...

Trans Woman’s Discrimination Suit Trimmed Against Ex-Employer

Learn more about Bloomberg Law or Log In to keep reading:

Already a subscriber?

State health plans must cover gender-affirming surgery, US appeals court rules

Read Next / Editor's Picks

Industry Insight Chevron

Supreme Court eases the path for discriminatory transfer claims

Related insights

Related capabilities

Supreme Court Acts in Cases on Transgender Rights and Excessive Force

Know Your Rights

Read Our Covid-19 Guides

Know Your Rights in Health Care

What are my rights in insurance coverage?

What are my rights in receiving health care?

What Can I Do If I Face Discrimination?

What Laws Protect Me?

How Can I Help?

Additional Resources

Partner resources, best practices and standards of care

Mental Health Resources

Health provider resources

Insurance resources

Transition-related financial support

Join Our Mailing List

Where does the Supreme Court stand on gender-affirming care bans?

Orion Rummler, The 19th

Related News

Gender Reassignment Discrimination – Non-Binary & Gender-Fluid Individuals

Taylor v Jaguar Land Rover Ltd

How Nelsons can help

Main Contact Form

Request a document we are storing for you

Gender-fluid engineer wins landmark UK discrimination case

Most viewed

Case study: Fischer v London United Busways Ltd

Send message

Gender reassignment and identity – Lessons from recent cases

The Law and Recent Developments

Equality Act 2010 (“EA10”)

Taylor v Jaguar Land Rover Ltd [1]

Maya Forstater v CGD Europe and others [2]

Higgs v Farmor’s School [4]

Lessons for Employers

Gender Reassignment Discrimination

IN THIS SECTION

What is gender reassignment discrimination?

What is the law on gender reassignment discrimination?

What employment protections do transsexual employees have?

Examples of gender reassignment discrimination

Indirect gender reassignment discrimination

Harassment because of gender reassignment

Victimisation because of gender reassignment

What are the special protections relating to absences from work?

Can gender reassignment discrimination ever be justified?

What are the consequences of gender reassignment discrimination?

How can employers prevent gender reassignment discrimination?

Need assistance?

Gender reassignment discrimination FAQs

What are the different types of gender reassignment discrimination?

What discrimination rights do trans employees have?

About DavidsonMorris

Contact DavidsonMorris

Trending Services

Search menu

Transgender employee wins historic gender reassignment discrimination case

Further reading

Sky employee wins discrimination case against diversity officer

LGBT+ Vodafone worker wins discrimination case

Gender-critical teacher loses unfair dismissal claim in pronouns tribunal

Manager loses dismissal case over laddish 'Nerf gun war' culture

Lawyer wins £23,000 in disability discrimination tribunal

Forstater ruling pushes employers to define discrimination

Tax expert awarded £100k in trans tweets tribunal

Commercial manager wins unfair dismissal tribunal after ‘size of a house’ comment

Updated federal workplace guidelines protect employee gender identity

Appeals Court Finds a Constitutional Right to Gender Reassignment Surgery

Recommended

Trending on PJ Media Videos

Gender Reassignment Discrimination