when did gender reassignment become a protected characteristic

Study at Cambridge

About the university, research at cambridge.

• Undergraduate courses
• Events and open days
• Fees and finance
• Postgraduate courses
• How to apply
• Postgraduate events
• Fees and funding
• International students
• Continuing education
• Executive and professional education
• Courses in education
• How the University and Colleges work
• Term dates and calendars
• Visiting the University
• Annual reports
• Equality and diversity
• A global university
• Public engagement
• Give to Cambridge
• For Cambridge students
• For our researchers
• Business and enterprise
• Colleges & departments
• Email & phone search
• Museums & collections
• ED&I at Cambridge
• Public Equality Duties & Protected Characteristics

Equality, Diversity & Inclusion

• Equality Reports
• ED&I at Cambridge overview
• College Equality Policies
• Combined Equality Scheme
• Equality Impact Assessments
• Equal Opportunities Policy
• Equality, Diversity & Inclusion Committee
• Gender Equality Steering Group ( GESG )
• Public Equality Duties & Protected Characteristics overview
• Gender Reassignment overview
• Guidance on Gender Reassignment for Staff overview
• What is gender reassignment
• Protections in law
• Medical or surgical procedures
• Supporting Staff
• Information records and privacy
• Access to facilities
• Bullying and harassment
• Sources of information and guidance
• Transition support checklist
• Marriage and Civil Partnership
• Pregnancy and Maternity
• Religion or Belief
• Sexual Orientation overview
• Research Resources
• Local Support Groups
• Resources for Managers
• LGB&T Glossary
• Direct Discrimination
• Indirect Discrimination
• Racial harassment
• Victimisation
• Perceptive Discrimination
• Associative Discrimination
• Third-Party Harassment
• Positive Action
• Initiatives overview
• Academic Career Pathways CV Scheme
• Being LGBTQ+ in Cambridge: A review of the experiences and support of staff at the University of Cambridge
• Faith and Belief in Practice overview
• Facilities for Reflection or Prayer
• Guidance on Religion or Belief for Staff 2013
• College Chaplaincies
• Overview of Buddhism
• Overview of Christianity
• Overview of Hinduism
• Overview of Islam
• Overview of Judaism
• Overview of Sikhism
• Directory of Faith and Belief Communities in Cambridge overview
• Church of England
• United Reformed Church and Church of Scotland
• Festival of Wellbeing
• George Bridgetower Essay Prize
• Returning Carers Fund
• Supporting Parents and Carers @ Cambridge
• The Meaning of Success
• University Diversity Fund
• UDF Successful Projects
• WiSETI overview
• Cake and Careers
• WiSETI Activities overview
• WiSETI/Schlumberger Annual Lectures overview
• Past Lectures
• Events overview
• Recorded Events
• Equality Charters overview
• Athena Swan at Cambridge
• Race Equality Charter
• Training overview
• Equality & Diversity Online Training
• Understanding Unconscious / Implicit Bias
• Networks overview
• Disabled Staff Network
• LGBTQ+ Network overview
• Advice and Support
• Promoting Respect and Dignity
• Resources & Links
• Staff Development and Benefits
• REN: Race Equality Network
• Supporting Parents and Carers @ Cambridge Network
• Women's Staff Network overview
• Support, Information and Local Women's Organisations
• Personal Development
• Advice, Help and Support
• Release Time for Staff Diversity Networks overview
• Information for staff members
• For Managers
• Resources overview
• Race Equality Week 2024 : 5th - 11th February
• COVID - Inclusion Resources

Gender Reassignment

• Equality, Diversity & Inclusion
• ED&I at Cambridge
• Public Equality Duties & Protected Characteristics
• Guidance on Gender Reassignment for Staff
• Sexual Orientation

Gender reassignment is a protected characteristic and the term refers to someone who is transgender. It includes anyone who has proposed, started or completed a process to change his or her sex. The Equality Act extends pre-existing protections for transsexual people by, for example, prohibiting indirect discrimination and removing the need for a transsexual person to be under medical supervision to benefit from legal protection. In employment, the Act also requires organisations to treat absences from work because someone proposes to undergo, is undergoing or has undergone gender reassignment in the same way or better as absences due to illness or injury.

There is limited data on the number of transgender people working or studying in the University. It is believed that there are likely to be more transgender people in higher education than in the population at large.

• A colleague who was born female decides to spend the rest of his life living as a man. He tells his departmental administrator, who makes appropriate arrangements. He then starts life at work and home as a man. After discussion with his doctor and a Gender Identity Clinic, he begins hormone treatment and several years later he has gender reassignment surgery. In this case he would be protected by the gender reassignment provisions of the Equality Act. His departmental administrator should seek guidance from the School's Human Resources Business Manager who will be able to provide support in managing the transition process.
• A student who was born physically male decides to spend the rest of her life as a woman. She starts and continues to live as a woman. As she successfully ‘passes’ as a woman, the student decides that she does not want to seek medical advice nor undergo any medical procedure/treatment. She would similarly be protected by the gender reassignment provisions of the Equality Act.

Support is provided to Transgender staff members of the University, College or associated institution through the LGBT Staff Network.

Support for Transgender Students is provided by the CUSU LBGT Campaign .

The University has produced Guidance on Gender Reassignment for Staff which provides information on good practice to support staff and institutions in implementing the University's Equal Opportunity Policy in relation to gender reassignment.

The University has produced Thinking Globally , which provides information for LGB&T staff and students working and studying at home and abroad.

Additional information and guidance is available from the Equality, Diversity and Inclusion Section.

The ECU has produced revised guidance on Trans Staff and Students in Higher Education .

The University has produced a glossary to explain terms related to gender reassignment.

Find out about Trans rights in Europe

• 20 Jun Women's Staff Network Event

View all events

© 2024 University of Cambridge

• Contact the University
• Accessibility
• Freedom of information
• Privacy policy and cookies
• Statement on Modern Slavery
• Terms and conditions
• University A-Z
• Undergraduate
• Postgraduate
• Research news
• About research at Cambridge
• Spotlight on...

An official website of the United States government

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

The site is secure. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

• Publications
• Account settings

Preview improvements coming to the PMC website in October 2024. Learn More or Try it out now .

• Advanced Search
• Journal List
• J R Soc Med
• v.110(4); 2017 Apr

Gender identity and the management of the transgender patient: a guide for non-specialists

Albert joseph.

1 Department of Primary Care and Public Health, Imperial College London, London W6 8RP, UK

Charlotte Cliffe

Miriam hillyard.

2 North West Thames Foundation School, Imperial College Healthcare NHS Trust, London W2 1NY, UK

Azeem Majeed

In this review, we introduce the topic of transgender medicine, aimed at the non-specialist clinician working in the UK. Appropriate terminology is provided alongside practical advice on how to appropriately care for transgender people. We offer a brief theoretical discussion on transgenderism and consider how it relates to broader understandings of both gender and disease. In respect to epidemiology, while it is difficult to assess the exact size of the transgender population in the UK, population surveys suggest a prevalence of between 0.2 and 0.6% in adults, with rates of referrals to gender identity clinics in the UK increasing yearly. We outline the legal framework that protects the rights of transgender people, showing that is not legal for physicians to deny transgender people access to services based on their personal beliefs. Being transgender is often, although not always, associated with gender dysphoria, a potentially disabling condition in which the discordance between a person’s natal sex (that assigned to them at birth) and gender identity results in distress, with high associated rates of self-harm, suicidality and functional impairment. We show that gender reassignment can be a safe and effective treatment for gender dysphoria with counselling, exogenous hormones and surgery being the mainstay of treatment. The role of the general practitioner in the management of transgender patients is discussed and we consider whether hormone therapy should be initiated in primary care in the absence of specialist advice, as is suggested by recent General Medical Council guidance.

Introduction

Transgender people, whose gender identities, expressions or behaviours differ from those predicted by their sex assigned at birth, are receiving increased attention both in the media and in the scientific press. Recent guidelines in the UK have proposed placing much of the responsibility of care for transgender patients on primary care physicians and their teams. 1 With waiting lists for most gender identity clinics extending beyond 12 months and increasing numbers of patients coming forward for treatment, hospital doctors are also likely to encounter transgender patients in their clinical practice.

Research in the area of transgender health is limited, but the emerging consensus is that many people identify as transgender, and that some of these individuals will suffer from an often distressing associated condition, gender dysphoria. 2 Appropriate treatment can lead to profound improvements in well-being. 2 Treatment is also largely safe and well tolerated but has some risks. 2 Transgender individuals may have unique health needs and expectations that health professionals need to be aware of to provide optimal care. In this essay, we introduce and outline this emerging field for physicians, not specialised in this area, aiming largely at a British audience but with relevance to non-specialists outside the UK.

This was a non-systematic review, utilising Google Scholar and PubMed searches to locate publications deemed to be relevant to the aims of this review, namely to provide a practical introduction to the field of transgender health for the non-specialist clinician. Both our literature search and decisions regarding what was included in the final manuscript were guided by discussions with general practitioners with experience managing transgender patients, gender identity specialists, public health professionals, academics working in the field of transgender studies and transgender patients with experience being treated in the NHS.

Terminology

It is important to know the accepted terminology when discussing gender identity and also to be aware that terms have changed throughout time and will continue to do so. A recent study of 166 medical students in the UK demonstrated a significant positive correlation between familiarity with relevant terminology and positive attitudes towards Lesbian, Gay, Bisexual, Trans, and Queer patients. 3 Further studies demonstrate improvement in attitudes towards transgender individuals amongst healthcare professionals after education, suggesting that familiarity with terminology might help overcome negative preconceptions. 4 We provide a list of terms derived from the National Centre for Transgender Equality, split based on whether they are preferred at time of writing (Box 1). 5

There is an important distinction between transgender and the Disorders of Sex Development a (alternatively known as ‘intersex’), which is a term from the Diagnostic and Statistical Manual of Mental Disorders (DSM) 5. a Intersex encompasses a range of conditions where individuals are born with sexual anatomy and/or chromosomal or hormonal patterns not fitting stereotypical definitions of ‘male’ or ‘female’. In general, transgender individuals should be referred to by the pronoun of their current identified gender rather than their assigned gender at birth. If there is any confusion, it is sensible to clarify with a simple question such as ‘which pronouns do you use?’ 2 The answer may include gender-neutral pronouns such as ‘they’ or ‘ze’ rather than ‘she’ or ‘he’.

What is transgender?

Although frequently conflated, the terms sex and gender have different meanings. Sex is defined as the anatomical, genetic or gonadal dimorphism that typically allows individuals to be placed in one of two categories, ‘male’ or ‘female’. Gender, in contrast, relates to a person’s internal experience of ‘being masculine, feminine or androgynous. Rather than a binary concept, gender identity includes gradations of masculinity to femininity ... as well as identification as neither essentially male nor female’. 6 Although related, a person’s sex and gender are distinct from their sexual orientation – whether they are sexually attracted to men, women, both, neither and so on. In the majority of cases, a newborn is assigned as ‘male’ or ‘female’ at birth and a congruent gender identity and gender role of ‘boy’ or ‘girl’ usually forms, respectively. Gender roles are a set of often-stereotyped social and behavioural norms considered appropriate for persons of a specific sex, though these vary widely between and within cultures. Debate continues on the extent to which these gender roles are socially constructed – do typical men and women actually have inbuilt genetic or physiological differences leading to dimorphic sets of behaviours and personalities, or does differing socialisation usually lead to children internalising and ‘performing’ the correct gender roles?

Terms used in the field of transgender health.

Individuals whose gender identity and expression differs from their circumscribed categories of ‘male’ and ‘female’ have clearly existed throughout temporal and sociocultural contexts, and within the field of Western medicine, the term ‘transsexual’ or ‘transvestite’ was historically used to describe such individuals. ‘Transgender’ as a noun and later an adjective first gained prominence in the early 1990s, with the rise of transgender studies, which attempted to critically analyse and give a voice to the experiences of a coherent movement of individuals struggling to overcome marginalisation and political injustice. 7 In recent years, various theories of gender identity development have been advanced, ranging from ideas about an innate ‘brain sex’ (e.g. the brain of a trans woman might show more homology with that of a natally assigned woman than a natally assigned man) 8 to proposals that for at least some transgender people, the desire to become the ‘other’ gender results from a sense of erotic gratification. 9 Notions of binary, ‘biological’ sex may also be seen as social constructions. 6 What is clear is that gender identity arises from a complex interaction of biological, social and cultural factors and its aetiology is highly contentious area.

Transgender as a ‘disorder’

Complexities in understanding transgender are reflected in the difficulties labelling and classifying it. At present Diagnostic and Statistical Manual-5 and International Classification of Diseases (ICD)-10 include ‘gender dysphoria’ and ‘gender identity disorder’, respectively, under mental health conditions. However, it is likely International Classification of Diseases-11 will reclassify gender identity disorder as a sexual disorder. 10 This represents a profound shift in perspective: the transgender person no longer suffers because of pathological mental processes leading to a desire for an altered physical or social identity. The suffering occurs because non-pathological mental processes occur in the context of the ‘wrong’ physical body and a pathological social response to that body.

Gender dysphoria is, by definition, distressing, causing social and occupational dysfunction, is associated with a significant risk of suicide and self-harm 11 and can often be treated either medically or surgically. It is for these reasons that it is labelled as a disorder. But for those calling for the ‘depsychopathologisation’ of transgender, gender variance is viewed as a normal dimension of human experience with much of the suffering experienced by transgender people originating from social perspectives. 12 For the non-specialist clinician it is worthwhile bearing in mind that it is an area where numerous perspectives are likely to be encountered. As always sensitivity, empathy and respect when dealing with transgender patients is paramount.

Epidemiology

There are only limited data on the prevalence of transgender people. There are also challenges in defining the transgender community. Legally, the transition from one gender to another is formally enshrined through completion of a gender recognition certificate and as of 2014 only 3877 of these certificates had been issued in the UK. 13 It is likely however that gender recognition certificate figures grossly underestimate the size of the transgender community in the UK. By the year 2009 it was estimated that between 5000 and 6200 people had undergone gender reassignment surgery in the UK. 14 In the past decade, numbers of gender recognition certificate applications have fallen (likely due to cost and a complex administrative process), yet referrals to gender identity clinics have soared 15 ( Figure 1 ). In population surveys, estimates of prevalence of transgender in Western populations are higher than might be expected. A survey by Reed et al. 14 estimated that 0.2% of the British population in the over-16 age group identify as transgender, although these data did not undergo peer review before publication. In a recent large telephone survey carried out in the Unites States of America, 151,456 respondents were asked ‘do you consider yourself to be transgender?’ A total of 0.53% reported identifying as transgender and, through statistical extrapolation, the authors estimated a population prevalence of 0.6% in the United States (16).

Epidemiological trends: (a) Bar chart demonstrating increased referral to gender identity clinics across the UK, 2010–2016. The data were compiled as a part of a Guardian special report; data obtained from all gender identity clinics in UK except for Aberdeen under the Freedom of Information Act (15) and (b) government statistics demonstrate an increasing proportion of female to male vs female to male requests for gender recognition certificates between years 2005 and 2014. 13

There is pronounced variation in the prevalence of transgender people based on locality. For instance, rates of attendance to gender identity clinics in Sussex per head of the population are double that compared with the rest of the country. 2 Whether this is due to differences in attitudes towards transgender individuals, or the effect of patterns of migration remains unclear. Furthermore, while estimates suggest that the median age at which individuals undergo transition is 42 years, 14 there has been a large increase in the number of referrals to child and adolescent gender identity clinics in recent years. 16 A retrospective study of transgender adults suggests that 76% (92/121) knew that their gender identity differed from their assigned gender by the time they had left primary school. 16 In the US telephone survey noted above, a greater proportion of people aged 18–24 were estimated to identify as transgender (0.66%) than those in the 25–64 (0.58%) and the over 65 (0.5%) age brackets. 17 It is possible that with increased media discussion of transgender issues, people now feel comfortable to openly identify as transgender at a younger age. It must be noted however that despite positive (Western) media attention, transgender people remain disproportionately at much higher risk of abuse, hate crime, suicide and have a lower average income than non-transgender people. 17 , 18

To address gaps in knowledge, well-conducted epidemiological research into the transgender population is needed. This research would improve the capacity of the NHS to plan services effectively according to need and also aid the transgender community’s campaign for further rights and support. One possibility would be to have information on gender identity incorporated into national statistics, so that gender identity sits alongside race, social class and age as a key measure of population variation.

Legislation

In 2004, the Gender Recognition Act 19 was passed in the UK, allowing individuals to be issued with a gender recognition certificate, legalising an individual’s change in gender from the gender they were assigned at birth. In the 2010 Equality Act, ‘gender reassignment’ was designated as a ‘protected characteristic’ and individuals are legally protected against any discrimination and harassment. 20 The NHS constitution also supports the right of individuals to seek gender reassignment without discrimination. 2 Physicians therefore do not have a legal right to deny transgender people access to services based on their own personal beliefs.

Gender reassignment – treatment options

Gender reassignment involves healthcare professionals from multiple disciplines including primary care, psychology, psychiatry, social services, endocrinology and surgery, according to the wishes of an individual patient. Gender reassignment is safe and effective for most patients but outcome studies are limited by poor follow-up and inadequate study design. 1 , 2 However, not all transgender individuals will desire all, or indeed, any of the available medical and surgical interventions.

The mainstay of pharmacological management is hormone replacement therapy. Until recently, an adult person was required to undergo a period of ‘real life experience’ where they would spend a significant time period (typically three months or more) living as their preferred gender with relevant changes to social, legal and health documents before receiving hormonal therapies. 2 During this time, they would ideally receive counselling and psychological support. In the most recent guidelines from the World Professional Association for Transgender Health, which sets global standards of care, a period of real life experience is no longer essential, 21 though it remains desirable. All that is required is a letter of support from a gender identity specialist, hence the importance for rapid referral to a gender identity clinic by general practitioner.

Hormonal therapy in gender reassignment is often referred to as ‘cross-sex hormone therapy’, 22 where estrogens are prescribed for trans women and testosterones for trans men. The forms in which these drugs can be prescribed, their effects, risk profiles and necessary monitoring investigations are outlined in Figure 2 . In some cases, it might also be necessary to block endogenous sex hormone production with a gonadotropin releasing hormone analogue. The use of a five alpha-reductase inhibitor might also be indicated in trans women to prevent androgenic pattern balding. Current evidence suggests hormone treatments in transgender patients are safe, if correct monitoring is performed and treatment is not associated with either an increased mortality or increased risk of cancer. 22 – 24 Long-term follow-up studies with large cohorts are however lacking 24 and should be the focus of future research.

Boxes demonstrating (a) the effects of cross-sex hormonal medications for trans men and women (whether these are desirable or unwanted will depend on individual patient preference), (b) risks of hormone medications, (c) recommended monitoring if cross-sex hormone medications are prescribed, 1 , 21 , 25 (d) surgical options for gender reassignment 25 and (e) non-surgical and surgical treatment options recommended for funding by the NHS. 26

It is not uncommon for transgender patients to self-medicate with unregulated and unlicensed hormonal preparations, often bought online. Uncertainties around contaminants, dosage, quality of medications and lack of monitoring make these potentially harmful. It is important to ascertain how the patient is administering these preparations and enquire about the use of sterile needles and needle sharing if applicable. 1 The General Medical Council recommends that self-medication is a reason for general practitioners to initiate hormone therapy without input from a specialist 1 (see below).

As a complement to medication, speech and language therapists might be involved and trans women/non-binary patients may also want to undergo facial and body hair removal. Electrolysis is the preferred method due to its permanence. Surgical reassignment procedures are manifold and are summarised in Figure 2(d) . 25 Many of these surgical procedures form part of the core list of therapies recommended by NHS England for public funding summarised in Figure 2(e) . 26 Additional surgical interventions, such as breast augmentation or thyroid chondroplasty, are considered on a case-by-case basis by local clinical commissioning groups. 26 General practitioners might play a role in supporting applications for surgery (normally two supporting opinions are required). As a number of procedures involve removal of gonadal tissues, collection and freeze storage of gametes prior to any surgery is recommended in some cases. 2 In the case of children and adolescents under 16, hormonal and surgical gender reassignment cannot be initiated, but hormone blocking therapy (e.g. gonadotropin releasing hormone analogues) might be used from ages 12 to 16 to stall pubertal changes while a decision is made regarding preferred gender. 2 This is likely to be an area of future ethical debate, given the controversy regarding age at which gender identity is determined. 27

Gender reassignment – the role of the general practitioner

General Medical Council guidance published in 2016 recommended that general practitioners play a key role in the care of transgender patients. 1 This includes counselling or appropriate referral (which can be done directly by general practitioners, without an interim referral to general psychiatry) but also, in some cases, the initiation and maintenance prescription of hormone therapy. If a patient is self-medicating from non-verified sources or is suicidal due to gender dysphoria, the General Medical Council and Royal College of General Practitioners argue that a primary care physician should start cross-sex hormonal therapy as a bridge treatment until the patient is seen in the specialist gender identity clinic, 1 with or without additional referral to general psychiatry. The guidance recommends general practitioners should initiate therapy if advised to do so by a specialist, provide maintenance prescriptions and ensure any screening and monitoring blood tests are carried out. 1

The British Medical Association’s General Practitioner Committee has raised concerns that the General Medical Council guidelines may force some general practitioners to prescribe beyond their level of competence, 28 while others have argued that the guidelines are appropriate given the low-risk profile of the hormone therapies. 23 In our view, it is unreasonable to require general practitioners to prescribe medications that they feel are outside their area of competence. At the same time, it is clear that gender identity clinics are currently too overstretched to adequately address the needs of transgender people in a timely fashion. Hence, NHS commissioners at both local and national level must invest in an expansion of capacity in specialist clinics so that access is improved, waiting times to see specialists reduced and specialist services have much greater ability to provide support to both non-specialist clinicians and patients.

Expanding the capacity of the NHS to manage this group of patients will also require the provision of adequate training to non-specialist physicians, including general practitioners (see e-learning module 25 ). Innovative approaches to provision of specialist advice to general practitioners in the community might also be beneficial, e.g. telephone, video or email consultation with a specialist. Further roles for general practitioners include optimising fitness before gender reassignment surgery (e.g. smoking cessation, weight loss, improving diabetic control) and ensuring successful post-operative rehabilitation while monitoring for any complications. Development of primary care-based services could be through the implementation of an optional ‘Enhanced Service’, responding locally to increased demands for service provision beyond what is required under the core general practitioner contract. The specification for such an enhanced service would need to define the role of the general practitioner, including guidance on prescribing and monitoring, as well as payment for providing the service.

At the same time, specialist clinics also need to play a greater role in supporting patients in the community. For example, one reason commonly given by specialists as to why general practitioners should prescribe for this group of patients is that they can then have their prescription dispensed at a local pharmacy. Specialists who make this argument seem unaware that hospital specialists can also issue FP10s (the prescription form used to obtain medication from a community pharmacy). 29 Furthermore, the NHS Electronic Prescription Service now makes it straightforward to send prescriptions electronically to almost any community pharmacy in England, 29 and this should make it possible for specialists to take on a greater role in long-term prescribing.

Screening in transgender patients

Transgender patients, at whatever stage of their transition, should continue to be included in appropriate national screening programmes. The best principle is to screen the target organ, not the gender. 2 This might mean a trans man (assuming he has not undergone surgery to remove the cervix) would continue to receive regular cervical smears to reduce his risk of advanced cervical cancer, or a 65-year-old trans woman would have screening for an abdominal aortic aneurysm, given that she will to retain the risk of her natal sex for developing this condition. Steps must be taken to ensure that patients are not removed from relevant recall systems after legal gender and name changes.

Although screening programmes promote health on a population level, being invited or included in screening can provoke intense dysphoria for transgender people, which may make them reluctant or unable to participate. In general, be sensitive but explicit when asking questions about gendered anatomy, genitalia or secondary sexual characteristics; if such questioning is medically necessary, explain the reasons for inquiring. The individual should be asked which healthcare professional they would prefer to perform the procedure and how it could best be adapted to their comfort. As an example, a trans man may have specific preferences about the size of speculum used for the cervical smear.

It is recommended that trans women are included in national breast cancer screening, in addition to managing the risk of prostate cancer as for natally assigned men. 30 For patients who have undergone gonadectomy or stop cross-sex hormonal therapy after a gonadectomy, bone mineral density measurements should be considered; they are also recommended for those with any additional risk factors for osteoporosis. 30 Specialist involvement might be required in certain situations, for example when hormone treatments might impact on risk profiling for conditions such as cardiovascular disease or osteoporosis. Therefore, advice from an endocrinologist may need to be sought in some cases.

Conclusions

Gender identity is a complex subject where research is lacking and preconceptions abound. Physicians from all fields should address transgender patients with acceptance, compassion and a non-judgemental approach. Formal education and training on gender identity and reassignment is needed for general practitioners, primary care trainees and clinicians from other specialties who will see an increasing number of such patients. Education can change attitudes for the better, overcome difficulty and confusion for patients and doctors alike. In the interim, innovative approaches are needed to bridge the gap in knowledge between specialist centres and primary care; specialist advice via telephone or email might be a simple but effective solution. Not only would understanding the unmet needs and concerns of transgender patients alleviate suffering for many, but it would also offer unique insights on questions relating to human identity and personality.

a Note that some prefer ‘Differences in Sex Development’ as a less stigmatising term than ‘Disorders…’ (implying that one’s self-affirmed identity is somehow defective), though this is somewhat controversial. Those who prefer the latter argue that if these variations represent mere ‘differences’ in sexual characteristics rather than ‘disorders’, there would be no need to medicalise them, and as such, no rationale or role for medical treatment.

Declarations

Competing interests.

None declared.

Ethical approval

Not applicable since neither patients nor laboratory testing was involved.

Contributorship

AJ, CC and AM conceived of the manuscript. AJ wrote the manuscript with help from CC and MH. AM reviewed the manuscript and provided some additional content.

Acknowledgements

Imperial College London is grateful for support from the NW London NIHR Collaboration for Leadership in Applied Health Research & Care, the Imperial NIHR Biomedical Research Centre, and the Imperial Centre for Patient Safety and Service Quality. The views expressed in this article are those of the authors.

Not commissioned; peer-reviewed by Iain Morland.

• Our mission, vision and values
• Advisory group
• Where sex matters
• Data and statistics
• Freedom of speech
• Legal system
• Relationships
• Schools and safeguarding
• Single-sex services
• Universities
• The Jo Phoenix case should be a wake-up call for universities
• Dispelling the suicide myth
• The government wants examples of bad guidance on single-sex services
• Sex and the NHS constitution
• Welsh parliament to debate the Cass Review
• Take action
• Submit evidence of bad guidance
• Ask your MP to read our report and call for action now
• Kickstart our next campaign
• Update your child’s school on the latest guidance
• Use School Check to find out if a school has been captured by gender-identity ideology
• Call out bad reporting on sex and gender with Bad Media Watch
• Donate to Sex Matters
• Leave us a donation in your will
• For employers and employees
• Sector networks
• For journalists
• For parents
• For service providers
• For teachers
• Campaign – sex in the Equality Act
• FAQs – sex and gender

FAQs – gender reassignment

• Groups defending sex-based rights
• Attacks on those defending sex-based rights
• Intimidation, threats and violence by trans-rights activists 
• Log of academics targeted
• Timeline of efforts to sabotage the UK’s equality watchdog
• Transactivist violence – on film
• Submissions

What does it mean for someone to have the protected characteristic of “gender reassignment” under the Equality Act 2010? The government, public bodies, many employers and even employment tribunals are often confused about this.

Having the protected characteristic of gender reassignment does not mean that someone’s sex has changed or give them the right to make other people pretend that it has. 

These FAQs cover the definition of the characteristic and who it covers – and what this means for employers and service providers. 

Download these gender reassignment FAQs as a PDF.

What is the protected characteristic of “gender reassignment”?

What does it mean to have this characteristic , who can have this characteristic , does having the protected characteristic of gender reassignment mean that a person must be treated as the opposite sex , does the equality act outlaw “misgendering”, is it harassment to “out” a person as transgender , can employers have policies which require people to refer to transgender people in particular situations in a particular way , what should employers and service providers do to avoid the risk of harassment claims , should schools have rules about “misgendering”.

The Equality Act 2010 at Section 7 defines the protected characteristic of “gender reassignment” as relating to a person who 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.”

The law refers to this as being “transsexual”. But the term more commonly used today is “transgender” or “trans”. This broadly relates to anyone at any stage of a personal process. For example:

• A man tells his employer that he is considering “transitioning” and is seeing a therapist with the potential result of being referred for medical treatment.
• A man identifies as a “transwoman” without having any surgery or treatment.
• A woman identified as a “transman” for several years and took testosterone, but has now stopped and “detransitioned”.

The Equality Act protects people from direct and indirect discrimination, harassment or victimisation in situations that are covered by the Equality Act, such as in the workplace or when receiving goods or services.

Direct discrimination

Direct discrimination is when you are treated worse than another person or other people because:

• you have a protected characteristic
• someone thinks you have that protected characteristic (known as discrimination by perception)
• you are connected to someone with that protected characteristic (known as discrimination by association).

For example: an employee tells their employer that they intend to transition. Their employer alters their role against their wishes to avoid them having contact with clients.

The comparator is a person who is materially similar in other aspects but does not have the protected characteristic (“is not trans”). 

Indirect discrimination

Indirect discrimination happens when a policy applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. This is unlawful unless the person or organisation applying the policy can show that there is a good reason for the policy. This is known as objective justification .

For example: an airport has a general policy of searching passengers according to their sex. Everyone travelling needs to follow the same security procedures and processes, but it makes transgender travellers feel uncomfortable. This could be indirect discrimination, so the airport reviews its policy and changes it so that any passenger may ask to be searched by a staff member of either sex and have a private search, out of view of other passengers. 

Harassment is unwanted behaviour connected with a protected characteristic that has the purpose or effect of violating a person’s dignity or creating a degrading, humiliating, hostile, intimidating or offensive environment.

For example: a transgender person is having a drink in a pub with friends and is referred to by the bar staff as “it” and mocked for their appearance.

Victimisation

Victimisation is when you are treated badly because you have made a complaint of gender-reassignment discrimination under the Equality Act or are supporting someone who has made a complaint of gender-reassignment discrimination. For example:

For example: a person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.

The Equality Act also provides that if a person is absent from work because of gender-reassignment treatment, their employer cannot treat them worse than they would be treated if absent for illness or injury. 

Does a person have to be under medical supervision?

No. This was explicitly removed from the definition in 2010. Gender reassignment can be a personal process. 

Must they have a gender-recognition certificate or be in the process of applying for one?

No. The protected characteristic is defined without reference to the Gender Recognition Act.

Do they have to have made a firm decision to transition? 

No. Protection against discrimination and harassment attaches to a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process).

During the passage of the Equality Act, the Solicitor General stated in Parliament: 

“Gender reassignment, as defined, is a personal process, so there is no question of having to do something medical, let alone surgical, to fit the definition. “Someone who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself.  “At what point [proposing to undergo] amounts to ‘considering undergoing’ a gender reassignment is pretty unclear. However, proposing’ suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are lots of ways in which that can be manifested – for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away. Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That too, would mean they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them.” 

In the case of Taylor v Jaguar Land Rover , a male employee told his employer that he was “gender fluid” and thought of himself as “part of a spectrum, transitioning from the male to the female gender identity”. He said to his line manager: “I have no plans for surgical transition.” He started wearing women’s clothing to work, asked to be referred to by a woman’s name and raised a question about which toilets he should use. The Employment Tribunal concluded that he was covered by the protected characteristic. 

Can children have the protected characteristic? 

Yes. In the case of AA, AK & Ors v NHS England , NHS England argued that children who are waiting for assessment by the Tavistock Gender Identity Development Service (GIDS) do not have the protected characteristic as they have not yet reached the stage of proposing to transition. The Court of Appeal rejected this argument. It noted that the definition of “gender reassignment” does not require medical intervention and can include actions such as changing “one’s name and/or how one dresses or does one’s hair”.

The court concluded:

“There is no reason of principle why a child could not satisfy the definition in s.7 provided they have taken a settled decision to adopt some aspect of the identity of the other gender.”

It noted that the decision did not have to be permanent. 

Is “Gillick competence” relevant to the protected characteristic?

No. “Gillick competence” refers to the set of criteria that are used for establishing whether a child has the capacity to provide consent for medical treatment, based on whether they have sufficient understanding and intelligence to fully understand it.

Having the protected characteristic of gender reassignment (that is, being able to bring a claim for gender-reassignment discrimination) does not depend on having any diagnosis or medical treatment. Therefore Gillick competence is not relevant to the Equality Act criteria. 

No. There is nothing in the Equality Act which means that people with the protected characteristic of “gender reassignment” need to be treated in a particular way, or differently from people without the characteristic. 

Article 9 and 10 of the European Convention of Human Rights protect the fundamental human rights of freedom of speech and freedom of belief. 

In the case of Forstater v CGDE [2021] it was established that the belief that men are male and women are female, and that this cannot change and is important, is protected under Article 9 and in relation to belief discrimination in the Equality Act. 

This means that employers and service providers must not harass or discriminate against people because they recognise that “transwomen” are men and “transmen” are women. Employers and service providers cannot require people to believe that someone has changed sex, or impose a blanket constraint on expressing their belief. 

No. “Misgendering” is not defined or outlawed by the Equality Act. 

In general, people who object to “misgendering” mean any reference to a person who identifies as transgender by words that relate to their sex. This can include using the words woman, female, madam, lady, daughter, wife, mother, she, her and so on about someone who identifies as a “transman”, or man, male, sir, gentleman, son, husband, father, he, him and so on about someone who identifies as a “transwoman”. 

Any form of words may be harassment, but this depends on the circumstances and the purpose and effect of the behaviour. Harassment is unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person.   An employment tribunal would also consider:

• that person’s perception
• the other circumstances of the case
• whether it is reasonable for the conduct to have that effect.

Tribunals have emphasised that when judging harassment context is everything, and warned against a culture of hypersensitivity to the perception of alleged victims.

Employment tribunal judgments

As Lord Justice Nicholas Underhill found in Dhellwal v Richmond Pharmacology [2009], a case decided under the Race Relations Act:

“What the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section.”

In the Forstater case, the employment appeal tribunal said that it was not proportionate to “impose a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment”. It said that:

“ Whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could amount to unlawful harassment in some circumstances, it would not always have that effect. In our judgment, it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.”

In the case of de Souza v Primark Stores [2017] , a transgender claimant who went by the name of Alexandra, but whose legal name was Alexander, was found to have been harassed by colleagues who made a point of using the male form of name when they knew he did not want them to, but not by being issued with a “new starter” badge that showed his legal name. 

In the case of Taylor v Jaguar Land Rover [2020] , a male claimant who wore women’s clothing  to work was judged to have been exposed to harassment by colleagues saying “What the hell is that?”, “So what’s going on? Are you going to have your bits chopped off?”, “Is this for Halloween?” and referring to the claimant as “it”. 

Not necessarily. 

A person can be “outed” as transgender in two different ways: 

• Their sex is commonly known and recorded, but their transsexualism is not (for example a man who cross-dresses at the weekend and is considering transitioning is “outed” at work by someone who has seen them at a social event).
• They are disappointed in the expectation of being treated as one sex when they are actually the other (for example a person who identifies as a “trans woman” is referred to as male by a woman in a changing room).

In Grant v HM Land Registry [2011] , which concerned the unwanted disclosure that an employee was gay, Lord Justice Elias found that this did not amount to harassment: 

“Furthermore, even if in fact the disclosure was unwanted, and the claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

The perception (or hope) of transgender people that they “pass” as the opposite sex is often not realistic. Their sex is not in fact hidden, but is politely ignored by some people in some situations. It is not reasonable for them to be offended by other people recognising their sex, particularly if they are seeking access to a single-sex service. Acknowledging someone’s sex, particularly where there is a good reason, is unlikely to be harassment. 

In the first-instance case of Chapman v Essex Police , a transgender police officer felt embarrassed and upset when a police control-room operator double-checked his identity over the radio because his male voice did not match the female name that the operator could see. The tribunal did not uphold a complaint of harassment, finding that the claimant was “too sensitive in the circumstances”.

Yes, but those policies must be proportionate. Employers cannot have blanket policies against “misgendering”, but can have specific policies concerning how staff should refer to transgender people in particular situations. Organisations should recognise that these policies constrain the expression of belief, and therefore they should seek to achieve their specific aims in the least intrusive way possible.

When determining whether an objection to a belief being expressed is justified, a court will undertake a balancing exercise. This test is set out in the case of Bank Mellat v HM Treasury :

• Is the objective the organisation seeks to achieve sufficiently important to justify the limitation of the right in question?
• Is the limitation rationally connected to that objective?
• Is a less intrusive limitation possible that does not undermine the achievement of the objective in question?
• Does the importance of the objective outweigh the severity of the limitation on the rights of the person concerned?

For example: 

• A company provides a specialist dress service to transsexual and transvestites. The men who use the service expect to be called “she” and “her” and referred to as Madam. It is justified for the employer to train and require staff to use this language when serving customers. 
• Staff at a full-service restaurant greet customers as “Sir” and “Madam” as they arrive. The restaurant’s policy is that staff should use the terms which appear most appropriate based on gendered appearance, and to defer to customer preference if one is expressed. This is justified by the aim of creating the service and ambience that the restaurant owners seek to provide. 
• A public body assesses claimants for medical benefits, including individuals with mental-health conditions. It directs its staff to refer to claimants using the terms which the claimants prefer, including using opposite-sex pronouns when requested, in order to make them feel comfortable. However, it recognises that in recording medical information, assessors must be able to be accurate about claimants’ sex. This is justified by the aim of providing a service that is accessible and effective for vulnerable clients. 

The case of David Mackereth v AMP and DWP concerned a doctor who lost his job undertaking claimant health assessments for the Department for Work and Pensions because he refused to comply with its policy on using claimants’ preferred pronouns. The employer’s policy was found not to have amounted to unlawful harassment or discrimination against Dr Mackereth, in the particular circumstances of his job. However, the Employment Appeal Tribunal stated that “misgendering” would not necessarily be harassment: 

“Such behaviour may well provide grounds for a complaint of discrimination or harassment but, as the EAT in Forstater made clear, that will be a fact-specific question to be determined in light of all the circumstances of the particular case.”

Relevant considerations

In Higgs v Farmor’s School [2023] Mrs Justice Eady sets out the considerations that are likely to be relevant considering whether constraining the expression of a belief (“manifestation”)  in order to avoid harassment or discrimination is justified in the context of employment. These include:

• the content of the manifestation
• the tone used
• the extent of the manifestation
• the worker’s understanding of the likely audience
• the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
• whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
• whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;
• the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients
• whether the limitation imposed is the least intrusive measure open to the employer.

Employers cannot force employees to believe that people can change sex, or prevent them expressing that lack of belief except in limited circumstances. So what should employers do to protect transgender people from harassment, and themselves from liability? 

They should have ordinary policies against bullying and harassment, including jokes, name-calling, humiliation, exclusion and singling people out for different treatment.

They should seek to avoid putting people in situations they will reasonably experience as hostile or humiliating.

Ambiguous rules put people in situations where it is reasonable to feel offended. For example, an employer provides “female” toilets, showers and changing rooms, but allows some male staff in because they identify as transgender. This creates a hostile environment: 

• female staff are surprised, shocked, humiliated and upset to find themselves sharing with a colleague of the opposite sex
• male staff members who want people to treat them as women may be challenged or face comments that are intended to intimidate, humiliate or degrade them.

This was the situation faced by the Sheffield Hospital Trust , which had a policy that transgender staff could use opposite-sex facilities. It had to deal with the fall-out when women complained about seeing a half-naked male in their changing room and the male staff member sued for harassment after being questioned about this.

Rather than putting these two groups of people together in a environment where both will reasonably feel harassed, employers should have clear rules about facilities that are single-sex, and also, where possible, provide a unisex alternative for anyone who needs it, including people who feel that they have “transitioned away from their sex” and therefore do not wish to use single-sex facilities shared with members of their own sex. The EHRC last year provided guidance on single-sex services which encouraged clear rules and policies.

It should be made clear to people who have the protected characteristic of “gender reassignment” that having this characteristic does not mean it is reasonable for them to expect others to believe or pretend to believe they have changed sex, or for them to be allowed to break (or expect to be an exception to) rules that aim to protect the dignity and privacy of others. 

If a person breaks a clear rule against entering a space provided for the opposite sex, it is not reasonable for them to feel offended when this is pointed out. 

No. It would not be lawful for schools to have a policy that forbids, punishes or denigrates pupils who use clear words about the sex of other people (such as pronouns, but also boy/girl, male/female and so on), nor to require pupils to refer to some classmates as if they were the opposite sex.

• To do so constrains the freedom of speech of pupils in a way that is unjustified and discriminates against them on the basis of belief. 
• It is inconsistent with schools’ safeguarding duty of care , and with their record-keeping responsibilities, for staff to misrepresent the sex of pupils in their records or in introducing them to their peers. 
• In order to explain and enforce sex-based rules designed to keep children safe (such as who is allowed in which showers, toilets, dormitories or sports teams), schools must be able to use clear and unequivocal language. 
• It is not reasonable to expect that a child at school, or transferring between schools, can avoid being “outed” as the sex that they are . 

We do not think that any policy which tells teachers or pupils to lie about the sex of pupils, constrains them from using clear sex-based language or treats them detrimentally if they do would pass the proportionality test. It is an unreasonable constraint on speech that is neither required nor justified in order to avoid discrimination on the basis of gender reassignment. 

Schools form part of a system that is regulated at a national level. In England that system is the responsibility of the Secretary of State for Education. It is the responsibility of the Secretary of State to make this legal situation clear across the English school system by issuing the long-awaited DfE guidance. 

Do you have a question you’d like us to answer?

• Email this page

You are using an outdated browser. Please upgrade your browser to improve your experience

• Business funding & investments
• Joint ventures & business ownership agreements
• Business exit & succession planning
• Business reorganisations
• Company law advice
• Sales, mergers & acquisitions
• Starting a business
• Fixed-price support
• Intellectual property & protection
• GDPR & data protection
• Business contracts & agreements
• Construction law
• Land development
• Sales & acquisitions
• Property finance
• Property litigation
• Agriculture & rural affairs
• Partnerships & business structures
• Agricultural tenancies
• Sales & purchases
• Renewable energy
• Employment disputes
• Difficult employees
• Redundancies & transfers
• Business immigration
• Fixed fee legal support
• Training solutions
• Contractual disputes
• Debt recovery
• Intellectual property disputes
• Partnership & shareholder disputes
• Professional negligence
• Classic car disputes
• Business structures
• Commercial issues
• Business immigration advice
• Data protection & GDPR
• Business premises
• Help for every stage of business
• Starting a relationship
• Prenuptial agreements
• Cohabitation agreements
• Ending a relationship
• Divorce or separation
• Financial issues & agreements
• Transferring a share of your property
• Freeholds & lease extensions
• Country houses, farms & estates
• Buying & selling
• Property disputes
• Creating a will
• Powers of attorney
• Court of Protection & deputyship
• Asset protection & trusts
• Protecting your business interests
• Elderly & vulnerable people
• Inheritance & trust disputes
• Recovering debt
• Negligence & contract disputes
• Senior executive severance or redundancy
• Disputes & tribunals
• Help for every stage of life
• Charities & not-for-profit organisations
• Hospitality & leisure
• Manufacturing & engineering
• Professional practices
• Sports & media
• Why Willans
• Cheltenham head office
• Legal & regulatory info
• Charity & community
• Case studies
• Knowledge hub
• Insights & thinking
• Events & training
• Webinars on catch-up
• Your Life & the Law
• Employment Law Dispatches
• Legal guides
• Our brochure
• Cheltenham: +44 (0)1242 514000
• London: +44 (0)20 3362 0490
• Get in Touch

• Real estate
• Employment & business immigration
• Litigation & dispute resolution
• Global companies doing business in the UK
• Family, relationships & divorce
• Wills, trusts & probate

Let us help you

Contact one of our experts below to find out how we can help you. We’ll aim to respond same working day.

Straight to your inbox

Expertise and advice so you're always one step ahead - sign up to receive the latest legal updates, events & seminar news

Equality Act: gender fluid & non-binary individuals protected

The Equality Act 2010 makes it unlawful to discriminate against individuals because of their ‘protected characteristics’.

There are nine protected characteristics in total, namely: age, race, sex, sexual orientation, disability, religion or belief, marital status, maternity and pregnancy, and gender reassignment.

The Equality Act 2010 stipulates that a person has the protected characteristic of gender reassignment if the person is: “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

It requires that a person should have at least proposed to undergo gender reassignment and whilst no medical intervention is required for an individual to have the protected characteristic, it was accepted that the gender reassignment had to be permanent and longstanding (although not necessarily irrevocable) and therefore did not protect individuals who were gender fluid or non-binary.

However, this may no longer be the case following a landmark ruling at Birmingham Employment Tribunal in Taylor v Jaguar Land Rover. In this case, the tribunal found that a gender fluid engineer who suffered abuse and harassment at work was protected by the Equality Act 2010.

The employee, Rose Taylor, changed the way she presented in 2017. She began to identify as gender fluid and started to wear women’s clothes in work. When she suffered insults and abusive jokes, and struggled with toilet arrangements in the workplace, management failed to support her. She resigned as a result and claimed she suffered harassment and direct discrimination because of gender reassignment and sexual orientation. Jaguar Land Rover argued that being ‘gender fluid or non-binary’ did not fall within the definition of the protected characteristic of ‘gender reassignment’ under the Equality Act.

The judge ruled that it was “clear … that gender is a spectrum” and that it was “beyond any doubt” that being non-binary or gender fluid was covered by the protected characteristic of ‘gender reassignment’ under the Equality Act. Going further, the judge said gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

Jaguar Land Rover could appeal the decision, so it could be reversed, but we await confirmation of this. As the case of Taylor v Jaguar Land Rover was heard at an employment tribunal it does not technically establish a legal precedent, so isn’t binding, but it is bound to be influential in similar claims and the first step towards a future precedent.

This case is the first to extend the scope of protection afforded under the protected characteristic of gender reassignment under the Equality Act, but it is not the first time the protections of the Equality Act have been extended by case law.

In the case of Tirkey v Chandok and another, the Employment Appeal Tribunal confirmed that ‘caste’ could be protected by the protected characteristic of race, thus extending the scope of that protected characteristic. It serves as a reminder that equality legislation is not set in stone, and is constantly developing to accommodate and adapt to our ever changing society, and to protect those vulnerable to discrimination.

A senior associate in our employment law team, Jenny has an extensive track record in advising businesses ranging from SMEs to multinational organisations, on the full range of employment-related matters – including TUPE, contractual issues and defending employee relations.

News & insights

Related services

Share this article, resources to help, related articles, mental health & the equality act: tips for employers.

During Mental Health Awareness Week, employers may be thinking about things they can do to support employees suffering with their mental health. Besides the general duty of care that employers…

Jenny Hawrot LLB (Hons)

Employment law changes: a 2024 update

Our employment law & business immigration team have put together a useful timeline to help you and your business keep on top of developments throughout the year. For several years,…

Klára Grmelová MGR (LLM Czech)

Navigating the future: protected beliefs in the workplace

Our employment law & business immigration experts look into the challenges employers can face surrounding protected beliefs. In the past few years, we have witnessed a significant rise in employment…

Matthew Clayton MA LLM (Cantab), CIPP/E

Privacy Overview

You are using an outdated browser. Please upgrade your browser to improve your experience.

• LinkedIn LinkedIn
• Twitter Twitter
• Facebook Facebook

‘Gender critical’ beliefs are protected philosophical beliefs

16 June 2021

The Employment Appeal Tribunal has ruled that “gender critical” beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in “gender identity” is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.

Background to the case.

Maya Forstater was a consultant for CGD Europe, a not-for-profit think tank which focuses on international development. She was a writer and researcher on sustainable development and worked for CGD from November 2016 until around October 2018, when her contract was not renewed. This was after colleagues claimed that some of her tweets about sex and gender were “transphobic”, “exclusionary or offensive” and made them feel “uncomfortable”.

Forstater brought claims in an Employment Tribunal (ET) alleging direct discrimination and harassment because of her “gender critical” beliefs. The ET held a preliminary hearing to determine whether her beliefs amounted to “philosophical beliefs” within the meaning of the Equality Act 2010. Establishing a protected philosophical belief was a necessary first step before she could argue that she had been discriminated against because of her views. If Forstater won on this point, she would still have to show that there had been discrimination in order to win her claim.

The Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. “Religion or belief” is one of the nine specified “protected characteristics”, which means it is unlawful to discriminate because of someone’s belief (or lack of belief). The list of protected characteristics also includes “sex” and “gender reassignment”.

A decision of the Employment Appeal Tribunal (EAT) in 2009 ( Grainger plc v Nicholson ) established the criteria that are relevant when deciding whether a belief qualifies for protection. The five “ Grainger criteria” include factors such as that the belief must be genuine, related to a substantial aspect of human life and attain a certain level of cogency, cohesion and importance. The fifth condition is that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Employment Tribunal decision

The ET found that Forstater’s beliefs were not protected philosophical beliefs because they failed the fifth Grainger condition, in that they were not worthy of respect in a democratic society.

Forstater’s beliefs were broadly that there are only two sexes in humans: male and female. She believed sex correlates to reproductive biology (with each sex producing either ova or sperm if everything is “working”). Women are adult human females and men are adult human males. It is impossible to change sex, which is determined at conception, but it is possible for someone to identify as of the other sex and change their legal sex by acquiring a gender recognition certificate (GRC). Forstater stated she would in most social situations seek to be polite to trans people and respect their pronouns but would not feel compelled to accept how they identified, particularly when discussing whether or not it was appropriate for trans women to access female-only spaces and services.    

The ET found that Forstater’s view was of an “absolutist” nature and incompatible with human dignity and the fundamental rights of others. It also concluded that her denial that people with a GRC were the sex to which they had transitioned and her belief that change of sex was a “legal fiction” were not beliefs worthy of respect in a democratic society.   

The ET went on to consider Forstater’s lack of belief in gender identity. A “gender identity” belief is a one that everyone has a gender which may be different from their sex at birth and which effectively trumps sex. A person with this belief therefore regards trans men as men and trans women as women. The ET found that Forstater did not have a protected lack of belief, because the Grainger criteria also had to be applied to lack of belief. It concluded that her lack of belief in gender identity necessarily involved the view that trans women were men, which failed the fifth Grainger condition.     

The EAT’s decision

Forstater appealed to the EAT, which overturned the ET’s decision and ruled that Forstater’s gender critical beliefs were protected philosophical beliefs. The EAT also affirmed that a belief in “gender identity” was a protected philosophical belief. 

The Grainger criteria were derived from various decisions on the European Convention on Human Rights (ECHR) in relation to rights to freedom of thought, conscience and religion (article 9) and freedom of expression (article 10). Having reviewed this case law, the EAT’s conclusion was that the fifth Grainger criterion set a low bar. A philosophical belief would only be excluded from the scope of protection if it was a grave violation of ECHR principles, seeking to destroy those rights. Examples might include a belief in torture or inhuman punishment, and beliefs akin to Nazism or espousing totalitarianism.

The EAT considered that Forstater’s beliefs did not get anywhere near to approaching the kind of belief that would fall completely outside protection. The fact that some people would find her beliefs offensive, shocking or disturbing did not mean they fell completely outside the scope of protection given to philosophical beliefs.

The EAT also said that the manifestation of any belief (i.e. how someone expresses or acts on their belief) should not be a focus at the stage of deciding whether the Grainger criteria are met. At this stage, manifestation is only relevant when it is a factor in considering the Grainger criteria – for example, whether the belief is cogent and coherent. The way in which a belief is manifested may justify not granting protection at a later stage, once the threshold test has been passed.  

According to the EAT, it is not for a court to evaluate the merits of any belief and the ET had strayed into doing so. Dogmatic philosophical beliefs including those with little basis are as entitled to protection as any others.

The ET had also been wrong to consider that the fact that a trans woman held a GRC meant that Forstater could not under any circumstances to refer to her as a man. A GRC entitled the holder to recognition of the acquired gender for certain legal purposes, subject to certain exceptions. Referring to a trans person by a previous gender might amount to harassment under the Equality Act. Whether or not it does is a fact sensitive question depending upon the perception of the trans person, all the other circumstances and whether it is reasonable for the conduct to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The EAT went on to disagree with the ET’s finding that a lack of philosophical belief necessarily meant holding a positive view opposed to the belief in question. A lack of belief was merely an absence of belief and might arise from having no view on the subject at all. That lack of belief was protected irrespective of whether the Grainger criteria could be applied to it, and the EAT found it difficult to see how the criteria could be applied to a complete absence of belief. It concluded that a belief in “gender identity” is a protected philosophical belief, as is a lack of belief in it.

When considering whether gender critical beliefs were “worthy of respect in a democratic society”, the EAT said two other factors were relevant. Firstly, the fact that gender critical views were widely shared suggested they should be considered carefully and not be condemned out of hand. Secondly, the belief that sex is immutable and binary was in fact the current position under UK law.

The ET and EAT hearings were on the preliminary issue of whether Forstater’s beliefs met the threshold to qualify as protected beliefs and therefore whether she could bring a discrimination claim on grounds of belief at all. The EAT’s judgment is not a finding that she was discriminated against and is not the end of the proceedings.

The claim will now be sent back for an ET to consider whether Forstater was discriminated against or harassed because of her beliefs (or lack of them).

Implications for employers

The EAT emphasised that its judgment was not expressing any views on the merits of the transgender debate. It does not mean that trans people can be misgendered with impunity or are otherwise losing protection against discrimination.  

As a result of this decision, gender critical views and a belief in gender identity are both protected philosophical beliefs. Gender reassignment and sex are also protected characteristics. As such, anyone sharing these protected characteristics has legal protection from unlawful discrimination and harassment.

Harassment includes conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for someone else. When considering whether something has an effect, the perception of the complainant, the other circumstances and whether it is reasonable for the conduct to have that effect are taken into account.

Employers should ensure that people are not bullied, harassed or stigmatised for their beliefs, their sex or the fact that they are transgender. Because conflicting beliefs are protected, employers should be careful not to allow workers to be offensive to others, nor to allow people to be bullied because their views are unpopular, if they have a good reason for expressing them and they do so respectfully.

Examples of harassment in this context might include:

• Intentionally misgendering transgender people or “deadnaming” them by using an incorrect name.
• Calling women “TERF”, which stands for “Trans-Exclusionary Radical Feminist”, and is used as a slur against those with gender critical views, sometimes accompanied by threats of violence or abuse.
• Abusing, insulting or joking about transgender people or those with gender identity or gender critical views.

Employers should also be aware of the risks of indirect discrimination. This occurs if an employer applies a provision, criterion or practice to everyone, but which puts anyone sharing a philosophical belief at a particular disadvantage and is not a proportionate means of achieving a legitimate aim. For example, having a compulsory “pronoun” policy forcing all staff to specify pronouns would disadvantage those who did not share gender identity beliefs. Such a practice has the legitimate aim of seeking to create an inclusive environment for transgender and non-binary people, but a compulsory policy is unlikely to be a proportionate way of achieving it (although a genuinely voluntary one might be). Decisions about whether an aim is legitimate and whether conduct is proportionate are very fact-sensitive and will involve balancing rights.

Although this decision was about gender critical views, it has broader implications by confirming the low threshold that must be met for a belief to meet the fifth Grainger criterion. Provided a belief is genuine, meets a basic level of cogency and coherence, is about something substantial and is not totalitarian, it is likely to be a protected philosophical belief. Rather than focusing on this test, employers should concentrate more on whether something said or done could reasonably be seen to create an intimidating, degrading or offensive environment for others.

Forstater v CGD Europe and others – judgment available here

Related items

Related services.

• Equality & Diversity

• Skip to main content
• Skip to navigation

legislation.gov.uk

• Browse Legislation
• New Legislation
• Coronavirus Legislation
• Changes To Legislation

Search Legislation

Equality act 2010, you are here:.

• UK Public General Acts
• Table of Contents
• Previous: Part
• Next: Chapter

Print Options

What version.

• Latest available (Revised)
• Original (As enacted)

Advanced Features

• Show Geographical Extent (e.g. E ngland, W ales, S cotland and N orthern I reland)
• Show Timeline of Changes

Opening Options

• Open whole Act
• Open Act without Schedules
• Open Schedules only

More Resources

• Original: King's Printer Version
• Correction Slip - 24/02/2011

Changes over time for: Chapter 1

Alternative versions:.

• 06/07/2010 - Amendment
• 01/10/2010 - Amendment
• 25/04/2013 - Amendment
• 25/06/2013 - Amendment

Changes to legislation:

Changes to legislation.

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

• s. 40A inserted by 2023 c. 51 s. 1
• s. 120(9) inserted by 2023 c. 51 s. 2(b)
• s. 124A inserted by 2023 c. 51 s. 3

Chapter 1 E+W+S Protected characteristics

4 the protected characteristics e+w+s.

The following characteristics are protected characteristics—

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

religion or belief;

sexual orientation.

5 Age E+W+S

(1) In relation to the protected characteristic of age—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

6 Disability E+W+S

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;

(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)—

(a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and

(b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect.

Commencement Information

I1 S. 6 wholly in force; s. 6 not in force at Royal Assent see s. 216 ; s. 6(5) in force for certain purposes at 6.7.2010 by S.I. 2010/1736 , art. 2 , Sch. ; s. 6(6) in force for certain purposes at 4.8.2010 by S.I. 2010/1966 , art. 2 ; s. 6 in force at 1.10.2010 in so far as not already in force by S.I. 2010/2317 , art. 2(1)(2)(b) (with art. 15 )

7 Gender reassignment E+W+S

(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.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3) In relation to the protected characteristic of gender reassignment—

(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.

8 Marriage and civil partnership E+W+S

(1) A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

(2) In relation to the protected characteristic of marriage and civil partnership—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who is married or is a civil partner;

(b) a reference to persons who share a protected characteristic is a reference to persons who are married or are civil partners.

9 Race E+W+S

(1) Race includes—

(a) colour;

(b) nationality;

(c) ethnic or national origins.

(2) In relation to the protected characteristic of race—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.

(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.

(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.

(5) A Minister of the Crown F1 ...—

(a) [ F2 must by order ] amend this section so as to provide for caste to be an aspect of race;

(b) [ F3 may by order ] amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.

(6) The power under section 207(4)(b), in its application to subsection (5), includes power to amend this Act.

Textual Amendments

F1 Words in s. 9(5) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 97(2) , 103(2)

F2 Words in s. 9(5)(a) inserted (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 97(3) , 103(1)(i)(2)

F3 Words in s. 9(5)(b) inserted (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 97(4) , 103(1)(i)(2)

Modifications etc. (not altering text)

C1 S. 9(5) power to repeal or amend conferred (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 97(7)-(10) , 103(1)(i)(2)

10 Religion or belief E+W+S

(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

11 Sex E+W+S

In relation to the protected characteristic of sex—

(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.

12 Sexual orientation E+W+S

(1) Sexual orientation means a person's sexual orientation towards—

(a) persons of the same sex,

(b) persons of the opposite sex, or

(c) persons of either sex.

(2) In relation to the protected characteristic of sexual orientation—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.

Back to top

Options/Help

Print the whole act.

• PDF The Whole Act
• Web page The Whole Act

Print The Whole Part

• PDF The Whole Part
• Web page The Whole Part

Print This Chapter only

• PDF This Chapter only
• Web page This Chapter only

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

• Continue to open

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

You have chosen to open the Whole Act

You have chosen to open the whole act without schedules, you have chosen to open schedules only.

The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Legislation is available in different versions:

Latest Available (revised): The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Different options to open legislation in order to view more content on screen at once

Explanatory Notes

Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

• the original print PDF of the as enacted version that was used for the print copy
• lists of changes made by and/or affecting this legislation item
• confers power and blanket amendment details
• all formats of all associated documents
• correction slips
• links to related legislation and further information resources

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

Click 'View More' or select 'More Resources' tab for additional information including:

• New site design
• Accessibility
• Privacy Notice

• 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

Most viewed

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

© 2024 DLA Piper

Unsolicited e-mails and information sent to DLA Piper or the independent DLA Piper Relationship firms will not be considered confidential, may be disclosed to others, may not receive a response, and do not create a lawyer-client relationship with DLA Piper or any of the DLA Piper Relationship firms. Please do not include any confidential information in this message. Also, please note that our lawyers do not seek to practice law in any jurisdiction in which they are not properly permitted to do so.