Gender reassignment discrimination: new Acas guidance

Posted on January 24, 2025
Posted by Sparqa Legal

Acas has issued new guidance on gender reassignment discrimination. The guidance sets out what the law says, different types of discrimination, how to handle complaints, and how to prevent discrimination. This blog sets out the key takeaways from that guidance.

What is gender reassignment?

Gender reassignment refers to the process of changing sex, or ‘transitioning’.  

People who transition may be referred to as ‘transgender’ or ‘trans’. The law uses the term ‘transexual’, however many people consider this to be outdated. You should ask any employees undergoing this process which term they prefer. 

Under the Equality Act 2010, you must not discriminate against individuals on the basis of a ‘protected characteristic’, such as race, religion, age, sex and sexual orientation. Gender reassignment is one of the protected characteristics. Individuals have this protected characteristic once they propose transitioning, even if they do not have any medical treatment or surgery. They do not need a Gender Recognition Certificate to qualify. 

Intersex people (also known as people with variations in sex characteristics/development) and non-binary people may also be protected from gender reassignment discrimination. 

What is gender reassignment discrimination?

Discrimination includes direct discrimination, indirect discrimination, harassment and victimisation. 

Direct discrimination relating to gender reassignment occurs when someone is disadvantaged or treated less favourably because they are transgender, they are believed to be transgender, or they have a connection to a transgender person. 

For example, prohibiting an employee from working in a customer-facing role because they are transgender would be direct discrimination. 

Indirect discrimination occurs when a policy or practice applies to everyone but disadvantages people with a protected characteristic. 

For example, a company’s hiring policy requires a birth certificate as proof of identity. A transgender applicant does not wish to be outed to the employer and seeks to prove their identity through other documentation. If the employer refuses, this could amount to indirect discrimination. 

Harassment occurs when someone experiences unwanted behaviour related to their protected characteristic which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. 

For example, if a transgender worker is intentionally misgendered (using the wrong pronouns), this could amount to harassment. 

Victimisation occurs when someone is treated less favourably because of their involvement in a discrimination claim (eg by being labelled a troublemaker). 

How to respond to a discrimination complaint

If a staff member makes a discrimination complaint, you must take it seriously and investigate it promptly. You should also make sure that anyone accused of discrimination is treated fairly and is not discriminated against (eg on religious grounds). 

For more on how to deal with a discrimination complaint, see our Q&A here. 

How to prevent discrimination in the workplace

You should note that the prohibition on gender reassignment discrimination applies not only to employees and workers, but also to contractors, job applicants and former employees. 

There are many measures you can take to prevent gender reassignment discrimination, including supporting transitioning staff members, reviewing your policies and considering what matters particularly affect transgender staff. While small businesses may not be able to take all possible measures due to limited resources, many actions can be implemented at low cost. 

If you become aware that a member of staff is transitioning, make sure that they feel supported. Managers should be trained in how to respond. People who are transitioning may require time off for appointments and may wish to change their name, title and/or pronouns. Managers should discuss with the staff member if and how they wish to inform other colleagues. You should check in regularly with them as their wishes may change. 

Remember that confidentiality is key: you must not share information about a person’s transition unless they agree. The person may wish to tell only some people or may wish to tell others at a different time. You should note that the staff member may not have told their friends or family; you should check how they would like you to refer to them if you have to contact their emergency contact, for example. 

Some issues which affect transgender employees and workers in particular include: 

  • Staff records: information relating to a worker being transgender is sensitive personal data. You must not disclose this information without the person’s consent; confidentiality is imperative. 
  • IT: transgender workers may wish to have a new (or multiple) email address(es). 
  • Legal checks: some documents may use a transgender worker’s previous name. 
  • Toilets and changing facilities: transgender members of staff may wish to use different facilities. If other members of staff raise concerns related to this, consider practical solutions such as having a self-contained gender-neutral toilet. 
  • Dress codes: ensure any dress codes you have are flexible so workers can dress in a way that is comfortable for them. 

Conclusion

You can support transgender staff members by fostering a welcoming and inclusive culture in the workplace. Ensure that you prevent gender reassignment discrimination by considering issues that particularly affect transgender workers.