Extract from the Services and Public Function Equalities Act Code of Practice for Gender Reassignment
Gender reassignment
What the Act says
2.17
The Act defines gender reassignment as a protected characteristic. People who are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment.
s.7(1)
2.18
A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
s.7(2)
2.19
Under the Act ‘gender reassignment’ is a personal process (that is, moving away from one’s birth sex to the preferred gender), rather than a medical process.
2.20
The reassignment of a person’s sex may be proposed but never gone through; the person may be in the process of reassigning their sex ; or the process may have happened previously. It may include undergoing the medical gender reassignment treatments, but it does not require someone to undergo medical treatment in order to be protected.
Example: A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment.
2.21
This broad, non-medical definition is particularly important for gender variant children: although some children do reassign their gender while at school, there are others who are too young to make such a decision. Nevertheless they may have begun a personal process of changing their gender identity and be moving away from their birth sex. Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act.
2.22
The Act requires that a person should have at least proposed to undergo gender reassignment. It does not require such a proposal to be irrevocable. People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment.
2.23
Example: A person born physically male tells her friends she intends to reassign her sex . She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex .
2.24
Protection is provided where, as part of the process of reassigning their sex, someone is driven by their gender identity to cross-dress, but not where someone chooses to cross-dress for some other reason.
Example: Before going to a party in a local hotel, a guest lets it be known that he intends to come dressed as a woman for a laugh. However, the management says he cannot attend the event dressed as a woman as it would create a bad image for the business if there was bad behaviour on the premises.
The management also tells a transsexual woman that she can’t come dressed as a woman as they don’t feel comfortable with the idea, notwithstanding the fact that they know she has been living as a woman for several years.
The guest would not have a claim for discrimination because he does not intend to undergo gender reassignment and because the reason he is told not to come dressed as a woman relates to the management’s concern that overly boisterous behaviour would give a bad impression of the business, not because they think he is a transsexual person.
The transsexual woman would have a claim as the reason for the less favourable treatment was because of her protected characteristic of gender reassignment.
2.25
Where an individual has been diagnosed as having ‘Gender Dysphoria’ or ‘Gender Identity Disorder’ and the condition has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, they will also be protected under the disability discrimination provisions of the Act (see Chapters 6 and 7).