Sex and gender discrimination is an increasing area of legal concern as the number of women and openly gay, lesbian, bisexual and transgender individuals enter the workforce. State and federal laws mandate that these employees are given equal access and protections. Yet, too often they are discriminated against simply because of their sex or gender identification.
More Than 40 Years of Experience Fighting for Employees' Rights
Allred, Maroko & Goldberg in Los Angeles was founded in 1976. Since then, the firm has built a national reputation for handling complex employment law cases where individuals were denied their basic rights and protections. If you believe you have been denied a job, fired, harassed or otherwise mistreated due to your sex or because you are a member of the GLBT community, please contact our sex discrimination attorneys for a case evaluation.
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Our firm is dedicated to serving the interests of the California GLBT community. We have spent 40 years advocating on behalf of equal rights for all individuals, regardless of their sexual orientation.
Our lawyers' ability to successfully interpret and apply California and federal employment laws have led to millions of dollars in verdicts and settlements for our clients. Some examples of successful sex discrimination cases follow:
- $1.68 million settlement for a group of female farm workers who were denied work because of their sex
- $440,000 settlement for a female bank executive who was denied decision-making responsibilities and demoted to handling lesser tasks by her male colleagues
What Is the Difference Between Sex and Gender Discrimination?
Sex and gender discrimination are closely tied, yet they have two distinct meanings. A person's sex refers to whether they are genetically male or female. Gender refers to which sex someone most closely identifies with.
An individual may be discriminated against at work because of his or her sex such as denying a job to someone because she is female. Or someone may be discriminated against because he is genetically male, but identifies more as a female. Employment laws protect against these and other similar situations.
What Is Considered Sex Discrimination?
Sex discrimination in the workplace can be one of the easiest things to spot — or the hardest. It all depends on the situation. Despite increased attention to gender equality, gender biases remain. Below is a list of the most common examples of sex discrimination at work:
- Unequal pay — Men and women may not receive the same pay despite having the same position and status at work.
- Different job responsibilities — Men and women may be given different duties such as men being asked to lift heavy items or women being tasked to handle only administrative duties.
- Interview questions — Men and women may face very different interview questions, including women being asked if they have children or if they plan to have children.
- Advancement opportunities — Men and women should receive equal opportunities for advancement without their sex or gender playing a role in promotion or hiring decisions.
- Gender-specific dress code — Men and women should have similar dress codes versus only requiring women to follow a dress code that requires them to wear dresses or skirts.
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If you have been discriminated against because of your sex or gender orientation, please contact our lawyers to discuss your legal options. Contact us online, call our Los Angeles office at 323-302-4774 or call our New York office at 212-202-2966 to arrange a free case evaluation.
It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.
The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).
The Equality Act 2010
Discrimination under the EqA 2010
The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.
Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.
A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.
There are five types of prohibited discrimination in respect of gender reassignment:
- Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
- Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
- Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
- Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
- Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people
One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc , the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.
However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.
Exceptions: when gender reassignment discrimination may be lawful
Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.
Application to the NHS
In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.
However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.
NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.
Gender Recognition Act 2004
The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.
Prohibition on disclosure of information
The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.
An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee's personal file, disclosing the fact that the employee was born a different gender, without the employee's prior consent.
There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.
In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.
Practical considerations for NHS bodies
The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.
Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.
In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.
Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.