Gender reassignment

Introduction

The Equality Act 2010 applies to all categories of staff who may work in a business, including workers, employees, contractors, partners, or a director (collectively referred to as workers in this section), but not volunteers.

It provides that you cannot treat a worker less favourably than others because of their gender reassignment status.

Gender reassignment is the process of changing one's physiological and other characteristics relating to one's particular sex to that of the opposite sex.

The protection covers a worker irrespective of whether the gender reassignment has been completed. It is also unlawful to discriminate against a worker because they are undergoing or intend to undergo the gender reassignment process.

A worker is not protected if they do not intend to live permanently in the opposite gender to their birth sex.

Note that a ruling in a significant Employment Tribunal case stated that gender reassignment doesn't just refer to those who undergo a medical transition, but also individuals who regard themselves to be gender non-binary or gender-fluid. This can include, broadly, individuals who identify as a gender that is in-between or beyond the binary categories of 'man' and 'woman'; those who fluctuate between identifying as either one of them; and those who identify as neither. This is still the position, as the case wasn't appealed. However, being an Employment Tribunal judgement, it doesn't have to be followed by other Employment Tribunals.

Areas of gender reassignment discrimination in employment

Discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

In some cases, however, a job can be offered to someone of a particular gender reassignment status without it amounting to unlawful discrimination, in order to comply with another law or if there is a genuine 'occupational requirement'.

Types of gender reassignment discrimination

Direct discrimination

This is where a worker is treated less favourably because of their gender reassignment status when compared with another worker (known as a 'comparator') who is not undergoing gender reassignment but who shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

• Your perception of their gender reassignment status, regardless of whether or not the perception is correct.
• The gender reassignment status of another person (also known as discrimination by association). Examples include a worker being treated less favourably because they live with someone who is undertaking gender reassignment or because you dismissed them after they have refused to comply with instructions that would require them to discriminate against someone because of their gender reassignment status.

It also may occur if a recruitment decision contains a discriminatory statement, even when there's not an active recruitment process underway and no identifiable victim.

You could be liable for direct discrimination even if you did not intend to discriminate against your worker.

You cannot defend a direct discrimination claim by 'justifying' it (arguing that your actions were a proportionate means of achieving a legitimate aim).

Indirect gender reassignment discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace which places a group of employees at a particular disadvantage compared to other workers because of their gender reassignment status and a worker within that group suffers the particular disadvantage.

It also applies if a worker, who is not in the group that suffers the disadvantage, also suffers the disadvantage alongside the worker with the protected characteristic.

It does not matter whether or not this has been done intentionally.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct (including conduct of a sexual nature) towards a worker by an employer or another worker, because of that worker's actual or perceived gender reassignment status, or association with someone undergoing gender reassignment. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment - even if the conduct was unintentional.

For example, making sexual remarks or gestures, or referring to people who are undergoing gender reassignment by an offensive nickname, can result in unlawful harassment.

Note: Unlawful gender reassignment harassment will also occur if an employer treats a worker less favourably because they have rejected or submitted to any unwanted conduct.

Employers must take all reasonable steps to prevent acts of harassment being committed 'in the course of a worker's employment', by:

• Another member of staff, and
• From 30 October 2026, a third party (i.e. anyone other than the employer or their staff - see our section on the Employment Rights Act 2025 for more information).

Note: 'In the course of a worker's employment' means whilst they are at work or in a workplace-related environment, such as an office party or training event located outside the workplace.

If it's reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even if the harassment was unintentional). However, a worker will not be protected if they are oversensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct can also make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Employers cannot defend a claim of harassment on grounds that they did not know about it, it was an unauthorised act, or the actions were reasonable or warranted.

Victimisation

Victimisation happens when a worker is treated less favourably because:

• They have asserted their right not to be discriminated against based on their gender reassignment status by making a complaint about gender reassignment discrimination
• They gave evidence in a complaint of gender reassignment discrimination
• They did anything else under the Equality Act relating to gender reassignment discrimination
• They have alleged that you or another worker have contravened the provisions regarding gender reassignment discrimination in the Equality Act
• You believe that they have done or may do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above-mentioned action.

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

• suffer a disadvantage connected to their protected characteristic,
• have needs that are different from the needs of those who do not have their protected characteristic, or
• have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,

...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

Positive action

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

• There are two equally qualified candidates to choose between
• You do not have a policy of treating persons with the protected characteristic more favourably
• Positively discriminating is a proportionate means of achieving a legitimate aim.

The Act does not require employers to take positive action and it is therefore voluntary.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

Workers (including employees) protected by the Equality Act 2010 have a right not to be discriminated against or victimised by you or your staff, or harassed by you or your staff. From 30 October 2026, this protection will also extend to harassment by a third party. Discrimination, victimisation and harassment are collectively referred to as discrimination in this section.

A worker can start a claim for damages for unlawful discrimination at an Employment Tribunal regardless of how long they have worked for you. If you dismiss an employee for a reason related to being discriminated against (for example because they complained about discrimination) or if they resign because you have discriminated against them, they may also claim unfair dismissal. An employee must have worked for you for at least 2 years before they can bring a claim for unfair dismissal (this will change to 6 months on 1 January 2027. See our section on the Employment Rights Act 2025 for more information).

If the discriminatory act (if claiming discrimination) or effective date of termination (if claiming unfair dismissal) occurred on or after 1 October 2026, the time limit to start a tribunal claim is within 6 months of the act or of the effective date of termination. Note: If the act or effective date of termination occurred before 1 October, the time limit is 3 months - see our section on the Employment Rights Act 2025 for more information.

The time limit can be extended if a tribunal considers that it is fair and reasonable in the circumstances.

There's no limit on the amount of compensation a tribunal can award for unlawful discrimination.

Further information

For further information see the Acas guidance for employers and employees on discrimination, bullying and harassment.