The Facts- Terminology
Biological sex is assigned at birth, depending on the appearance of the genitals. Gender identity is the gender that a person “identifies” with or feels themselves to be.
Cis or Cisgender- refers to those individuals that feel that their biological sex matches their gender identity. However, it is not the same for everyone.
Transgender and Trans are terms used to describe people whose gender is not the same as, or does not identify with, the sex that they were assigned at birth. Trans people may refer to themselves using a variety of terms which include but are not limited to:
- People who cross-dress –People who sometimes wear the clothing of another sex, but don’t want to live full-time as a member of that sex.
- Genderfluid, Agender and Genderqueer people –People who feel that they are both, or neither, male and female or whose sex varies.
- Drag queens, drag kings, and other people who don’t appear conventionally masculine or feminine.
- Transgender man- This is the term used to describe someone who is assigned female at birth but identifies and lives as a man.
- Transgender woman- This is the term refers to someone who is assigned male at birth but identifies and lives as a woman.
It is important to realise that not all transgender people want to be referred to as ‘trans’ at all. For example, a trans man (someone who has transitioned from female to male) may simply prefer to be called a man.
Additionally, there are some people whose gender identity may be anywhere on the spectrum between or beyond entirely male and entirely female.
Transitioning refers to the steps that many transgender people may take in order to live in the gender that they identify with. Each person’s transition is different. Some choose to have medical intervention like surgery or hormone injections. However, not all trans people want to take this step, or are able to take this step. For others, transitioning may involve dressing differently, telling friends and family or changing documents.
Gender dysphoria refers to the condition in which a person experiences discomfort or distress because there is a mismatch between their biological sex and their gender identity. In other words, it is the desire to live as the gender other than that at birth. Gender dysphoria is a recognised medical condition for which support is available. It is not a mental illness.
The Facts- Demographics and experiences
Data on transgender and gender identity is limited, with the 2021 Census topic consultation identifying a need for gender identity data. This lack of data may also be as a result of fear. In the UK Government’s latest survey, 59% of trans women and 56% of trans men who responded said that they avoided expressing their gender identity as they feared negative reactions from other people. In 2018, the Governments Equalities Office tentatively estimated that there are approximately 200,000-500,000 trans people in the UK.
Despite a lack of concrete data on the transgender population size. The discomfort felt by transgender people is undeniable. A report by Stonewall in 2017 found that a two in five (40%) of the 733 trans respondents adjust the way that they dress because they fear discrimination or harassment.
Stonewall’s ‘Trans Report’ also found that trans people are subjected to hate crime as well as day-to-day discrimination. The report found that between 2016 and 2017, 41% of trans people surveyed have experienced a hate crime or incident because of their gender identity.
Further, the report details discrimination felt by trans people in public spaces; when buying a new home; in higher education; and in work.
Trans-gender people are protected from discrimination and harassment under the Equality Act 2010. Under the legal definition, a trans-gender person has the protected characteristic of gender reassignment if they are undergoing, have undergone, have partially undergone or are proposing to undergo gender reassignment.
Gender reassignment is a process to change your sex by changing physiological and/or other attributes of sex including, for example, your first name, title, clothing, etc. It does not necessarily involve medical or surgical treatment, although it can do.
Only trans-gender people are explicitly protected under equality legislation but there are different types of discrimination which may involve someone who is not trans to be protected under the Equality Act 2010.
This occurs when a person, rule or policy discriminates against a person solely because of their own gender reassignment. Direct discrimination can also apply in other circumstances:
- Direct Discrimination by Association occurs when someone is treated less favourably because of the gender reassignment of someone they are associated with e.g. a family member or a friend.
- Direct Discrimination by Perception occurs when someone is treated less favourably because they are thought to be considering, thought to be undergoing or thought to have undergone gender reassignment, regardless of whether this correction is correct or not. This is the type of discrimination where non-binary (those who identify as neither a man nor a woman) may be protected.
When you have a rule or policy that applies to everyone but particularly disadvantages a person has the protected characteristic of gender reassignment. However, indirect gender reassignment discrimination can be permitted if the organisation or employer can show that there is a good reason for the discrimination.
This is behaviour deemed to violate the individual’s dignity, or it creates an intimidating, hostile, degrading, humiliating or offensive by the recipient that is relevant to gender reassignment. People can find something offensive even when it’s not directed at them.
Under the Act, harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, then you cannot claim against the organisation. However, claims can be made against the harasser.
Discrimination against someone because they have made, or supported someone who has made a complaint, under Equality Act legislation.
Circumstances when being treated differently due to gender reassignment is lawful
A difference in treatment may be lawful in some circumstances. These are listed below:
- An organisation may take positive action to address the under-representation of transsexuals in a particular role or activity.
- The circumstances may fall under the exceptions within the Equality Act.
- In competitive sports, a sports organisation may restrict participation because of gender reassignment if they think that this is the only way to make the event fair for everyone.
- A service provides single-sex services in very restricted circumstances.