Under the Equality Act 2010:
- The Protected Characteristic of Sex means: a man or a woman.
- The Protected Characteristic of Gender Reassignment means: A person who is proposing to undergo, is undergoing or has undergone gender reassignment (the process of changing physiological or other attributes of sex and the identity assigned at birth, to match their true gender identity). People who have undergone or are undergoing gender reassignment may identify as transgender or formerly transgender, or they may choose to identify as just male, female or non-binary. Further protections to ensure people are recognised (from birth) in their true gender, and ensure knowledge of reassignment is confidential, are in place under the Gender Recognition Act. Further information is available in the LGBT Toolkit.
- The Protected Characteristic of Marriage and Civil Partnership covers people who are married or in a civil partnership but is limited to employment (‘work’) only.
- The Protected Characteristic of Pregnancy and Maternity is as follows: Maternity refers to the period of 26 weeks after the birth (including still births), which reflects the period of a woman’s Ordinary Maternity Leave entitlement in the employment context. In employment, it also covers (where eligible) the period up to the end of her Additional Maternity Leave. It is unlawful to treat a woman unfavourably (such as asking her to leave) because she is breastfeeding. The same would apply to a transgender man who is chestfeeding.
Sex is defined by external and internal sex and reproductive organs and is registered / assigned at birth. Gender is more complex, can be fixed or fluid, and refers to our internal sense of who we are and how we see and describe ourselves and, for trans and intersex people, may be influenced by variation in chromosomal configuration.
Cisgender is a word to describe people whose gender identity matches their sex, as assigned at birth. Transgender people identify with a gender different to the sex they were registered / assigned at birth. People may identify as male, female, non-binary or gender-fluid (neither or both male and female). Other sex definitions include intersex (dual or ambiguous sex appearance). An intersex person may also identify as male, female or non-binary. Other terms may be used.
Although the Equality Act does not specifically mention people who identify as non-binary or intersex it would be advisable to include considerations for non-binary and intersex people in practice. In 2020, case law established that non-binary and gender-fluid people are included in the protected characteristic of Gender Reassignment.
Gender dysphoria is the name of the condition that affects people who experience a conflict between their sex and gender. Children as young as four or five can show signs of gender dysphoria and puberty presents challenges for young people. As part of transitioning, people may or may not undertake medical intervention (“sex change”) in the form of hormone therapy, physical surgery, or both.
Transgender people have legal protection against discrimination from the moment that they announce they intend to transition. Once people have transitioned they must be allowed to live their lives in their true gender without having to refer back to how they were previously. Schedule 3 Part 7 (28) of the Equality Act does allow a service provider to discriminate (for example, exclude) someone on grounds of gender reassignment in relation to the provision of same-sex services where this is a ‘proportionate means of achieving a legitimate aim’. For example, it may be reasonable to exclude a trans woman who still has male sex appearance from accessing women’s shared facilities if it could put cisgender women at a disadvantage.
People can apply for a Gender Recognition Certificate (GRC) to have their affirmed/acquired gender to be legally recognised. This means they can amend the sex assigned on their birth certificate to match their gender. However, intersex and non-binary are not currently legally recognised.
Transvestites are not necessarily transgender; there are many people who do not have a gender-conflict but nevertheless enjoy dressing or living for a while as the opposite sex, as part of their erotic life, or just for pleasure and fun.
The general term “trans” is often used to positively include all those who are or were transgender, as well as those who are transvestite, non-binary or gender-variant of any kind.
Regardless of what sex definition is used for medical or other purposes, names, pronouns and titles/honorifics for customer records must reflect a person’s affirmed gender; this should always be done as a matter of courtesy and is not dependent on the person having a GRC.
It should not be assumed that trans people are necessarily without child-rearing responsibilities. Trans people are often parents, either as a result of previous relationships or as adopters or fosterers.
In some situations, a health or care professional may need to know someone’s birth sex if this is different to their gender identity where this can affect medical results and treatment. Sex may also be used for calculating pensions.
Further information is available from:
Those most at risk of prejudice and discrimination are women (who are often parents/carers of young children and older dependants), men with caring responsibilities and transgender people. When there is an imbalance of men or women, the minority gender may be disadvantaged. Male disadvantage is often as a result of negative attitudes or stereotypes towards women (for example, a belief that certain roles such as caring are for women and are of less importance/value).
Most services are gender neutral in that they are available to anyone regardless of their sex/gender, but sex/gender can be a factor in terms of how easy it is to access that service or a person’s experience/confidence in using a service (for example, where women have a greater dependence upon public transport or may be concerned about sexual harassment). Some health and social care interventions require a sex specific response such as cancer screening and personal care.
Women experience many inequalities in society still and both boys and girls may experience bullying at school because they do not confirm to current gender stereotypes. Many inequalities faced by women arise from perceptions and values attributed to their child bearing/caring role, although women do not necessarily spend the majority of their time having or raising children! Other inequalities and patronising behaviours arise from outdated beliefs that women are weaker, delicate, or less capable than men. The over sexualisation and objectification of women also leads to higher levels of harassment, sexual assault and other demeaning behaviour towards women. Men can also experience prejudice and discrimination when they take on stereotypically female roles such as being the main child-carer.
Care should be taken not to reinforce gender stereotypes in the workplace.
Managers must support staff undergoing gender-reassignment so they are able to work in a safe and positive environment and follow the guidance provided by Human Resources.
Flexible working can help staff balance their lives inside and outside of work. Where necessary, managers should support both male and female staff in making choices about their parenting, caring and work roles.
Male and female staff will be paid the same for doing work of equal value and a job evaluation system is in use.
A positive attitude towards the rights of breastfeeding mothers (including staff, Councillors, colleagues and members of the public) is necessary and, under the Equality Act 2010, mothers must not be prevented from breastfeeding in public areas unless there are objective and reasonable grounds for doing so (i.e. health and safety). This means mothers must not be asked to cover up or move to a private space, and must be treated with dignity and respect. It is unacceptable to expect a mother to breastfeed or express milk in toilet facilities. Mothers should also be provided with a private space to breastfeed or express milk (with access to a refrigerator) if this is their preferred option, where such facilities are available. Find out more under our Breastfeeding Statement.
Some other gender considerations include:
- Biological differences that may affect how a service needs to be provided. For example, men and women’s health screening for certain cancers is different.
- The need for privacy. For example, separate changing facilities or sensitivity when carrying out physical contact – if a woman would reasonably object to the presence of a man and visa-versa.
- Sensitivity and confidentiality if someone is under-going gender re-assignment or has undergone gender reassignment.
- Access to gender-neutral facilities such as toilets and changing rooms and use of gender-neutral language where beneficial.
- Body shape and typical style and preferences such as dress. For example, uniforms are available in styles that suit a female form as well as a male form, but people are able to choose freely which style they wish to wear.
- Parenting/caring responsibilities, which may be different due to the age of children or size of family unit. The majority of caring is carried out by women. If men are caring they may have additional issues of isolation. Single parents – issues may be different for lone mothers and lone fathers.
- Marital/Civil Partnership status. For example, refer to ‘spouse or partner’.
- Provision for expectant or new mothers (e.g. being able to breastfeed in public, health and safety considerations, rest and changing rooms).
- In households with one car, women are less likely to have access to the family car.
- Personal safety and fear of crime – women have a greater fear of crime because of the nature of crime towards women (such as sexual assault and rape). This could, for example, restrict a woman’s ability to get out and about.
- Dominance – Is the provision of facilities and services overall balanced and catering for women’s and men’s needs? For example, more cyclists are male and more horse-riders are female, but is the provision of cycle routes and bridleways proportionate and fair? Women need more toilet cubicles than men – how do toilet queues compare between men and women?
Sex and Gender Equality Checklist
- Whether single-gender and/or gender-neutral provision is required. For example: a women’s support group for victims of domestic violence; the availability of gender-neutral toilets. Gender segregation should only take place where there is a justifiable reason.
- Are staff who deal with records aware of the protections offered under the Gender Recognition Act?
- Do uniforms and dress codes take into account gender needs (and likewise offer flexibility for gender neutrality where needed)?
- Are the needs of carers and mothers who are breastfeeding taken into account?
- Is language or imagery in communications appropriate? Does it reflect diversity and reduce stereotyping of men and women. Is it gender neutral where gender is not a factor?
- Whether men and women (including those who are transgender) have equal access to the service or benefits? What evidence do you have?
- Whether there are any barriers to participation e.g. low numbers compared to the population? What evidence do you have and what can you do to mitigate those barriers?
- Gender pay gaps – does the employer seek to address a pay gap? Will it take into account that women earn less on average than men?
- Is the ability to access a car taken into account?
- Other factors that are relevant to your service:
…what improvements can you make to any issues identified?