10/06/2009
Discrimination
Discrimination on grounds of sexual orientation or transsexual identity is unlawful in employment, and in the provision of goods, facilities and services, including public services.
Background
The UK's laws which ban discrimination against LGBT people have their origins in Europe. In 1998, the European Court of Justice (the court of the European Union) ruled that EU laws against sex discrimination also apply to discrimination against transsexual people. As a result, in 1999 the UK updated the Sex Discrimination Act to protect transsexual people from discrimination in employment and in the provision of vocational training.
In 2000, the EU agreed a 'directive' banning discrimination in employment and vocational training on grounds of sexual orientation, religion and belief, disability and age. As a result, the UK introduced laws in 2003 to implement this ban.
More recently, in April 2007, the UK Government introduced laws to ban sexual orientation discrimination in the provision of goods, facilities and services, including public services. This went further than is currently required by EU law.
An additional EU law, the 2004 'Gender Directive', required the UK to ban discrimination against transsexual people by providers of goods, facilities and services, and the UK's version of this law came into effect on April 6th 2008.
There is an Equality Bill currently going through the Westminster Parliament, which will further improve the law in this area. It may be passed in spring 2010.
Transsexual people
The law banning discrimination in employment on grounds of transsexual status was added to the Sex Discrimination Act 1975 by the Sex Discrimination (Gender Reassignment) Regulations 1999. These make it unlawful to discriminate against a person because they intend to undergo, are undergoing, or have undergone, gender reassignment. Gender reassignment is defined as a process undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex. This is a wide definition, which should include people who have non-surgical treatment. This law applies to discrimination in the provision of employment and vocational training (which includes most further and higher education). It applies regardless of what hours you work or how long or short a time you have worked for your employer (or been a student).
The law covers all kinds of 'direct discrimination', defined as getting less favourable treatment. This can range from not being offered a job or being sacked, to being harassed at work. The law includes a specific ban on harassment on grounds of gender reassignment, and harassment is defined as unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.
The law also bans victimisation, which is where your employer treats you badly because you are making a complaint of discrimination (or you are assisting in someone else's complaint).
If you make a complaint about any of these forms of discrimination to the Employment Tribunal, and the complaint is upheld, the Tribunal can order that you receive a just settlement, which might be for example getting your job back and/or receiving financial compensation.
There is a Government funded organisation whose remit includes to help people uphold their rights under the anti-discrimination laws. This is the Equality and Human Rights Commission (EHRC). The EHRC can give advice about discrimination and how to address it. See in particular their webpages on transsexual people and the law.
It is important to note that formal complaints of discrimination under this law must be made to the Employment Tribunal within three months of when you first become aware of the discrimination. So you have to move fast, and the recommended first step would be to seek advice from the Equality and Human Rights Commission.
Discrimination and harassment against transsexual people by providers of goods, facilities and services (eg service in a shop or pub, accommodation in a guest house) is banned by the Sex Discrimination (Amendment of Legislation) Regulations 2008, which came into effect on 6th April 2008. If you are discriminated against in the provision of any goods, facilities or services because you are transsexual, we recommend you speak with the Equality and Human Rights Commission to get advice on how to uphold your rights.
Other transgender people
These laws only protect people who are intending to undergo, are undergoing or have undergone gender reassignment, which is defined as any process under medical supervision to change physiological or other characteristics of sex for the purpose of reassigning a person's sex. The law does not protect transgender people who are not intending to undergo gender reassignment. However, depending on circumstances it might be possible that employment tribunals and courts would interpret the Sex Discrimination Act to protect from discrimination against cross-dressing, intersex or androgyne people for example, if the discrimination was because the person is transgender. If you are discriminated against in this way, we recommend contacting the Equality and Human Rights Commission for advice.
Lesbian, gay and bisexual people
The Employment Equality (Sexual Orientation) Regulations 2003 ban discrimination on grounds of sexual orientation in the provision of employment or vocational training (which includes all education at further or higher education institutions).
Discrimination includes the following, if they are based on sexual orientation:
- direct discrimination, which means less favourable treatment because of sexual orientation (eg being sacked or refused promotion)
- indirect discrimination - where an apparently neutral rule has greater adverse impact on people of one sexual orientation than another
- harassment - which is defined as unwanted conduct which violates your dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for you.
The law applies regardless of how many hours you work, or how long or short a time you have worked for your employer. The law also bans victimisation, which is where your employer treats you badly because you are making a complaint of discrimination (or you are assisting in someone else's complaint).
It is important to note that discrimination against you on grounds of sexual orientation is unlawful whatever your sexual orientation is. If you are discriminated against because your employer thinks you are a lesbian, and in fact you're not, that is still unlawful. So is discriminating against someone because of someone else's sexual orientation, for example because the person has gay friends. Homophobic harassment is unlawful whether or not it is aimed at a particular victim, so if work colleagues tell homophobic 'jokes' which upset you, that is unlawful, even if the people doing it don't know you are LGB.
The Equality and Human Rights Commission is the statutory body which helps people to uphold their rights under the anti-discrimination laws, and they are a good place to start for more information. See for example their webpages on sexual orientation. Information on the law can also be found in an advice booklet from ACAS.
Complaints about employment related discrimination are heard by an Employment Tribunal; complaints about discrimination in further and higher education are heard by the sheriff court. If a complaint is upheld, the tribunal or court can order that you receive a just settlement, which might be for example getting your job back and/or receiving financial compensation.
Complaints of discrimination at work in Scotland are made to the Central Office of Employment Tribunals, and must be made within three months of you becoming aware of the discrimination. Complaints of discrimination in further or higher education must be made to the sheriff court within six months. We recommend contacting the Equality and Human Rights Commission as soon as possible if you have been discriminated against.
Discrimination on grounds of sexual orientation in the provision of goods, facilities and services (eg service in a shop or pub, accommodation in a guest house, NHS services, school education) is covered by the Equality Act (Sexual Orientation) Regulations 2007. These make it unlawful for a provider of goods, facilities or services, including public services, to discriminate directly or indirectly against someone being provided with the goods, facilities or services. Direct and indirect discrimination have the same meanings as described above. As with employment discrimination, it is unlawful for a person to discriminate against someone because of their actual sexual orientation, or because of the sexual orientation the person thinks they are, or because of someone else's sexual orientation.
Again, the Equality and Human Rights Commission can advise you about upholding your rights under this law. If someone discriminates against you, and you are not satisfied with their response, you can take them to the sheriff court. You must start your court action within 6 months of the discrimination happening.