Despite greater awareness and public understanding of gender identity, many transgender people still face discrimination. We examine transgender legal rights from a private client and employment law perspective.
Over the past 20 years, the legal rights of transgender people have been increasingly strengthened. Transgender people are now afforded more rights in terms of being able to change their legal gender; protection in law in relation to their marriage or civil partnership; and anti-discrimination measures in employment and the provision of goods and services. This article explores each of these subjects.
What does transgender mean?
There is no legal definition of transgender. Transgender is a term used to describe people whose gender identity differs from the sex assigned to them at birth. Some transgender people may feel that they are a male born into a female body or a female born into a male body, but not necessarily. Some transgender people may identify as a combination of male and female or as neither.
Gender identity is different to sexual orientation. Like everyone else, transgender people may be straight, lesbian, gay or bisexual.
Some transgender people take hormones and have surgery as part of their transition, and some don’t. It is important to be aware that being transgender is not dependent upon medical procedures. Some choose to openly identify as transgender, while others simply identify as men or women.
Until 2005, individuals who changed gender were not recognised for legal or tax purposes in their acquired gender. Since 4 April 2005, the Gender Recognition Act 2004 (GRA 2004) has enabled transgender people to change their legal gender in the UK, allowing them to obtain a new birth certificate and giving them full recognition of their acquired gender in law for all purposes.
The standard route requires a transgender person, aged over 18, to demonstrate that they have been diagnosed with gender dysphoria (discomfort with their birth gender), have lived in their acquired gender for at least two years and intend to live in their acquired gender for the rest of their life. The evidence can take the form of official documents such as a passport or driving licence, letters or documents from official, professional or business organisations, or utility bills. A medical report will also be required. The fee for applying for a GRC is £140.
A transgender person who is married or in a civil partnership must apply by the alternative route which requires that they have lived in their acquired gender for at least six years rather than two.
The overseas route can be used if the transgender person’s acquired gender has been legally accepted in an approved country or territory.
The transgender community are pushing for things to go further. In July 2017, the government said it would soon be launching a review of the GRA 2004. Stonewall states that the present act is in ‘urgent need’ of reform. It establishes a process for recognition of change of gender which includes intrusive medical assessments and demeaning and bureaucratic interviews and, importantly, it currently prevents transgender people from determining their own personal identity. The GRA 2004 also only recognises the two binary genders, male and female. The government has said that it will consider the need for a new legal category for those with a non-binary gender identity.
Marriage and civil partnerships
Prior to the Marriage (Same Sex Couples) Act 2013, transgender people who had married were required to end their marriage in order to get a GRC, because at that time, same-sex marriages were not legal. Since the coming into force of the 2013 act, this requirement no longer applies. Existing marriages can continue where one or both parties change their legal gender, provided both parties intend to remain married following the gender recognition. If a transgender person’s spouse does not consent to the marriage continuing after a GRC has been awarded, known as the ‘spouse veto’, then a GRP can issue an interim GRC instead, which can be used by the transgender person (or their spouse) to end the marriage, following which a full GRC can be issued.
If a transgender person is in a civil partnership, then both parties must apply to change their gender simultaneously. This is because civil partnerships are only for same-sex couples. If only one party is transitioning, then they will need to decide whether to convert the civil partnership into a marriage. If they decide to do so, then the simplest way of proceeding is to do this before applying for a GRC.
A transgender person’s legal status as the father or mother of their children will not change after a GRC has been issued, and neither will their rights and responsibilities towards their children.
Pensions and benefits
When a transgender person obtains their GRC, it will mean that their pension and social security benefits will be paid in accordance with their acquired gender. This can have an impact on the age they can take their state pension. It may also affect a workplace pension and any pension their spouse or civil partner may receive. It is important therefore for a transgender person to notify their pension provider to ensure that the correct payments are being made.
Another factor to be considered is the effect on an individual’s will. Under section 15 of the GRA 2004, the fact that a person’s gender has changed does not affect the devolution of property under a will made before 4 April 2005. However, the devolution of property under a will dated on or after 4 April 2005 takes effect in accordance with the acquired gender.
So, where a client’s will makes a gender-specific gift, the effect of this will depend on when the will was made. Let’s take the example of Henry, who made a will leaving ‘the whole of my estate to my eldest son’. At the time of making the will, he had two sons, Edward, aged 20, and George, aged 18.
After the will is made, Edward transitions from male to female, legally changes her name to Edwina and obtains a GRC.
If Henry made his will before 4 April 2005, the date the GRA 2004 came into effect, for succession purposes Edwina would be recognised by what is on her birth certificate, so she would still be treated as the eldest son and therefore the estate would pass to her.
However, if Henry’s will was made after this date, then the law provides that for succession purposes, the estate devolves in accordance with acquired gender. So, the estate would then pass to George as the eldest son.
It is more common for a client to want to name their children in their will. If instead of the gender-specific gift, the will had been written to leave ‘my estate to Edward’, then the gift may not fail on the basis that Edwina can prove that she was previously known as Edward.
Clarity could also be achieved by referring to Edwina by both her current and previous names, but this might not be what Henry or Edwina would want. Another option would be for Henry to ensure that his will uses gender-neutral wording, such as ‘my child’. These sensitive points will need to be discussed with the client to ensure that the beneficiary can be clearly identified in the manner they would like to be referred to, whilst also ensuring that the interpretation of the will is clear to avoid a dispute arising.
It is important that clients who benefit a person who has changed gender, or may do so in the future, review their will.
The descent of any peerage, dignity or title of honour is not affected by the issue of a GRC.
Trustees and personal representatives
Trustees and personal representatives are not under a duty, under the law relating to trusts or the administration of estates, to enquire before conveying or distributing property whether a GRC has been issued to a person.
Furthermore, they are not liable in respect of such a conveyance or distribution for failure to take into account a GRC of which they had no notice at the time. If the trustees or personal representatives distribute property wrongly, then the correct beneficiary has the right to trace the assets.
Where the devolution of property under a will made on or after 4 April 2005 is different from what it would have been but for the change of gender, then the person can apply to court under section 18 of the GRA 2004 for an order on the grounds of being adversely affected.
Other courses of redress could include bringing an Inheritance (Provision for Family and Dependants) Act 1975 claim or, if all parties agree, entering into a deed of variation.
Addressing a transgender person
It is important to address a transgender person by the name and gender they refer to themselves as. If you accidently use the wrong name or pronoun, apologise quickly and sincerely, then move on. You do not want to make a big deal of it.
Most importantly you should ask how they would like you to address them and ensure that you do not ‘dead name’ someone (refer to them by the name they previously used).
The title ‘Mx’ (pronounced ‘mix’) has become widely accepted by government organisations and businesses as an alternative to Mr, Mrs, Miss or Ms, which transgender people can use who do not wish to specify their gender as male or female, or who are non-binary and therefore do not recognise themselves as male or female. Non-binary people may also prefer the use of the pronoun ‘they’, rather than ‘she’ or ‘he’.
Provision of services
The Equality Act 2010 (EA 2010) provides that service providers must not discriminate against someone requiring a service. It does not matter whether the service is provided for free or charged for. An organisation will be liable for unlawful discriminatory acts (direct or indirect discrimination, harassment or victimisation) unless it has taken reasonable steps to prevent such acts occurring.
Protection under the EA 2010 is on the basis of nine ‘protected characteristics’. A person has the protected characteristic of ‘gender reassignment’ if the person is: ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’.
One in eight [transgender employees] … reported being physically attacked at work by customers or colleagues during the previous year, and half of transgender and non-binary people had hidden or disguised that they are LGBTQ in the workplace for fear of discrimination.
Significantly, under the EA 2010, gender reassignment is a personal process rather than a medical one. Consequently, a person who decides to live as the opposite gender but does not undergo any medical intervention will have the relevant protection under the EA 2010. Employers can be liable for the acts of an employee during the course of their employment, whether or not the actions were done with the employer’s approval or knowledge (‘vicarious liability’). ‘In the course of employment’ has a wide meaning, and employees who commit an unlawful act against customers and service users while providing services will usually be regarded as acting in the course of their employment. Employers can, however, defend a claim, for example, of harassment, if they can demonstrate that they have taken all reasonable steps to prevent the employee from carrying out the acts. At the very least, employers should put in place an anti-harassment and bullying policy or a dignity at work policy that is communicated to all staff and is monitored and reviewed. The policy should, of course, include an appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs. If there is a linguistically diverse workforce, consider providing translations of the policy.
Training staff on the issues of equality and diversity is often very effective, too.
A recent survey commissioned by Stonewall unearthed some shocking findings regarding transgender employees in the workplace. One in eight who responded reported being physically attacked at work by customers or colleagues during the previous year, and half of transgender and non-binary people had hidden or disguised that they are LGBTQ in the workplace for fear of discrimination. These shocking statistics raise questions as to whether employers are doing enough to ensure that gender reassignment discrimination and bullying are prevented in the workplace. The recent Stonewall Workplace Equality Index of the Top 100 Employers revealed that only 20 per cent of employers had policies focusing on transgender employees.
A common issue that arises in the context of transgender staff or customers is the provision of toilet facilities. The Government Equalities Office (GEO) guidance states that transgender staff should be able to use facilities appropriate to their acquired gender when they start to live as their acquired gender on a full-time basis. The employer should discuss with the employee whether they would like to start using the facilities of their acquired gender, and how best to communicate with staff about their transition. Although employers may be concerned that the toilet arrangements could be a major issue for other employees, it should be considered that many single-sex toilets have separate cubicles and are often cleaned by a person of the opposite gender. Employers should support the employee’s right to use the appropriate facilities and should not expect the employee to use the disabled toilet unless they have a disability. Employers should be aware that each situation may need to be dealt with differently, as individuals will approach this in different ways.
The good news is that there is extensive guidance available for service providers and employers. The Equality and Human Rights Commission has codes of practice on employment, services, public functions and associations, as well as guidance for employers and service providers. The GEO has guidance on recruiting and retaining transgender staff and on providing services for transgender clients.
The Stonewall website sets out a toolkit for employers on inclusive policies which it says will demonstrate employers’ commitment to respecting and celebrating the identities of their LGBTQ employees.
In summary, employers should consider taking these practical steps:
- provide good diversity and inclusion training to all staff at all levels
- review bullying and equal opportunities policies to ensure that it is clear that bullying will not be tolerated
- consider implementing a transitioning at work policy – Stonewall provides a comprehensive toolkit on how to prepare one
- consider flexibility in terms of requirements for titles / genders in recruitment / application forms
- consider making policies gender-neutral by using non-gender-specific pronouns such as they / them / their
- consider gender-neutral uniforms, or if this is not possible, offer support to transgender people to allow them to wear what is appropriate to the gender they present in at work.
Everyone deserves the freedom to be what they want to be, and we can all help in achieving this.
This article was first posted on the Law Society’s PS Magazine here on 15 May 2018 and has been reviewed and updated on 24 Feb 2021.
This article is part of Private Client Issues – March 2021
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