The GRA allows transgender people to apply to a body called the Gender Recognition Panel to obtain legal recognition of their acquired gender. The Scottish Government believes the 2004 Act needs to be reformed and simplified and that the requirements laid down in the GRA are too intrusive and onerous. Since the GRA came into force, only 4,910 people in the UK have used the system and many in the trans community have said that they had not applied because they found the current process too bureaucratic, expensive and intrusive. Once someone is successful in applying under the current system they obtain a Gender Recognition Certificate (GRC) which confirms that their acquired gender is now their gender 'for all purposes'.
It is proposed that the system of recognition moves to one based on the individual making a declaration of their acquired gender and removing the requirement to provide medical evidence and prove that they have lived in their acquired gender for two years. Some requirements would remain, such as applicants having to provide a declaration that they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives. The 2004 Act extends across the United Kingdom and similar proposals are also being consulted on by the UK government.
Trans people are already protected at work by the provisions of the Equality Act 2010 relating to gender reassignment. A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Any trans person who meets this test will be protected from discrimination at work or in the provision of services if gender reassignment is the reason for their treatment.
However, there are still some circumstances where discrimination against individuals with the protected characteristic of ‘gender reassignment’ is permitted. For example, the Equality Act allows providers to offer single-sex services that exclude trans people as long as it is proportionate to do so and it achieves a legitimate aim. An example might be a domestic violence refuge for women, which may be able to justify excluding trans women if this would impact on the service provided to others.
The Equality Act also allows employers to impose a requirement that a job can only be open to people who do not have the protected characteristic of gender reassignment, where this is crucial to the post and a proportionate means of achieving a legitimate aim. The example given in the explanatory notes to the Equality Act is: “A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.” The Government’s view therefore is that this provision would not be undermined by amending the GRA as employers will still be able to stipulate that certain posts cannot be held by trans women even where they have obtained a GRC confirming that they are legally female. The Government's view is that having a GRC will be just one of the factors that employers consider when determining whether imposing such an occupational requirement is a proportionate means of achieving a legitimate aim.
However, there would appear to be a lack of clarity for employers and service providers here. Once a person obtains a GRC, then they must be treated 'for all purposes' as having the gender on the GRC. So for example a person who has transitioned from being a man to a woman and obtains a GRC confirming that their gender is female, would be able to argue that they are legally a woman and therefore entitled to apply for a woman-only role or use a woman-only service. The consequence for employers and service providers is that this could lead to discrimination claims being brought by a person who is legally a woman being excluded from a role or a service because the organisation has said that the role or service is not open to someone of transgender status. It is not clear how a court or tribunal would deal with this given that the organisation would have to argue that even though the person may legally be a woman, they are entitled to exclude them on the basis that they have changed gender, which could be direct discrimination.
If the changes to the GRA go through, this issue is likely to arise more frequently than is currently the case and clear guidance will be needed for employers and service providers. One thing that is unlikely to change however, is the fundamental right of trans people to privacy about their transition to a new gender. Trans people should not be routinely asked to produce their GRC as evidence of their legal gender and it should be noted that if an employer has received information about a person's application for a GRC or their transgender status in an official capacity (such as through a recruitment process) it is a criminal offence to disclose that information to any other person.
For further guidance on handling transgender issues in the workplace see: Creating a Transgender Inclusive Workplace.