Who is protected from transgender discrimination?
All trans teachers and educational professionals have specific protection from discrimination at work on grounds of sex and transgender status under the Equality Act 2010, and from the unlawful disclosure of transgender status. You are protected whether you are a man or a woman, before, during or after your gender reassignment. You are protected if you live your life in the gender opposite to your birth gender, whether or not you are under medical supervision. Discrimination because you are perceived as proposing to undergo, to be undergoing or to have undergone gender reassignment, or because you associate with someone who is proposing to undergo, is undergoing or has undergone gender reassignment, will be unlawful. You are protected whether you are permanent, fixed-term, full-time, part-time, supply or agency.
Your colleagues, managers and governors are prohibited from discriminating against you. If you are an agency worker on a day-to-day or longer term contract, your agency and the hirers for whom you are working are prohibited from discriminating against you.
What is transgender discrimination?
Gender reassignment is the medical and social process whereby you change your birth sex to match your gender identity. The term includes any part of the process.
Treating you less favourably at work than another colleague in similar circumstances on grounds that you propose to undergo, are undergoing or have undergone gender reassignment would be discriminatory. There is no need for you to show that you propose to or have undergone surgery or hormone treatment.
The protection extends specifically to absences from work to enable you to undergo gender reassignment. You must not be treated less favourably than you would have been treated had you been absent for another reason such as sickness or injury. Any rules on absences from work must be applied equally.
When am I protected from transgender discrimination?
Protection starts from the time that you propose to undergo gender reassignment rather than when any treatment actually starts.
You are protected from transgender discrimination before, during and after your employment. There should be no unlawful discrimination in recruitment including advertisements, shortlisting and interview procedures; pay including pensions; terms and conditions of employment; access to training; opportunities for promotion; transfers; dismissals; and after your employment has ended, for example, in the provision of references.
What sort of treatment is covered?
A refusal to accept your acquired gender would be discriminatory.
Refusing to appoint you to a post in a school or college due to concerns about parents' reactions would be discriminatory. Disciplining you for being absent for a month to undergo gender reassignment would be discriminatory if your colleagues are not disciplined for being off sick for a month. If you are treated less favourably on the basis that you have changed your appearance to match your gender identity, this may be unlawful.
Subjecting a teacher or educational professional to verbal or physical harassment on grounds of transgender status is unlawful. The NEU has produced a separate factsheet, Transgender Harassment.
What sort of treatment is not covered?
Treatment that is nothing to do with your transgender status, which the employer can show is wholly and genuinely for a non-discriminatory reason, or treatment which lawfully can be justified by the employer, will not be unlawful. Treatment that you might feel is unfair will not necessarily be discriminatory.
The legal definition is limited to gender reassignment and does not cover discrimination on grounds that you are, for example, a man or a woman or a transvestite person. If you are treated less favourably on grounds of your birth sex or your acquired sex, this is sex discrimination not transgender discrimination.
Employers may use 'positive action' to encourage applications for vacancies from groups of people who are under-represented in the workforce or at a particular grade in the workforce. Employers may use ‘tie-break’ provisions to appoint an individual from an under-represented group if two candidates are as qualified as each other for a post. Contact the NEU if you need advice on an employer's use of positive action.
Employers sometimes specify that it is an occupational requirement that a post is held by an individual with a particular equality characteristic. This option is rarely used in the education sector but contact the NEU if you think that it has been used inappropriately to your disadvantage.
What should I do if I think that I have been discriminated against?
Gather all the written evidence that you have, for example, job adverts, letters, emails and relevant screenshots. Keep a diary of all incidents of less favourable treatment including dates, times, places, the names of any witnesses and your response to the conduct or behaviour.
It is not always immediately clear whether certain treatment is on grounds of transgender status or for some other genuine reason so it is sensible to record all the treatment you are concerned about. An employer may or may not intend to discriminate against you or may try to cover up discrimination against you. The employer should work with the union to find out the real reason for the treatment, to stop the treatment if it is discriminatory and to secure appropriate action, for example, to obtain a full written apology or to secure a pay award that you have been denied.
Ask your workplace rep or school or college office for copies of relevant workplace policies, for example, pay policies, capability procedures, redundancy policies. The NEU urges all employers to adopt policies and procedures which prohibit unlawful discrimination and which allow employers to identify and tackle any discrimination fairly and quickly.
Discuss your concerns with your workplace rep. Your colleagues may have made similar complaints and you may be advised to tackle the issue with them collectively.
You or your rep might decide to contact the union for further advice. The NEU will be able to advise what steps you should take. You may be advised to lodge a formal grievance or to lodge a collective grievance with your colleagues. This may resolve the issue. In rare cases you may be advised to take the matter to an employment tribunal. The objective in all cases will be to stop any discrimination and allow you to continue working in a professional environment free from discrimination.
What if the discrimination or harassment has made me ill?
Follow the advice in the previous answer on gathering information and seeking advice. Keep a record of how you believe discriminatory treatment or harassment has affected your health, eg your symptoms and any absences from work. You are advised to see your GP and to let your employer know in writing that the treatment at work is affecting your health. The union can help you write this letter. If you believe that the stress of discrimination or harassment at work has led to depression, an anxiety disorder or psychosis, you may be suffering from a recognised psychiatric illness. If so, you should seek immediate advice from the union. See contact details at the end of this factsheet.
What should my employer or agency do if I complain about discrimination?
Your employer or agency should investigate your complaint, stop any discrimination, take appropriate action and prevent it from happening again to you or someone else. Employers in the education sector should comply with the public sector equality duty to eliminate discrimination and advance equality.
What if my employer treats me worse after I have raised the issue?
You should contact your workplace rep if you are subjected to detrimental treatment in retaliation or as punishment for raising a complaint of discrimination. This is called 'victimisation' and is prohibited by the Equality Act.
What more can I do to protect myself and colleagues from discrimination at work?
Employers in the education sector have a statutory duty to be proactive in eliminating discrimination and promoting equality of opportunity for staff and pupils. They must assess the impact of their policies and procedures on the people affected by them and take steps to remove any barriers that come to light where it is proportionate to do so. Contact your workplace rep, branch secretary or local equality officer if you want to get involved in reviewing the equality impact of policies and procedures in your workplace.
Make sure that you receive information about NEU equality events and conferences and about the equality constituency seat elections for the national executive. If you have not told the union about your ethnicity, sexual orientation or disability status, you may miss out on important information. Update your membership details to ensure you are fully informed. The information that you provide will remain strictly confidential. The data will form the basis of anonymous statistical reports which will help identify trends in workplaces and barriers to participation in the union's structures.
You are not alone in this union
When you read through this document you may have questions about what happens in your particular school or workplace, and there may be collective issues that affect other members. In most circumstances, you should initially discuss the matter with your workplace rep, as they will know whether similar concerns have been raised by other members. If you do not have a rep at the moment, it would be a good idea to get members together to elect one. Further advice on this is available at: neu.org.uk/becoming-a-rep
Although you may sometimes feel that you are the only person affected by or concerned about a particular issue, in reality this is seldom the case. Any difficulties you may experience are likely to be linked to wider conditions at your workplace and as a member of the NEU you have the advantage of being able to act collectively with your colleagues. This should give you the confidence of knowing that you have the weight of the union behind you.
Equality and Human Rights Commission (EHRC)
Guidance on transgender equality
Trades Union Congress (TUC)
Guidance on transgender equality
Advisory, Conciliation and Arbitration Service (ACAS)
Guidance on transgender discrimination