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Check if a business has discriminated against you because you’re transgender

This advice applies to Scotland

Businesses and services aren’t usually allowed to treat you differently because you’re transgender. The law that says this is the Equality Act 2010.

The Equality Act says businesses can’t discriminate against people because of things like their age and race. These things are called ‘protected characteristics’.

As a trans person, you have the protected characteristic of ‘gender reassignment’.

Gender reassignment means you:

  • are planning to transition from the sex you were assigned at birth to a different sex

  • are in the process of transitioning 

  • have already transitioned

Transitioning could include things like changing your name, pronouns or the way you dress - you don’t need to have had medical treatment.

If you’re non-binary

‘Non-binary’ describes people who don’t identify as a man or a woman. 

The law says you have the protected characteristic of gender reassignment if you’re transitioning between sexes. It doesn’t mention gender or gender identity. 

If you want to take a business to court for discrimination, you might still be able to show the protected characteristic applies to you.

A non-binary person successfully argued they had the protected characteristic of gender reassignment at an employment tribunal in 2020. 

The judge at the tribunal said the characteristic should include people transitioning away from their assigned sex - even if they aren’t going to transition to a different sex.

Other courts don’t have to follow this decision - it's up to the judge on your case to decide if the protected characteristic of gender reassignment applies to you.

Make sure your solicitor knows about this case if you decide to take a business to court for discrimination. The name of the case is Ms R Taylor v Jaguar Land Rover Ltd. You can read the full employment tribunal decision on GOV.UK

You can read why the judge decided non-binary people have the protected characteristic of gender reassignment in paragraph 178 of the 'Reasons' document.

If a business refuses to serve you

If a mixed-sex service refuses to serve you because you’re trans, they have discriminated against you. 

When you use a service for only men or women, you should be able to use the service that matches your gender identity. If a business doesn’t let you use a service that matches your gender identity, it might be discrimination. 

In very restricted circumstances, a business offering services for only men or women can provide the service to you in a different way.

If the business can’t provide the service to you in a different way, they might exclude you from the service entirely.

If the business makes you feel intimidated or humiliated, it might be harassment - this is a type of discrimination. Businesses are never allowed to harass you. Find out more about harassment.

When businesses can treat you differently

The Equality Act says a business can only treat you differently because you’re trans if it’s a ‘proportionate’ way of achieving a ‘legitimate aim’. This is a legal test called ‘objective justification’. 

A legitimate aim could be safeguarding the wellbeing of everyone who uses the service - including you.

The decision to treat you differently mustn’t be based on ignorance or prejudice - these are not legitimate aims. 

The way the business treats you differently must be proportionate. This means the business: 

  • could only meet their aim by treating you differently

  • didn’t treat you more differently than was needed to meet their aim

A business can’t decide they have objective justification for treating you differently - only a court can decide this. It’s likely to be difficult for the business to prove they have objective justification. If you have a gender recognition certificate, it might be harder for a business to prove they have objective justification.

This law can be confusing - if you’re not sure if a business has discriminated against you, call the Equality Advisory Support Service helpline.

Example

Sabine is a trans woman who applies for women-only group therapy. The organisers say they wouldn’t be able to meet the needs of other people using the service if a trans woman was included.

Sabine thinks this is discrimination, so she takes the organisation to court.

The court will ask the organisation to prove that excluding Sabine is a proportionate way for them to meet a legitimate aim.  

The court will then decide if the organisation has proved they have objective justification.

If the court decides the organisation doesn’t have objective justification, it means they discriminated against Sabine by excluding her from the service.

If the court decides the organisation does have objective justification, it means what happened to Sabine wasn’t discrimination - according to the law.

If you have a gender recognition certificate 

If a business asks for evidence of your legal sex, you can use your birth certificate. You shouldn’t need to show your gender recognition certificate (GRC).

If they ask to see your GRC, this might be discrimination - they’re treating you differently from other people because you’re trans. 

It’s illegal for businesses to tell other people you’re trans without your consent - they could get a fine of up to £5,000. You can find out more about your right to privacy as a trans person on the Galop website.

Services for trans people

In some situations, businesses can offer a service to people who share a protected characteristic to help them overcome disadvantage. This is called 'positive action'. 

For example, many trans people avoid swimming because they're worried about discrimination. A leisure centre could offer weekly swimming sessions for trans and non-binary people only, to help them overcome this disadvantage.

If you need to use a service that doesn’t match your gender

You might need to use a service that doesn’t match your gender identity. For example, a trans woman might need a prostate exam at a clinic advertised for men or a trans man might need to use postnatal services advertised for women.

If the business doesn’t offer the service to you in a way that protects your dignity and privacy, it might be discrimination.

If you’ve been discriminated against

If you think a business has discriminated against you because you’re trans, there are things you can do to take action against them. For example, if you think the business has broken the Equality Act, you could take them to court.

You can take action even if the business hasn’t broken the Equality Act - for example, you could make a complaint.

You can:

Get more help

If a business has refused to serve you or made you feel unwelcome because you’re trans, you can:

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