The American and British public’s views on LGBT issues are clear on the need to give protection to the transgender community and the US Supreme Court’s decision reflects this shift in public attitudes. In the UK, the Equality Act 2010 protects transgender people against discrimination in the workplace. Nonetheless, American and British transgender people still experience profound discrimination in every area of their lives. The Trump administration and Boris Johnson’s government have been criticised for their recent actions affecting transgender people. It signifies we still have far to go until transgender individuals possess the legal protections and freedoms to live their lives with equality, dignity and respect.
Bostock v Clayton County and transgender rights in the US
In a surprise decision on 15 June 2020, the US Supreme Court ruled that to fire someone on the basis of sexual orientation or gender identity was a form of sex discrimination and therefore illegal. The judges ruled that the Civil Rights Act 1964 (the 1964 Act) also applies to gay and transgender people, meaning employers cannot fire them because of those characteristics. Until that judgment, employers in 27 states could legally fire a gay or transgender person because of their sexual orientation or gender identity.
The Supreme Court’s ruling arose from three separate cases where gay and transgender workers said that they had been fired because of those characteristics. Under Title VII of the 1964 Act, discrimination on the basis of “race, colour, religion, sex, or national origin” is banned. The Trump administration argued that Title VII does not protect gay and transgender people. Two conservative justices joined the Supreme Court’s four liberal justices in a 6-3 decision to rule that the ban on “sex” discrimination in the 1964 Act includes discrimination against gay and transgender people. In the majority opinion, Justice Neil Gorsuch (a Donald Trump appointee) said that:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids”.
It may not come as a surprise that the Trump administration is actively reducing legal protections for transgender Americans. It was only a matter of days before the Supreme Court’s decision that the Trump administration finalised a regulation rolling back protections against discrimination in health care for transgender people. Under prior regulations interpreting section 1557 of the Affordable Care Act (commonly known as “Obamacare”), patients were formerly protected from discrimination on the basis of gender identity.
The Equality Act 2010, the Gender Recognition Act 2004 and transgender rights in the UK
In the UK, the Equality Act 2010 (the 2010 Act) protects LGBT people from direct discrimination, indirect discrimination, harassment and victimisation at work. Gender reassignment is a “protected characteristic” under the 2010 Act. The Act states that “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.”. The Gender Recognition Act 2004 (the 2004 Act) is also part of the legal framework granting rights to transgender people in the UK. Under the 2004 Act, transgender individuals can obtain a Gender Recognition Certificate (GRC) that legally recognises their gender identity and amends their birth certificate in accordance with their gender identity. Obtaining a GRC can be an intrusive, expensive and time consuming process.
In 2017, the then Prime Minister Theresa May announced proposed reforms to the 2004 Act to allow transgender people to change their birth certificates without the need for a medical diagnosis of gender dysphoria, enabling them to self-identify. According to a leaked paper reported on by the Sunday Times earlier this month, the government has now “ditched” these plans. This means that a change in birth certificate still requires medical approval. The government has also said it will “protect” female-only spaces, but that gender will be determined by anatomy. Furthermore, it has stated that it would introduce national guidelines to counter the so-called rise of gender-neutral toilets.
The leaked paper is said to be part of the government’s long-delayed response to 2018’s public consultation on the 2004 Act. The government has not yet commented on the leak or its accuracy, but it is expected to publish its response to the consultation by the end of July 2020. The apparent decision to drop the reforms has been widely condemned by human rights campaigners and LGBT+ groups across the political spectrum, who warned that this could result in the UK slipping further down the European rankings for LGBT equality.
There is still a long way to go before we have full acceptance of LGBT rights in the UK and the US, but it is clear that public attitudes are changing. The increasing awareness around Pride Month helps businesses focus on the need to lead by example to support the fight for equality and encourage policy and decision-makers to promote full respect for the rights of LGBT people. Hausfeld’s Diversity and Inclusion Committees on both sides of the Atlantic promote training and events to bring awareness to diversity and inclusion in the workplace.