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It is important that trustees are aware of the law relating to people who are transgender and those who identify as non-binary so that they can ensure compliance with their legal obligations and operate inclusively.
Here we provide a general guide to charities and trustees so that they can be mindful of these issues.
Who are transgender and non-binary people?
At birth we are assigned a gender based on biological sex. For many of us, we do not question our gender identity but for some people, it is not so simple. If a person is referred to as “transgender” or “non-binary” they do not identify with the gender they were assigned at birth. By way of example, a trans-woman will have been assigned ‘male’ at birth due to her biological sex but she identifies as a woman. A person that identifies as non-binary identifies as neither male nor female.
Equality Act 2010 (“the 2010 Act”)
Under the 2010 Act, the general principle is that you must not discriminate against a person based on a protected characteristic. These include sex and gender reassignment.
Gender reassignment is defined as a person who is undergoing, proposing to undergo or has undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes. This means that the 2010 Act protects people from discrimination at any stage of their journey to change their gender right from the point of their initial declaration that they would like to identify and start living as another gender. The person concerned does not need to be in the surgical process of gender reassignment or having hormonal therapy with endorsement from a medical professional in order to have warranted this protection.
In contrast, the Gender Recognition Act 2004 provides that a person must have satisfied the following conditions for legal recognition as assigning their gender (known as a Gender Recognition Certificate):
- is at least 18 years old;
- has lived fully for two years in their acquired gender and intends to do so permanently;
- has gender dysmorphia; and
- has obtained two medical reports from both a GP and a gender specialist confirming their diagnosis and detailing any transition-related medical treatment.
A summary of the various issues that your charity should be mindful of is:
- if you are restricting benefits to persons who share a protected characteristic, check that your charity’s governing document permits the restriction and that this accurately reflects the charity’s current work;
- consider if it is appropriate/permissible to restrict services or membership of your charity because of a protected characteristic;
- if your charity’s objects restrict it to working with men or women, be careful how you define these terms and who you do/do not provide services to;
- ensure that the duty of care owed to beneficiaries/service users is appropriately followed including giving due consideration about communal accommodation/facilities;
- review safeguarding policies to check gender references; and
- ensure data privacy of transgender beneficiaries, employees and volunteers.
This is a complex and developing area of law. If your charity is wrestling with any of these issues we would advise that you take appropriate legal advice.
For more information
If you have any queries regarding the employment of transgender or non-binary people, please speak to Matt Wort.
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