gender reassignment harassment

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DOL Policies on Gender Identity: Rights and Responsibilities

Since the Department of Labor's (DOL's or the Department's) earliest years, it has been committed to promoting equal opportunity in employment. This commitment, which has grown     significantly over time, necessarily extends to all DOL employees and applicants for DOL employment. In 2020, the Supreme Court ruled in Bostock v. Clayton County , 140 S. Ct. 1731, that discrimination based on sexual orientation or gender identity constitutes discrimination "because of . . . sex" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). On January 20, 2021, President Biden reaffirmed and applied these protections by issuing an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. 1

Why do the Department's policies explicitly prohibit discrimination and harassment based on gender identity?

The Department's policies reaffirm DOL's commitment to fair treatment of, and equal opportunity for, all people. Policies prohibiting discrimination based on transgender status, gender identity, or gender expression create the reasonable expectation of an environment where all employees and applicants for employment are evaluated by their performance, rather than by their gender identity or expression or others' perceptions thereof. 

Further, DOL's policies are consistent with the policies of other Federal agencies, such as the Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), and Office of Personnel Management (OPM), including OPM's Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace . 2 DOL's policies also comport with Executive Order 13672 and 13988, which further prohibit discrimination in the civilian federal workforce on the basis of gender identity.

Discrimination, including harassment, based on gender identity or expression is sex discrimination. In 2020, the Supreme Court in Bostock v. Clayton County affirmed this interpretation, cementing protections for transgender and non-binary workers.

Studies have shown that transgender and non-binary people face disproportionate amounts of discrimination in all areas of life, notably in employment. A 2015 study by the National Center for Transgender Equality indicated that 77% of transgender respondents who had a job in the preceding year reported taking steps to avoid mistreatment at work, such as hiding their gender transition at work or quitting their job. 3 In this same study, nearly half (47%) said they did not ask their employer to refer to them with correct pronouns (such as he, she, or they) out of fear of discrimination. Non-binary respondents (66%) were nearly twice as likely to avoid asking to be referred to by their correct pronouns compared to transgender men and women (34%). These statistics underscore the   importance of the Department creating a safe environment for all of its employees.

Employees' and Applicants' Rights

Who is protected from discrimination based on gender identity or expression? Discrimination based on gender identity or expression can affect anyone. Policies barring these forms of discrimination not only protect those who openly identify as transgender, femme, masc, or non-binary, but they also protect anyone who might express their gender in any way that does not conform to preconceived notions about how people of a particular gender should express themselves. Over 30 years ago, the Supreme Court in Price Waterhouse v. Hopkins ruled that these policies 4 also protect  people against sex stereotyping – for instance, women who some people think are "too masculine" or men who some people think are "too feminine."

DOL policies barring discrimination and harassment on the basis of sex protect employees and applicants for employment from being harassed, denied employment or promotion, or otherwise subjected to adverse treatment because they do not conform to societal gender expectations.

What are my rights under DOL's gender identity policies? DOL employees and applicants for employment have the right to experience a workplace free of discrimination, including harassment. If you believe you are being subjected to harassing conduct, please contact your Agency Workplace Equality Compliance Office (WECO), which processes allegations of harassing conduct in accordance with DOL's policy and procedures with the goal of stopping the harassing conduct before it becomes severe or pervasive, and a violation of the law. If you believe that you have experienced unlawful disparate treatment or a hostile work environment (harassing conduct that is severe or pervasive), you should contact the Civil Rights Center (CRC) , which is responsible for ensuring nondiscrimination within the Department and processing discrimination complaints in accordance with the Federal Sector Equal Employment Opportunity (EEO) Complaint Processing Regulations, found at 29 C.F.R. Part 1614. A complaint filed with your Agency WECO is not the same as filing a complaint with CRC. The two processes are distinct and serve different purposes. The mission of your Agency WECO is to serve as an agency-support mechanism, including by advising agency managers on EEO issues and preventing harassing conduct from becoming so severe or pervasive as to constitute a hostile work environment. The mission of CRC is to serve as a neutral agency within the Department and to promote justice and equal opportunity by acting with impartiality and integrity in enforcing various civil rights laws.  CRC's Office of Internal Enforcement (OIE) administers the Department's EEO program by counseling, facilitating mediation, investigating, adjudicating, and remedying complaints of alleged discrimination filed by DOL employees and applicants for DOL employment. CRC may be reached by phone at (202) 693-6500 (voice) or (800) 877-8339 (Relay), or by e-mail at [email protected].

Workplace Equality Compliance Office (WECO)

When to contact.

• Contact if you believe you are being subjected to harassing conduct 5
• Initial incidents that are unwelcome and unprofessional and based on a protected category
• Conduct that may violate the harassing conduct policy, is not necessarily a violation of the law and would rise to the level of a Hostile Work Environment that is severe or pervasive
• Support agency, including in compliance, settlement/alternative dispute resolution (ADR), and training
• Advise and guide agency managers on EEO issues
• Inquire into allegations of harassing conduct
• Prevent harassing conduct from becoming severe or pervasive
• Cessation of harassing conduct
• Reassigning or relocating alleged harasser/victim
• Altering work hours or telework schedules to avoid contact
• Any interim measures must not unduly burden alleged victim
• Contact if you believe that you have experienced unlawful disparate treatment or a hostile work environment (within 45 days of the alleged action)
• Unlawful Disparate treatment includes the denial of terms, conditions, and privileges of employment, such as, termination, suspension, denial of leave, poor performance appraisal, nonselection/nonpromotion, or denial of a reasonable accommodation
• "Hostile work environment" means harassing conduct that is severe or pervasive; it can also mean a single egregious incident occurred.
• Egregious and offensive conduct
• Retaliation for opposing discriminatory or harassing conduct
• Single use of a highly charged epithet that dredges up the history of discrimination
• Maintain neutrality; subject to oversight from the EEOC
• Authorized to order findings of discrimination against the Department, including ordering corrective relief
• Promote justice and equal opportunity
• Administer Department's EEO program
• Non-pecuniary damages attributed to emotional pain and suffering
• Pecuniary damages attributed to losses caused by discriminatory conduct
• Attorney fees
• Restoration of leave
• Other forms of equitable relief

Responsibilities of Managers and Supervisors

Communicate clearly. Managers should talk and set a good example with employees about what type of behavior is lawful and appropriate in the workplace. They should make clear that employees should respect the gender identity and expression of all coworkers and customers. To that end, managers should discuss appropriate behavior with employees like using correct pronouns for coworkers and customers and speaking up if transgender and non-binary coworkers are demeaned because of their gender identity or expression. Managers should also make clear what consequences employees will face if they violate the law, up to and including removal.

Encourage your staff to report attempts at mockery, harassment, or otherwise prohibited conduct, including misgendering.

Lead by example. The most effective way for a manager to set the tone in the workplace is to lead byexample. Treat transgender and non-binary employees, customers, and others with whom you may come in contact with dignity and respect. If an employee or customer approaches you regarding being transgender or non-binary, or if other employees learn that a co-worker, customer, or other person with whom they interact is transgender or non-binary, there are many ways in which your words and actions can lead to a welcoming and safe atmosphere. Some specific examples:

Names and Pronouns. Refer to each person by the name and the pronoun(s) by which the person wants to be referred . If you don't know, ask in a tactful and respectful way. For example, you can say, "what pronouns do you use?" or you can introduce yourself with the pronouns you use, which may prompt someone to share the pronouns they use. Continued intentional misuse of a person's name and pronouns – also known as misgendering – may breach the person's privacy, may put them at risk of harm, and in some circumstances, may be considered harassment.

Inclusive Language: Whenever possible, use gender-neutral language to avoid assumptions about employees' sexual orientation or gender identity. For instance, use words like "spouse" instead of gender-specific terms like "husband" or "wife," or the singular third-person pronoun "they" instead of "he or she" when referencing a hypothetical or anonymous person, or when you don't know the individual person's pronouns. In addition, be mindful in referring to individuals' identity, gender, partners, and relationships. Someone's sexual orientation or gender identity is one aspect of their identity, but not what may fully define them. 

Confidentiality and privacy .A person's transgender or non-binary status should be treated with sensitivity and confidentiality, just as one would treat any other personal life experience. A transgender or non-binary employee may or may not want to discuss their gender identity or expression with co-workers. Respect the wishes of the employee.

Even if a transgender or non-binary employee has disclosed their gender identity or other personal information, such as information about their transition, they still may wish to keep other personal information private. Respect the wishes of the employee, and do not share information about the employee's status without their permission. In addition, remember that medical information about individual employees is legally protected, and disclosure should be limited. Do not ask the employee questions about their medical information or treatment unless such questions are necessary to address any workplace issues that may arise with the employee's medical plans.

Regardless of the level of disclosure that a transgender or non-binary employee is comfortable with, do not permit employees to engage in gossip or rumor-spreading about any employee and especially not about personal issues like gender identity or expression.

Train employees . Managers should offer resources for employees to educate themselves about treating all of their colleagues, customers, and others with dignity and respect. Trainings enable employees to ask questions in a moderated space and are an effective way of preventing discrimination. Trainings should inform employees that it is their responsibility to report acts of discrimination or harassment and to address derogatory language, jokes, and behavior.

Provide support . Managers and supervisors should also provide support for transgender and non-binary employees in other ways:

Dress and appearance. As part of a transition process, an employee might alter their clothing style. Additionally, their physical appearance may change. Agencies should not maintain dress codes that restrict employees' clothing or appearance on the basis of gender. Dress codes must not interfere with a person's expression of gender identity. Transgender and non-binary employees must be allowed to comply with dress codes in a manner consistent with their gender identity or gender expression.

Restroom access. The Department is guided by OSHA on the use of sanitary and related facilities by transgender and non-binary employees in the federal workplace. 6 OSHA's guidance says employees should be permitted to use the facilities that correspond with their gender identity. That decision should be left to the employee to determine the most appropriate and safest option for them.

Employees should not be required to undergo, or provide proof of, any medical procedure to use facilities designated for use by a particular gender. Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee's work station. To ensure equal access, all single-stall restrooms in buildings or facilities controlled by DOL should be accessible to all employees and have gender-neutral signage.

Identity documentation. Consistent with the Privacy Act, the records in an employee's Official Personnel Folder (OPF) and other employee records (pay accounts, training records, benefits documents, etc.) should be changed to show the employee's updated gender marker and legally changed name, consistent with the employee's gender identity. Employees should also be permitted to change any identity documentation, such as ID badge, email account, etc. as well upon obtaining a legal name change.  Less formal identity documentation such as business cards or name plates may be changed without legal documentation. 

To initiate a name change, employees will need (1) a copy of their driver's license or other legal photo identification and (2) their social security card, or confirmation from the Social Security Administration that their name has legally been changed, and initiate the name change action with the Office of Human Resources. Employees are encouraged to talk with their employee benefits specialist in the Office of Human Resources or review the guidance about name changes on LaborNet.  

Sick and medical leave. Employees receiving medical treatment as part of their transition may use sick leave under DOL regulations. Employees who are qualified under the Family Medical Leave Act may also be entitled to take medical leave for gender-affirming care.

During the hiring process, hiring managers and supervisors should be sensitive to the possibility that applicants may have updated their legal documents to reflect their gender identity . The name and gender marker on the application should correspond with the person's current usage or legal status; however, background or suitability checks may disclose a previous name that is typically associated with a particular gender that appears different from the one the applicant is currently expressing. In such cases, hiring managers should tactfully ask whether the applicant was previously known by a different name and confirm with the applicant the name and pronouns that should be used when checking their references.

Should you have further questions, please contact CRC at (202) 693-6500 (voice) or (800) 877-8339 (Relay), or by e-mail at [email protected].

Gender Identity: Key Terminology 7

What is the difference between sex and gender? Sex ( i.e., male, female, or intersex) is assigned at birth based on a combination of a baby's biological characteristics, including chromosomes, hormones, and reproductive organs, and is originally documented on a person's birth certificate. The World Health Organization  defines gender as the "socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate" based on sex.

Agender: An identity under the nonbinary and transgender umbrellas. Some agender individuals have no gender identity, although some define agender as having a gender identity that is neutral.

Bigender: An identity under the nonbinary and transgender umbrellas. Bigender individuals identify with more than one gender.

Cisgender: A person whose gender identity matches with the sex they were assigned at birth. 

Gender expression: How a person represents or expresses one's gender identity to others, often through behavior, clothing, hairstyles, voice, or body characteristics. All people have a gender expression.

Genderfluid: Refers to an identity under the nonbinary and transgender umbrellas. Genderfluid individuals have different gender identities at different times. A genderfluid individual's gender identity could be multiple genders at once, and then switch to none at all, or move between single gender identities. For some genderfluid people, these changes happen as often as several times a day, and for others, monthly, or less often. 

Gender identity: A person's internal sense of being male, female, or something else such as agender, binary, gender fluid, gender nonconforming, genderqueer, or nonbinary. Since gender identity is internal, one's gender identity is not necessarily visible to others. All people have a gender identity.

Gender nonconforming (GNC) or Genderqueer: Terms for people whose gender identity and/or expression is different from societal expectations related to gender.

Gender-affirming care: An inclusive term for treatments and procedures that help an individual align their physical and/or other characteristics with their gender identity, often called transition-related care.

Intersex: Refers to a person who is born with sexual or reproductive anatomy that does not fit within the sex binary of male or female, encompassing a variety of sex expressions. 

LGBT or LGBTQ: Shorthand for lesbian, gay, bisexual, transgender, and queer people.

Nonbinary: A term used by people who identify as neither entirely male nor entirely female. This can include people who are agender, bigender, genderfluid, gender nonconforming, and genderqueer, among others. Some nonbinary people identify as transgender, while others do not.

Pronouns: Terms used to substitute a person's name when they are being referred to in the third-person. Some common pronouns include he/him/his, she/her/hers, and they/them/their(s). A person's gender should not be assumed based on their pronouns. 

Queer: An umbrella term which embraces a variety of sexual preferences, orientations, and habits of those who are not among the exclusively heterosexual and monogamous majority. Although the term was once considered derogatory and offensive, the community has reclaimed the word and now uses it widely as a form of empowerment. Younger generations tend to use the term "queer" for reasons such as the fact that it does not assume the gender of the queer person or the gender of any potential romantic partners, and/or in order to make a political statement about the fluidity of gender. 

Sexual Orientation: A person's identity in relation to whom they are attracted to. All people have a sexual orientation. Sexual orientation, gender identity, and gender expression are distinct components of a person's identity. Sexual orientation should not be confused with a person's gender identity or gender expression.   

Transgender: A broad term for people whose gender identity or expression is different from those typically associated with their sex assigned at birth. "Trans" is shorthand for "transgender." Note: Transgender is correctly used as an adjective, for example: "transgender people," "people who are transgender," "a woman who is transgender," etc. However, "transgenders" or "transgendered" are incorrect and disrespectful.

Transition: A broad term commonly used to refer to the ongoing process by which a person alters components of their gender expression and/or other personal characteristics to better align with their gender identity. A person's transition may or may not include a combination of social changes (e.g., name, pronouns, appearance and/or clothing), legal changes (e.g., legal name and/or legal gender markers), and medical changes (e.g., gender-affirming hormone therapy and/or surgeries). Note: Not all transgender and/or non-binary people want to transition or are able to access the resources necessary to do so. However, regardless of whether, how, or when a person takes any, some, or all of these actions, their gender identity is valid and should be respected and affirmed.

Transphobia: The hatred or fear of transgender, nonbinary, and gender nonconforming people. This sometimes leads to acts of violence and expressions of hostility. Transphobia is not confined to any one segment of society and can be found in people from all walks of life.

Two-Spirit: Contemporary umbrella term that refers to the historical and current First Nations people whose individual spirits were a blend of female and male spirits. This term has been reclaimed by Native American LGBTQ+ communities in order to honor their heritage and provide an alternative to the Western labels of gay, lesbian, or transgender.

1 Exec. Order No. 13988, 86 C.F.R. 7023 (2021). 

2 U.S. Office of Personnel Management (OPM), Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace , available at https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/guidance-regarding-employment-of-transgender-individuals-in-the-federal-workplace.pdf

3 National Center for Transgender Equality, 2015 U.S. Transgender Survey , (2015), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf, at 13 & 154.

4 See Price Waterhouse v. Hopkins , 490 U.S. 228 (1989).

5 There is no prescribed timeframe for raising concerns under this Policy and procedures with the Workplace Equality Compliance Office (WECO), although prompt reporting is strongly encouraged.  It is important to understand that it may be more difficult to investigate and address allegations that are aged.  However, the Department will review all allegations in an attempt to stop any harassing conduct, which is the only remedy available under this Policy and procedures. Filing a complaint with an EEO Counselor of the Civil Rights Center (CRC), however, must occur within 45 days of the last alleged incident of discrimination. Any incidents that occurred beyond the 45 days would still be considered under a theory of a hostile work environment, but not as an allegation of unlawful disparate treatment if the conduct affects a term, condition, or privilege of employment.

6 Occupational Safety and Health Administration, Best Practices: A Guide to Restroom Access for Transgender Workers , available at https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf .

7 National LGBTQ Task Force, LGBTQ+ Glossary of Terms , available at https://www.thetaskforce.org/wp-content/uploads/2019/06/Task-Force-LGBTQ-RJ-Glossary-of-Terms.pdf (last visited April 16, 2021).

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What does it mean for someone to have the protected characteristic of “gender reassignment” under the Equality Act 2010? The government, public bodies, many employers and even employment tribunals are often confused about this.

Having the protected characteristic of gender reassignment does not mean that someone’s sex has changed or give them the right to make other people pretend that it has. 

These FAQs cover the definition of the characteristic and who it covers – and what this means for employers and service providers. 

Download these gender reassignment FAQs as a PDF.

What is the protected characteristic of “gender reassignment”?

What does it mean to have this characteristic , who can have this characteristic , does having the protected characteristic of gender reassignment mean that a person must be treated as the opposite sex , does the equality act outlaw “misgendering”, is it harassment to “out” a person as transgender , can employers have policies which require people to refer to transgender people in particular situations in a particular way , what should employers and service providers do to avoid the risk of harassment claims , should schools have rules about “misgendering”.

The Equality Act 2010 at Section 7 defines the protected characteristic of “gender reassignment” as relating to a person who 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 law refers to this as being “transsexual”. But the term more commonly used today is “transgender” or “trans”. This broadly relates to anyone at any stage of a personal process. For example:

• A man tells his employer that he is considering “transitioning” and is seeing a therapist with the potential result of being referred for medical treatment.
• A man identifies as a “transwoman” without having any surgery or treatment.
• A woman identified as a “transman” for several years and took testosterone, but has now stopped and “detransitioned”.

The Equality Act protects people from direct and indirect discrimination, harassment or victimisation in situations that are covered by the Equality Act, such as in the workplace or when receiving goods or services.

Direct discrimination

Direct discrimination is when you are treated worse than another person or other people because:

• you have a protected characteristic
• someone thinks you have that protected characteristic (known as discrimination by perception)
• you are connected to someone with that protected characteristic (known as discrimination by association).

For example: an employee tells their employer that they intend to transition. Their employer alters their role against their wishes to avoid them having contact with clients.

The comparator is a person who is materially similar in other aspects but does not have the protected characteristic (“is not trans”). 

Indirect discrimination

Indirect discrimination happens when a policy applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. This is unlawful unless the person or organisation applying the policy can show that there is a good reason for the policy. This is known as objective justification .

For example: an airport has a general policy of searching passengers according to their sex. Everyone travelling needs to follow the same security procedures and processes, but it makes transgender travellers feel uncomfortable. This could be indirect discrimination, so the airport reviews its policy and changes it so that any passenger may ask to be searched by a staff member of either sex and have a private search, out of view of other passengers. 

Harassment is unwanted behaviour connected with a protected characteristic that has the purpose or effect of violating a person’s dignity or creating a degrading, humiliating, hostile, intimidating or offensive environment.

For example: a transgender person is having a drink in a pub with friends and is referred to by the bar staff as “it” and mocked for their appearance.

Victimisation

Victimisation is when you are treated badly because you have made a complaint of gender-reassignment discrimination under the Equality Act or are supporting someone who has made a complaint of gender-reassignment discrimination. For example:

For example: a person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.

The Equality Act also provides that if a person is absent from work because of gender-reassignment treatment, their employer cannot treat them worse than they would be treated if absent for illness or injury. 

Does a person have to be under medical supervision?

No. This was explicitly removed from the definition in 2010. Gender reassignment can be a personal process. 

Must they have a gender-recognition certificate or be in the process of applying for one?

No. The protected characteristic is defined without reference to the Gender Recognition Act.

Do they have to have made a firm decision to transition? 

No. Protection against discrimination and harassment attaches to a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process).

During the passage of the Equality Act, the Solicitor General stated in Parliament: 

“Gender reassignment, as defined, is a personal process, so there is no question of having to do something medical, let alone surgical, to fit the definition. “Someone who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself.  “At what point [proposing to undergo] amounts to ‘considering undergoing’ a gender reassignment is pretty unclear. However, proposing’ suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are lots of ways in which that can be manifested – for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away. Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That too, would mean they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them.” 

In the case of Taylor v Jaguar Land Rover , a male employee told his employer that he was “gender fluid” and thought of himself as “part of a spectrum, transitioning from the male to the female gender identity”. He said to his line manager: “I have no plans for surgical transition.” He started wearing women’s clothing to work, asked to be referred to by a woman’s name and raised a question about which toilets he should use. The Employment Tribunal concluded that he was covered by the protected characteristic. 

Can children have the protected characteristic? 

Yes. In the case of AA, AK & Ors v NHS England , NHS England argued that children who are waiting for assessment by the Tavistock Gender Identity Development Service (GIDS) do not have the protected characteristic as they have not yet reached the stage of proposing to transition. The Court of Appeal rejected this argument. It noted that the definition of “gender reassignment” does not require medical intervention and can include actions such as changing “one’s name and/or how one dresses or does one’s hair”.

The court concluded:

“There is no reason of principle why a child could not satisfy the definition in s.7 provided they have taken a settled decision to adopt some aspect of the identity of the other gender.”

It noted that the decision did not have to be permanent. 

Is “Gillick competence” relevant to the protected characteristic?

No. “Gillick competence” refers to the set of criteria that are used for establishing whether a child has the capacity to provide consent for medical treatment, based on whether they have sufficient understanding and intelligence to fully understand it.

Having the protected characteristic of gender reassignment (that is, being able to bring a claim for gender-reassignment discrimination) does not depend on having any diagnosis or medical treatment. Therefore Gillick competence is not relevant to the Equality Act criteria. 

No. There is nothing in the Equality Act which means that people with the protected characteristic of “gender reassignment” need to be treated in a particular way, or differently from people without the characteristic. 

Article 9 and 10 of the European Convention of Human Rights protect the fundamental human rights of freedom of speech and freedom of belief. 

In the case of Forstater v CGDE [2021] it was established that the belief that men are male and women are female, and that this cannot change and is important, is protected under Article 9 and in relation to belief discrimination in the Equality Act. 

This means that employers and service providers must not harass or discriminate against people because they recognise that “transwomen” are men and “transmen” are women. Employers and service providers cannot require people to believe that someone has changed sex, or impose a blanket constraint on expressing their belief. 

No. “Misgendering” is not defined or outlawed by the Equality Act. 

In general, people who object to “misgendering” mean any reference to a person who identifies as transgender by words that relate to their sex. This can include using the words woman, female, madam, lady, daughter, wife, mother, she, her and so on about someone who identifies as a “transman”, or man, male, sir, gentleman, son, husband, father, he, him and so on about someone who identifies as a “transwoman”. 

Any form of words may be harassment, but this depends on the circumstances and the purpose and effect of the behaviour. Harassment is unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person.   An employment tribunal would also consider:

• that person’s perception
• the other circumstances of the case
• whether it is reasonable for the conduct to have that effect.

Tribunals have emphasised that when judging harassment context is everything, and warned against a culture of hypersensitivity to the perception of alleged victims.

Employment tribunal judgments

As Lord Justice Nicholas Underhill found in Dhellwal v Richmond Pharmacology [2009], a case decided under the Race Relations Act:

“What the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section.”

In the Forstater case, the employment appeal tribunal said that it was not proportionate to “impose a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment”. It said that:

“ Whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could amount to unlawful harassment in some circumstances, it would not always have that effect. In our judgment, it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.”

In the case of de Souza v Primark Stores [2017] , a transgender claimant who went by the name of Alexandra, but whose legal name was Alexander, was found to have been harassed by colleagues who made a point of using the male form of name when they knew he did not want them to, but not by being issued with a “new starter” badge that showed his legal name. 

In the case of Taylor v Jaguar Land Rover [2020] , a male claimant who wore women’s clothing  to work was judged to have been exposed to harassment by colleagues saying “What the hell is that?”, “So what’s going on? Are you going to have your bits chopped off?”, “Is this for Halloween?” and referring to the claimant as “it”. 

Not necessarily. 

A person can be “outed” as transgender in two different ways: 

• Their sex is commonly known and recorded, but their transsexualism is not (for example a man who cross-dresses at the weekend and is considering transitioning is “outed” at work by someone who has seen them at a social event).
• They are disappointed in the expectation of being treated as one sex when they are actually the other (for example a person who identifies as a “trans woman” is referred to as male by a woman in a changing room).

In Grant v HM Land Registry [2011] , which concerned the unwanted disclosure that an employee was gay, Lord Justice Elias found that this did not amount to harassment: 

“Furthermore, even if in fact the disclosure was unwanted, and the claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

The perception (or hope) of transgender people that they “pass” as the opposite sex is often not realistic. Their sex is not in fact hidden, but is politely ignored by some people in some situations. It is not reasonable for them to be offended by other people recognising their sex, particularly if they are seeking access to a single-sex service. Acknowledging someone’s sex, particularly where there is a good reason, is unlikely to be harassment. 

In the first-instance case of Chapman v Essex Police , a transgender police officer felt embarrassed and upset when a police control-room operator double-checked his identity over the radio because his male voice did not match the female name that the operator could see. The tribunal did not uphold a complaint of harassment, finding that the claimant was “too sensitive in the circumstances”.

Yes, but those policies must be proportionate. Employers cannot have blanket policies against “misgendering”, but can have specific policies concerning how staff should refer to transgender people in particular situations. Organisations should recognise that these policies constrain the expression of belief, and therefore they should seek to achieve their specific aims in the least intrusive way possible.

When determining whether an objection to a belief being expressed is justified, a court will undertake a balancing exercise. This test is set out in the case of Bank Mellat v HM Treasury :

• Is the objective the organisation seeks to achieve sufficiently important to justify the limitation of the right in question?
• Is the limitation rationally connected to that objective?
• Is a less intrusive limitation possible that does not undermine the achievement of the objective in question?
• Does the importance of the objective outweigh the severity of the limitation on the rights of the person concerned?

For example: 

• A company provides a specialist dress service to transsexual and transvestites. The men who use the service expect to be called “she” and “her” and referred to as Madam. It is justified for the employer to train and require staff to use this language when serving customers. 
• Staff at a full-service restaurant greet customers as “Sir” and “Madam” as they arrive. The restaurant’s policy is that staff should use the terms which appear most appropriate based on gendered appearance, and to defer to customer preference if one is expressed. This is justified by the aim of creating the service and ambience that the restaurant owners seek to provide. 
• A public body assesses claimants for medical benefits, including individuals with mental-health conditions. It directs its staff to refer to claimants using the terms which the claimants prefer, including using opposite-sex pronouns when requested, in order to make them feel comfortable. However, it recognises that in recording medical information, assessors must be able to be accurate about claimants’ sex. This is justified by the aim of providing a service that is accessible and effective for vulnerable clients. 

The case of David Mackereth v AMP and DWP concerned a doctor who lost his job undertaking claimant health assessments for the Department for Work and Pensions because he refused to comply with its policy on using claimants’ preferred pronouns. The employer’s policy was found not to have amounted to unlawful harassment or discrimination against Dr Mackereth, in the particular circumstances of his job. However, the Employment Appeal Tribunal stated that “misgendering” would not necessarily be harassment: 

“Such behaviour may well provide grounds for a complaint of discrimination or harassment but, as the EAT in Forstater made clear, that will be a fact-specific question to be determined in light of all the circumstances of the particular case.”

Relevant considerations

In Higgs v Farmor’s School [2023] Mrs Justice Eady sets out the considerations that are likely to be relevant considering whether constraining the expression of a belief (“manifestation”)  in order to avoid harassment or discrimination is justified in the context of employment. These include:

• the content of the manifestation
• the tone used
• the extent of the manifestation
• the worker’s understanding of the likely audience
• the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
• whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
• whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;
• the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients
• whether the limitation imposed is the least intrusive measure open to the employer.

Employers cannot force employees to believe that people can change sex, or prevent them expressing that lack of belief except in limited circumstances. So what should employers do to protect transgender people from harassment, and themselves from liability? 

They should have ordinary policies against bullying and harassment, including jokes, name-calling, humiliation, exclusion and singling people out for different treatment.

They should seek to avoid putting people in situations they will reasonably experience as hostile or humiliating.

Ambiguous rules put people in situations where it is reasonable to feel offended. For example, an employer provides “female” toilets, showers and changing rooms, but allows some male staff in because they identify as transgender. This creates a hostile environment: 

• female staff are surprised, shocked, humiliated and upset to find themselves sharing with a colleague of the opposite sex
• male staff members who want people to treat them as women may be challenged or face comments that are intended to intimidate, humiliate or degrade them.

This was the situation faced by the Sheffield Hospital Trust , which had a policy that transgender staff could use opposite-sex facilities. It had to deal with the fall-out when women complained about seeing a half-naked male in their changing room and the male staff member sued for harassment after being questioned about this.

Rather than putting these two groups of people together in a environment where both will reasonably feel harassed, employers should have clear rules about facilities that are single-sex, and also, where possible, provide a unisex alternative for anyone who needs it, including people who feel that they have “transitioned away from their sex” and therefore do not wish to use single-sex facilities shared with members of their own sex. The EHRC last year provided guidance on single-sex services which encouraged clear rules and policies.

It should be made clear to people who have the protected characteristic of “gender reassignment” that having this characteristic does not mean it is reasonable for them to expect others to believe or pretend to believe they have changed sex, or for them to be allowed to break (or expect to be an exception to) rules that aim to protect the dignity and privacy of others. 

If a person breaks a clear rule against entering a space provided for the opposite sex, it is not reasonable for them to feel offended when this is pointed out. 

No. It would not be lawful for schools to have a policy that forbids, punishes or denigrates pupils who use clear words about the sex of other people (such as pronouns, but also boy/girl, male/female and so on), nor to require pupils to refer to some classmates as if they were the opposite sex.

• To do so constrains the freedom of speech of pupils in a way that is unjustified and discriminates against them on the basis of belief. 
• It is inconsistent with schools’ safeguarding duty of care , and with their record-keeping responsibilities, for staff to misrepresent the sex of pupils in their records or in introducing them to their peers. 
• In order to explain and enforce sex-based rules designed to keep children safe (such as who is allowed in which showers, toilets, dormitories or sports teams), schools must be able to use clear and unequivocal language. 
• It is not reasonable to expect that a child at school, or transferring between schools, can avoid being “outed” as the sex that they are . 

We do not think that any policy which tells teachers or pupils to lie about the sex of pupils, constrains them from using clear sex-based language or treats them detrimentally if they do would pass the proportionality test. It is an unreasonable constraint on speech that is neither required nor justified in order to avoid discrimination on the basis of gender reassignment. 

Schools form part of a system that is regulated at a national level. In England that system is the responsibility of the Secretary of State for Education. It is the responsibility of the Secretary of State to make this legal situation clear across the English school system by issuing the long-awaited DfE guidance. 

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Gender Identity Discrimination

Gender identity discrimination sometimes occurs in the workplace. Gender identity is the gender an individual personally identifies with, such as male, female, or nonbinary. Gender identity is not necessarily the gender or sex a person was assigned at birth – and not all people who identify with a gender other than their sex at birth consider themselves to be transgender. Gender identity is also a separate topic from sexual orientation .

Examples of gender identity discrimination in the workplace include:

• Firing or refusing to hire an employee due to their gender identity or gender transition
• Denying access to facilities available to other employees because an employee is transgender

There were no federal protections for gender discrimination until recently. In 2020, the Supreme Court held in Bostock v. Clayton County, GA that Title VII of the Civil Rights Act protects employees from discrimination based on their gender identity or transgender status. State laws may provide additional protections. 

To learn more about gender identity discrimination, refer to the Q&A below.

Employers should make an effort to understand certain terminology so that they can maintain a comfortable work environment. When in doubt, employers should simply ask their employees in a respectful manner to educate them. Employers should respect the pronouns their employees choose to go by. 

Some terms an employer might encounter include:

Gender identity.  This refers to the gender an individual chooses to identify with, regardless of their biological sex or sexual orientation. This may be male, female, nonbinary, or some other identification. 

Gender expression. Gender expression is how society expects persons in certain genders to perform. Not everyone conforms to this. For example, women typically have long hair, while men often have short hair.

Nonbinary. Nonbinary is one possible gender identity. Rather than identifying as a male or female, a person may be gender fluid or choose not to identify with any gender.

Transgender. Transgender is a term that may refer to a person who identifies with a gender other than the gender they were assigned at birth. Gender and biological sex do not always correlate. Employers should be cautious not to label any employee. 

Transitioning. This refers to the period when a person is in the process of switching their gender identity. It often involves changes to a person’s gender expression.

Gender identity discrimination means treating individuals differently in the workplace, or taking negative employment action against them because of their gender identity or gender expression.

Gender identity discrimination against transgender people in the workplace may include:

• Being fired when your employer finds out about your plan to undergo sex reassignment surgery.
• Being fired for cross-dressing outside the workplace if your employer finds out.
• If you as a transgender person attempt to wear clothing appropriate to your gender identity you may be disciplined, reassigned or terminated, based on a failure to conform to a company dress code policy that makes no effort to accommodate transgender individuals.
• Being refused access to workplace restroom facilities and harassed by coworkers and supervisors on the basis of your gender identity.
• Being denied equal treatment in public accommodations, which can affect your ability to successfully function in the workplace. For example, transgender people have been asked to leave restaurants, hotels, stores, medical facilities, and educational institutions. This discrimination may make it difficult, if not impossible, to successfully perform one’s job.

If any of these things have happened to you on the job, you may have suffered gender identity discrimination.

Title VII of the Civil Rights Act of 1964 protects employees and prospective employees from discrimination based on gender identity. In 2020, the Supreme Court held in Bostock v. Clayton County that the Act’s protections extend to discrimination based on gender identity and sexual orientation.

It depends.

The Americans with Disability Act ( ADA ) prohibits employers from discriminating based on disability . The ADA explicitly states that it does not apply to “transvestism,” “transsexualism,” or “gender identity disorders not resulting from physical impairments.” ( 42 U.S.C. § 12211 ).

However, a federal appellate court for the Fourth Circuit held in Williams v. Kincaid in 2022, that gender dysphoria is a protected condition under the ADA and Rehabilitation Act. This means that employees in states within that district are protected from disability discrimination if they have gender dysphoria. States in the Fourth Circuit are Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Other states may cite this ruling in the future.

Law in this area is still developing.

Harassment for gender identity is treated the same as harassment for any other discriminatory reason. Under Title VII, it is illegal for employers to discriminate based on sexual orientation or gender identity. Conduct may be considered harassment if it is offensive, unwelcome, and targeted at a protected characteristic – including gender orientation. Conduct is more likely to qualify as harassment if it is explicit and repeated. Harassment in the workplace can be from employers, co-workers, and others.

Visit workplacefairness.org for more information on sexual harassment. 

It depends. Jokes or slurs about your gender identity may be considered a form of sexual harassment, which courts have determined is a form of illegal discrimination. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Generally the conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. The EEOC notes that harassment can include offensive remarks about a person’s sex. For more information about hostile work environments, see our page on  sexual harassment .

Those who have gone through the process of transitioning in the workplace strongly recommend that you share your intention to transition with your employer in advance, in a face-to-face, one-on-one meeting. It’s not a good idea to surprise your boss by transitioning without an advance notice. Your boss should be part of the planning process: you will need your boss as an ally if you are to have a successful transition. Your management and others involved in the planning should become familiar with educational resources, including company policy and books on the subject.

It is recommended on the day of your transition that your employer hold a department meeting or discuss the transition in a meeting that has already been scheduled. Everyone in your work group with whom you interact often should be there. The manager of the work group (the department head, for example) should make the announcement, as it is important for the highest level manager in the group to show support.

Some other workplace issues that may need to be quickly resolved once you have started your transition include:

• a new company identification badge with your new name and photo;
• a new name tag on door/desk/cubicle;
• updating any organization charts, mailing lists, and other references to your old name;
• paperwork for the HR employee database, effective the day of transition, to change the following: new name; gender marker (‘M’ or ‘F’); computer handles and account IDs, if the old ID is inappropriate; e-mail address, if it contains the old name
• restroom use and communicating the decision to other employees;
• new introductions.

For more information about the transition process in the workplace, see  Checklist for Transitioning in the Workplace .

Although Bostock v. Clayton County, GA (S.C. 2020) extended Title VII to prohibit employment discrimination based on sexual orientation or gender identity, the Court did not address Title VII’s religious exemption. The exemption allows employers for religious organizations and religious schools to make employment decisions based on religion.

What is unclear, however, is whether religious employers can rely on this exemption to discriminate against LGBTQ+ persons. From the limited case law on the subject so far, it seems courts will look to determine whether the hiring decision was actually based on religious reasons or was instead based on some form of discrimination.

For example, a North Carolina court ruled in an employee’s favor in 2021 in Billard v. Charlotte Catholic High School . In that case, a substitute teacher at a Catholic school was fired after announcing his same-sex engagement on social media. The court determined that the school fired him because of his sexuality, not because his post advocated against Catholicism as the school had argued.

Employees may wish to work in clothing that conforms to their gender identity. Dress codes apply the same way to transgender and nonbinary employees as they do to everyone else. Employers may require uniforms and appropriate clothing. This includes, for example, asking men to shave beards and asking women to keep skirts or dresses at a certain length. They cannot, however, impose separate requirements on any one person or group of people, as that would discriminate.

For health and safety reasons, the Occupational Safety and Health Administration (OSHA) requires that employers allow all employees to have access to bathrooms. OSHA strongly recommends that all employees – transgender or not – have access to bathrooms that match their gender identity.

Currently, no federal law requires employers to address this in a specific way; Employers can legally choose to separate bathrooms for men and women or to have bathrooms that are available to anybody. If an employer has separate bathrooms for men and women, they must allow employees to use the bathroom that correlates with their gender identity. Transgender men should be allowed to use men’s bathrooms, and transgender women should be allowed to use women’s bathrooms. The same goes for any other facilities that are segregated by sex, such as locker rooms.

The Equal Employment Opportunity Commission ( EEOC) has successfully sued employers for sex discrimination for denying transgender employees access to the bathroom corresponding with their gender identity.          

See OSHA’s Guide to Restroom Access for Transgender Workers for more information.

Maybe. The answer depends on what an employer’s contract with the applicable health insurance company says. Although insurance companies cannot refuse to cover medically necessary gender affirming care, sex reassignment surgery is often not deemed to be necessary. This issue is dealt with by insurance, not employers.

A company may choose to adopt its own policy to provide such health benefits to employees even though they may not be required to otherwise. More and more employers are beginning to provide health benefits specific to transgender employees, such as by covering gender confirmation surgery.

The Equal Employment Opportunity Commission ( EEOC ) is a federal agency that may sue on behalf of employees who were discriminated against. The EEOC provides guidance for filing a discrimination complaint with itself or another authority.

Federal anti-discrimination laws are enforced by the EEOC. Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a fair employment, civil rights, or human rights commission or agency. For more information about your state and local agencies see our page on  filing a complaint .

To file a discrimination complaint or view remedies available to you, please contact your state or local authority or an attorney . Visit workplacefairness.orgfr more information on filing a legal claim for discrimination .

If you are filing a gender identity discrimination charge with the EEOC , you generally must do so within 180 days of the discrimination occurring. If, however, a state or local agency also prohibits gender identity discrimination, then you have 300 days to file.

These deadlines relate to specific discriminatory events. If you experienced multiple events, then you must file within the time frame after the event you seek to challenge – unless you are experiencing ongoing harassment. For ongoing harassment, you may file following the most recent incident.

It is illegal for an employer to fire or otherwise retaliate against an employee for filing a complaint with the EEOC. See our page on whistleblowing for more information.

For filing a charge with an authority other than the EEOC – such as a local or state court – please ask your state or local agency about what law applies to you.

Regardless of where you file, it is always best to contact an attorney as soon as you suspect discrimination. Visit workplacefairness.org for more information on filing a discrimination complaint.

Contact an attorney

Sexual orientation discrimination

EEOC (gender identity and sexual orientation discrimination)

Sexual orientation and gender identity are independent from each other. Not all people who identify as a gender other than their sex at birth have a sexual orientation other than heterosexual. Additionally, not all people who identify with a gender other than their sex at birth consider themselves to be transgender.

Until 2020, the law was unclear on how to handle this distinction. The law was largely up to states and could vary drastically. Today, however, federal law – Title VII – is interpreted to prohibit discrimination based on either sexual orientation or gender identity.

Sex discrimination is when a person is treated differently because of their biological sex. For example, an employer paying women less than male employees would be illegal sex discrimination.

Visit workplacefairness.org for more information on sexual orientation discrimination for more information.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.

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• Employment alert: EEOC issues final guidance on workplace harassment

EEOC issues final guidance on workplace harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published its final guidance on workplace harassment, which took effect immediately. The new guidance supersedes earlier agency policy and enforcement guidance, and addresses areas such as gender identity, virtual work environments, and systemic discrimination. The final guidance largely tracks the proposed guidance issued in October 2023, with some additions (including more hypothetical examples) and clarifications.

The EEOC also issued additional educational resources, including a “ Summary of Key Provisions ” document, questions and answers for employees , and a fact sheet for small businesses .

While the new guidance does not have the force of law, it provides a roadmap for how the EEOC will investigate harassment complaints and enforce Title VII. Accordingly, employers are encouraged to review their policies, procedures, and training based on the final guidance, while monitoring legal challenges.

Notable new guidance for certain protected classes under Title VII

The guidance makes clear that not only does Title VII prohibit overt discrimination based on epithets or similar conduct, but it also prohibits harassment based on stereotypes or “traits or characteristics linked to an individual’s race,” such as “name, cultural dress, accent or manner of speech.” This also extends to harassment based on physical characteristics, including appearance standards such as “harassment based on hair textures or hairstyles commonly associated with specific racial groups.”

The guidance clarifies that while sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII. The guidance provides, as an example, a supervisor harassing “Black employees with darker complexions” but not those “with lighter skin tones.”

Pregnancy, childbirth, and related medical conditions

The final guidance affirms the EEOC’s view that sex-based harassment includes harassment based on pregnancy, childbirth, and related medical conditions, including lactation. It can also include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.

Sexual orientation and gender identity

Citing to the Supreme Court’s 2020 decision in Bostock v. Clayton County (affirming Title VII protections for employees based on sexual orientation), the final guidance provides protection against sex-based harassment, including harassment based on “sexual orientation and gender identity.” According to the EEOC, examples include harassment based on a person’s divergence from societal gender stereotypes; outing (disclosure of an individual's sexual orientation or gender identity without permission); “repeated and intentional” misgendering, such as through the deliberate misuse an employee’s preferred pronouns; and denial of access to a sex-segregated bathroom or facility consistent with the individual’s gender.

The protections based on gender identity and sexual orientation reflect the most significant expansion in the EEOC’s interpretation of Title VII, and are expected to meet the most resistance, with litigation to block the EEOC from enforcing these provisions already pending.

Genetic information

The new guidance clarifies that the Genetic Information Nondiscrimination Act (GINA) prohibits unlawful harassment based on an individual’s or an individual’s family member’s genetic test or family medical history. As examples, the EEOC notes that harassment based on genetic information could include harassing an employee because they carry the BRCA gene, or because the employee’s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization.

Retaliation

The final guidance addresses the concept of “retaliatory harassment,” noting that such harassment can be challenged even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment. According to the EEOC, equal employment opportunity laws’ antiretaliation provisions protect against a broader range of behaviors – “they forbid anything that might deter a reasonable person from engaging in protected activity.”

Cross-bases issues

The final guidance clarifies intraclass and intersectional harassment, both of which are actionable under Title VII. Intraclass harassment occurs when one employee harasses another based on a protected characteristic, even though both employees are in the protected class. For instance, the guidance provides the example of a Black manager using a racial epithet to describe other Black employees.

Intersectional harassment occurs when an employee is harassed for two intersecting protected characteristics – an example given is when a 51-year-old female worker is told by a supervisor she is having a “menopausal moment.” Such a remark is simultaneously targeting the female employee’s status as a female and as a person over the age of 40.

Perceived protected class

The EEOC guidance affirms that actionable harassment may occur based upon the perception that an employee is a member of a protected class, even if the employee is not actually a member of that class. For instance, the EEOC proffers as examples “harassment of a Hispanic person because the harasser believes the individual is Pakistani in national origin” and “harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim.”

Associational discrimination

The final guidance makes clear that “associational discrimination” is also covered by Title VII. Associational discrimination may arise from harassment of an individual because they associate with someone in a different protected class, or because they associate with someone in the same protected class. One example would be harassing a “White employee because his spouse is Black.” Notably, the EEOC makes clear that harassment does not require a close relationship, such as a family member, to give rise to a claim, but rather any association could suffice.

Digital and virtual technology

The final guidance confirms that the definition of work environment includes the virtual workspace ( eg , email, instant messaging, video calls) and describes how out-of-work electronic communications may contribute to a hostile work environment. Importantly, the final guidance clarifies that such out-of-work conduct must target the employer or its employees; social media postings on their own, without targeting the employer or employees, would not contribute to a hostile work environment.

Employer internal procedures

The proposed guidance detailed the “minimum” features necessary for an anti-harassment policy, complaint process, and training to be effective. While the final guidance avoids using the term “minimum,” it otherwise remains consistent with the proposed guidance. Employers ultimately are required to take reasonable care to prevent and correct harassment. Key steps to demonstrating reasonable care include having a broadly disseminated policy, establishing an effective complaint process, providing regular training to ensure employees and supervisors and managers understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy.

Interplay between statutory harassment prohibitions and other rights

The EEOC noted that many comments addressed free speech and religion-based rights issues, and it acknowledged that the application of the EEOC statutes may implicate other rights or requirements, including those under the US Constitution and other federal laws ( eg , Religious Freedom Restoration Act). The EEOC noted that it will carefully consider the facts presented in charges and the interaction of Title VII and the rights to free speech and exercise of religion. It also committed to enhance its administrative procedures and webpages to assist employers with potential defenses, including religious defenses.

If you have questions about the EEOC’s new guidance or discrimination or harassment issues, please reach out to the authors or your DLA Piper contact.

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Gender Reassignment

The equality act states that you must not be discriminated against on the basis of your gender reassignment in a number of circumstances:.

• That you are undergoing or have undergone specific treatment or surgery to change from your birth sex to your preferred gender. This process ensures that all transsexual people share the common characteristic of gender reassignment. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so.
• Due to your status as a transsexual i.e. when your gender identity is different from the sex assigned to you when you were born.
• Someone believes that you are transsexual, for example because you occasionally cross-dress or are gender variant (this is known as discrimination by perception)
• You are related or connected to a transsexual person, or someone wrongly thought to be transsexual (this is known as discrimination by association)

Any discriminatory treatment may be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

There is no explicit protection from discrimination for intersex people (the term used to describe a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn't fit the typical definitions of female or male).You must not however, be discriminated against because of your sex, or perceived sex, as a protection arising from the protected characteristic of sex.

Note on the use of language

In 2016 the Parliamentary Women & Equalities Committee made over 30 recommendations to government to ensure full equality for trans people. One of the recommendations was that the terms trans replaces ‘gender reassignment’ and ‘transsexual’ in the Equality Act.

The government did not act on this recommendation and the original terms remain in force. In order to be technically accurate, we have used these terms on this page. They may also be used when pursuing a claim of discrimination on your behalf.

However Equity, and the LGBT+ Committee, are committed to the use of the term 'trans'. We use this term in our campaigning, lobbying and policy activity.

Circumstances when being treated differently due to gender reassignment is lawful

The Equality Act supports action by employers and producers that actively seeks to support working with artists who have historically been disadvantaged and marginalised as trans artists. This form of activity is known as a positive action measure . Itcan be seen, for example, in casting breakdowns and job ads that encourage applicants who are trans.

We routinely encourage producers and engagers across the entertainment industry to adopt positive action measures to support the inclusion of trans members.

At some single-sex service providers and sports organisations in the UK, there are restrictions   that directly disadvantage trans people and limit their inclusion

Equity’s LGBT+ Committee works to limit the way in which any restrictions may unlawfully discriminate again trans members of the union.

Our work to combat trans discrimination

Equity’s LGBT+ Committee produced the entertainment industry’s first guide to good practice in casting and working LGBT+ artists in 2019.

The guide was welcomed across the entertainment industry.

Challenging government inaction on LGBT+ rights

Government inaction has denied the LGBT+ people, and the trans community specifically, of opportunities to gain essential safeguards and greater inclusion in mainstream society.

In recognition of this we joined with the rest of the UK trade union movement to demand the government reset its approach to LGBT+ rights. The LGBT+ Committee condemned  the decision by the UK government not to include trans and gender non-conforming people in its decision to ban conversion therapy.

The LGBT+ Committee welcomes any offer of active support from Equity members across the UK (Link to committee page once live).

Supporting the GAPs Workshops

Equity’s LGBT+ Committee work with members of the Casting Directors Guild on an initiative aimed at trans actors with limited opportunities to gain work .

The free workshops focus on auditioning for screen and include established industry guest speakers..

Further advice

Bullying & harassment.

What to do if you are being bullied or harassed at work.

Dignity at work

Advice if you are being bullied, harassed or treated unfairly at work – and if you’re experiencing abuse at home.

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What Is Gender Harassment?

(This may not be the same place you live)

  What Is Gender Harassment?

Harassing a person in their workplace because of their gender is a form of discrimination. It occurs when one person engages in insulting or demeaning behavior towards another person because of their gender or the gender with which they identify.

The harassing conduct in gender harassment is not something of a sexual nature. Rather, gender harassment generally may involve stereotypes relating to the roles and functions associated with a particular gender. For example, insulting remarks directed towards a person simply because they are female would be considered a form of gender harassment.

Gender harassment is sometimes difficult to identify. It can be confused with sexual harassment. However, the behavior of a person who harasses a person because of their gender does not have to be sexual in nature to qualify as gender harassment. The behavior of the harasser needs only to be of a character that creates a hostile work environment for a person of a specific gender because of their gender.

Workplace gender harassment laws have much in common with federal Title IX laws . Title IX is a federal law designed to prevent gender harassment and discrimination in school settings. When it occurs in an employment or workplace setting, gender harassment can show up as offensive actions between two or more co-workers or a supervisor and a subordinate.

Most states also have some laws in place aimed at preventing gender harassment and protecting its victims. Subjecting a person to gender harassment in their workplace is considered a violation of a person’s civil rights.

What Are Some Examples of Gender Harassment?

Is an employer liable for the gender-based harassment of one worker by another, what are the legal remedies for gender harassment, do i need the help of a lawyer for my gender harassment claim.

Of course, there is a range of conduct that can lead to claims for gender harassment. The offending behavior may include the following actions:

• Inappropriate displays of material that offends a particular gender, e.g., an insulting comic or another type of graphic or visual content.
• Comments or remarks, e.g., an inappropriate joke or story, that are directed as an affront to people of a specific gender.
• Insults or derogatory actions directed at a person solely because of their gender.
• Remarks that continue to be made even after the person has requested that they stop or the person targeted has indicated to the alleged harasser that they are offensive.
• Actual physical contact, assault, or interference with the person based on hostility to an individual’s gender.
• Labeling an individual with an offensive nickname for their gender.
• Generalized sexist slurs.
• Obscene humor or jokes about sex or any gender in general.
• Degrading anecdotes.
• Nicknames that are derogatory of a person’s gender.
• Gender-based belittling of a person or patronizing comments about them.

Although the above list includes many main examples of conduct that can be considered gender harassment, cases may vary. Depending on the facts as well as the statutes that have been enacted to protect against gender-based harassment in each state.

Equal employment opportunity laws cover the following:

• Private companies with at least 20 employees who have worked for a minimum of 20 weeks during the current calendar year or the past year.
• The federal government
• Public employers
• State and local governments
• Labor unions

The regulations that apply to covered employers state that companies may not do the following:

• Harass an employee based on their gender.
• Implement a policy in the workplace that has a harmful impact on only employees of a particular gender.
• Institute a pay structure or other practices that are based on gender or differentiate between employees on the basis of gender.

It should be noted that gender harassment is not the occasional remark or other act that may be harmful or otherwise reprehensible. The law protects workers from harassment that is persistent and pervasive.

An employer is liable for the conduct of its employees that constitutes gender harassment. A company that fails to comply with state and federal laws against gender harassment violates federal equal employment opportunity laws and possibly state laws as well.

Title VII of the Civil Rights Act of 1964 is the federal law that makes sexual harassment unlawful. It was extended to include gender harassment in 1980 by the EEOC. An employee’s sexual harassment complaint may be investigated by the EEOC and the federal Department of Justice. These two entities may take action against the employer by ordering criminal and civil penalties.

There is a federal EEOC grievance procedure that an employee must follow within the limited time allowed if they want to pursue a claim charging an employer with gender harassment or discrimination.

The EEOC does not consider occasional isolated instances of inappropriate gender-based comments to qualify as gender harassment. Unlawful harassment is the kind of behavior that makes the workplace an environment that would be intimidating, hostile, or offensive to any reasonable person.

However, the EEOC recognizes continual offensive comments as illegal conduct. If unwanted remarks by an employer or one of its employees negatively affect an employee, inhibiting their ability to work, the company may be guilty of gender harassment.

An employer has an affirmative legal obligation to eliminate every form of gender harassment and discrimination from its workplace.

A lawsuit alleging gender harassment can result in various outcomes for the parties. The most likely remedy for a victim would be an award of compensatory damages. The award of damages would compensate the victim for lost wages or salary and other economic losses from harassment. But the EEOC recognizes that the victim of gender harassment might not suffer any economic losses.

Other possible remedies are as follows:

• Removal or firing of the person responsible for the harassment, i.e., the alleged harasser.
• An award of compensatory damages for losses caused by the gender harassment incident, such as lost wages or lost business opportunities.
• Changes in a company’s workplace policies relating to gender harassment.

In some cases, gender harassment may also involve the elements of lawsuits for gender discrimination. In these cases, the legal remedies available may include the following:

• Reinstatement of the victim to their prior job position, for example, if the discrimination or harassment led to the firing of the harassed worker.
• An investigation into the workplace environment conducted by the Equal Employment Opportunity Commission (“ EEOC ”).

The EEOC would investigate because filing a complaint with the EEOC is often a requirement for discrimination cases before a lawsuit can be filed in a court of law.

Finally, some gender harassment cases may be filed as a class action lawsuit if a significant number of employees have been similarly affected by the same conduct.

Gender harassment in the workplace is a serious issue that may require a worker to take legal action if they want it to cease. If you believe you have been the victim of gender harassment, you want to consult an experienced discrimination lawyer .

Your lawyer can review the facts of your specific situation to determine if the behavior in your workplace rises to the level of gender harassment. Your attorney can guide you to the right approach, whether working with your employer to address the situation or filing a complaint with the EEOC or a state agency is the right approach.

Additionally, your attorney can also help you prepare the documents required to initiate a claim with the EEOC. Alternatively, an attorney can provide legal representation on your behalf in court if a trial should become necessary.

Finally, a qualified attorney can assess and predict what type of remedy may be available to you in your case.

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Gender Reassignment Discrimination

Anne morris.

• 7 September 2020

IN THIS SECTION

As an employer, it is illegal to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.

Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination .

This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.

What is gender reassignment discrimination?

Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.

The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.

To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.

What is the law on gender reassignment discrimination?

The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised , because of one or more of the nine protected characteristics , where gender reassignment is one of these.

All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.

To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.

Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.

What employment protections do transsexual employees have?

Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:

• Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
• Indirect discrimination : where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
• Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
• Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.

The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.

Examples of gender reassignment discrimination

Direct gender reassignment discrimination.

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.

Direct discrimination also covers the following scenarios:

• Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
• Discrimination by association : where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.

Indirect gender reassignment discrimination

Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.

An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.

Harassment because of gender reassignment

The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.

It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.

As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.

This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.

Victimisation because of gender reassignment

This is where someone at work is subjected to a detriment because they have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment.

A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.

What are the special protections relating to absences from work?

Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.

This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.

For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.

This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.

Can gender reassignment discrimination ever be justified?

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified , as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.

The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.

In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.

Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.

It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action .

What are the consequences of gender reassignment discrimination?

If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.

The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.

The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:

• A declaration setting out the rights of the parties
• An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
• A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

How can employers prevent gender reassignment discrimination?

Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.

These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.

In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR , we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts .

Gender reassignment discrimination FAQs

Gender reassignment discrimination takes place when someone is treated unfairly on the basis of their actual or proposed gender reassignment. The unfair treatment could be a one-off action or a blanket workplace rule or policy that puts a transsexual or trans person at a particular disadvantage.

What are the different types of gender reassignment discrimination?

There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.

What discrimination rights do trans employees have?

Trans employees have the right not to be treated less favourably at work, put at a disadvantage, or harassed or victimised, because they are transsexual, or perceived to be or connected with someone who is trans.

Last updated: 7 September 2020

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator , and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

• Anne Morris https://www.davidsonmorris.com/author/anne/ Government Responds to MAC Review into Graduate Route
• Anne Morris https://www.davidsonmorris.com/author/anne/ Employment Case Law Update May 2024
• Anne Morris https://www.davidsonmorris.com/author/anne/ Updated Absence Rule for EU Settled and Pre Settled Status Holders
• Anne Morris https://www.davidsonmorris.com/author/anne/ Switching from Pre Settled to Settled Status

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility .

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners , we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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Gender Reassignment

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Gender reassignment is a protected characteristic and the term refers to someone who is transgender. It includes anyone who has proposed, started or completed a process to change his or her sex. The Equality Act extends pre-existing protections for transsexual people by, for example, prohibiting indirect discrimination and removing the need for a transsexual person to be under medical supervision to benefit from legal protection. In employment, the Act also requires organisations to treat absences from work because someone proposes to undergo, is undergoing or has undergone gender reassignment in the same way or better as absences due to illness or injury.

There is limited data on the number of transgender people working or studying in the University. It is believed that there are likely to be more transgender people in higher education than in the population at large.

• A colleague who was born female decides to spend the rest of his life living as a man. He tells his departmental administrator, who makes appropriate arrangements. He then starts life at work and home as a man. After discussion with his doctor and a Gender Identity Clinic, he begins hormone treatment and several years later he has gender reassignment surgery. In this case he would be protected by the gender reassignment provisions of the Equality Act. His departmental administrator should seek guidance from the School's Human Resources Business Manager who will be able to provide support in managing the transition process.
• A student who was born physically male decides to spend the rest of her life as a woman. She starts and continues to live as a woman. As she successfully ‘passes’ as a woman, the student decides that she does not want to seek medical advice nor undergo any medical procedure/treatment. She would similarly be protected by the gender reassignment provisions of the Equality Act.

Support is provided to Transgender staff members of the University, College or associated institution through the LGBT Staff Network.

Support for Transgender Students is provided by the CUSU LBGT Campaign .

The University has produced Guidance on Gender Reassignment for Staff which provides information on good practice to support staff and institutions in implementing the University's Equal Opportunity Policy in relation to gender reassignment.

The University has produced Thinking Globally , which provides information for LGB&T staff and students working and studying at home and abroad.

Additional information and guidance is available from the Equality, Diversity and Inclusion Section.

The ECU has produced revised guidance on Trans Staff and Students in Higher Education .

The University has produced a glossary to explain terms related to gender reassignment.

Find out about Trans rights in Europe

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• Gender Reassignment Discrimination

Peninsula Group , HR and Health & Safety Experts

Mar 30th 2021 (Last updated Apr 10th 2024 )

Discrimination is illegal under the Equality Ac and it covers gender reassignment. Ensure you stay compliant by knowing what makes up reassignment and how to prevent discrimination.

Jump to section:

What is gender reassignment discrimination?

What does the equality act say about gender reassignment, can gender reassignment discrimination ever be legal, are there different types of gender reassignment discrimination, how to prevent gender reassignment discrimination in the workplace, do trans people need to have a gender recognition certificate, get expert advice on gender reassignment discrimination with peninsula.

All employees, workers, and job applicants are protected from unlawful discrimination. And this absolutely includes trans people.

Their legal rights come under gender reassignment legislation. Meaning, you cannot discriminate against trans people because of their gender identity.

If employers ignore this, they could face serious business costs. You could end up losing staff, paying compensation, and face business damages.

In this guide, we’ll look at what gender reassignment discrimination is, what the law covers, and how to protect trans people during work.

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Gender reassignment discrimination is when a person is treated unfairly because they identify as transgender.

Gender reassignment is defined in a number of ways. Some will undergo gender reassignment treatment; others will use trans identities. In simple terms, it's all about a person's perceived their gender identity.

Gender reassignment is when a trans person believes their birth sex isn’t coherent with what they identify as in reality. Many transgender people will experience this, so they champion their preferred or different gender.

This is called gender dysphoria. Some people live their everyday lives as the preferred gender. Others may choose to undergo treatment to change physical gender attributes. In the end, transgender identities are personal processes for individuals.

In the UK, the law relating to  discrimination  comes under the Equality Act 2010.

The act covers gender reassignment; as it's one of nine protected characteristics. The Equality Act states all trans people are protected from discrimination based on:

• Disability . 
• Gender reassignment.
• Marriage and or civil partnership.
• Pregnancy and maternity.
• Religion or belief.  
• Sexual orientation.

This legal right applies equally to full and part-time contract workers. It also includes job applicants and self-employed people, too.

Can employees raise gender reassignment discrimination claims?

Yes, a transgender employee can raise a gender reassignment discrimination claim. These claims are usually raised to an  employment tribunal .

Transgender people can face bullying or discriminatory acts - inside and outside of the workplace. If they were treated unfairly because of their gender identity, they're legally allowed to raise this claim.

An employment tribunal will look at the claim in full. After the hearings, they will decide on a final outcome.

If the claim is upheld, their employer could face serious consequences. First of all, tribunal hearings aren't great for your business brand-name and reputation.

Transgender workers and their colleagues may decide to leave and seek work elsewhere. This may happen whether the claim is successful or not.

The worst cost you could face is paying compensation. When it comes to any form of unlawful discrimination, these financial awards can be unlimited. But it all depends on the seriousness of the claim and the tribunal's final decision.

Under employment law, there are certain circumstances where gender reassignment discrimination can be legal.

This is called ' objective justification ' and it's covered under the Equality Act 2010. Objective justification is when a discriminatory act is lawful due to having a ‘proportionate means of achieving a legitimate aim'.

In simple terms, the employee is treated differently because their employer has a good or legal reason. For example, not considering trans employees for an 'organised religion' job role. The discriminatory act may be accepted because it goes against religious rights.

Employers cannot justify their actions themselves. Only a tribunal judge can say whether their reasoning classes as discrimination or not.

If the employer implements it themselves, they could be potentially liable for 'vicarious liability' due to their act.

Yes, you can define gender reassignment discrimination into four main categories:

• Gender reassignment direct discrimination. 
• Gender reassignment indirect discrimination.
• Gender reassignment harassment.
• Gender reassignment victimisation.

Let's take a look at each type in more detail.

Gender reassignment direct discrimination

Direct discrimination  is when a person receives unfair treatment because of a protected characteristic.

Most people will probably experience direct discrimination in their lives. Every trans employee is protected from direct gender reassignment discrimination during work.

For example, a trans employee (who was born female) decides to share their transition process at work. Their manager then makes negative and excessive criticism about this. They give them a verbal warning, telling them trans people aren’t welcome there.

Gender reassignment indirect discrimination

Indirect discrimination  is when a person receives less favourable treatment due to a workplace rule.

When a work practice shows indirect discrimination, it ruins staff performance, morale, and even loyalty. And this goes for whether it's direct or indirect discrimination.

For example, a trans employee wants to take leave for attend a trans-support march. HR views this leave as a personal reason. They reject it on the basis that social marches aren’t outlined as a valid reason to take leave.

Gender reassignment harassment

Harassment  is when a person faces unwanted conduct related to a protected characteristic.

Transgender people can face gender reassignment harassment from colleagues, managers, and even customers. The offensive environment caused by harassment leaves trans employees feeling scared.

For example, an employee emails several trans-phobic jokes to a trans employee. They tell the harasser to stop but they continue to send them.

Gender reassignment victimisation

Victimisation  is when a person is placed at a detriment due to raising a complaint related to their protected characteristic.

Victimisation claims aren't only raised by the affected employee. They can be raised by others who are linked to the claim, like a witness.

For example, an employee sees a client use abusive language and derogatory trans-phobic terms. They’re worried about raising a complaint about a high-paying client but choose to inform the HR department.

Employers need to be proactive when it comes to transgender acceptance.

So many people fall into this protected characteristic. So, it's important to protect trans employees and their legal rights.

If you neglect this, you could end up losing employees and ruining your business name. Not to mention, it's highly possible you could face discrimination claims through tribunal hearings.

Here are ways to prevent gender reassignment discrimination in the workplace:

Create an equality and diversity policy

The first step to take is to create an  equality and diversity  policy.

This is a statement showing your support towards equal opportunities - regardless of employee 'differences'.

You need to let your staff know that these rules apply to everyone. Also state what the consequences are for discrimination against a person's sex, race, or gender reassignment.

Offer awareness training to your staff

Most businesses offer awareness training only to their managers. But it's even more beneficial to give it to all staff members.

Transgender awareness training can include all sorts of factors. Like reading material, presentations, and one-to-one training sessions.

The main aim of awareness training is for employees to understand how to support their transgender colleagues during work.

Make workplaces more trans-friendly

Another great way to support transgender employees is to make your workplace more trans-friendly.

There are so many changes employers can make. For example, aim to use gender fluid language throughout your company. That includes through written means, like emails and documents. But also in everyday conversation, too.

Hire from diverse talent-pools

It's beneficial for employers to  hire candidates  from all walks of life and backgrounds. Their unique views and skills are assets for any company.

Make an active effort towards hiring applicants from different backgrounds. Not just because it'll tick those 'diversity boxes'. But think about the kinds of experiences they'll bring to your team.

They'll also be able to present their community and share their stories. This not only helps to grow awareness, but other employees gain insight into worlds that might not be known to them.

Support all gender identities

When it comes to the LGBTQIA+ community, there's a range of identities used by their members.

So be inclusive and support all gender identities in your workplace. If you're unsure about where to start, ask your employees.

Some might be part of the group; others might be allies. Together, they'll be able to provide the best support, advice, and suggestions to promote trans inclusivity.

Your employees will appreciate the efforts you've taken to build a safe and supportive workplace. And they'll return their gratitude through high performance and business loyalty.

Trans people don’t need to have an official Gender Recognition Certificate to be trans. This is their own legal right and can identify as trans if they want.

This is covered under the Equality Act 2010. You also don't have to undergo a medical process to class as a transgender person. It includes those who haven’t done this, too.

There isn't a 'one-size fits all' method when it comes to transgender identities. For employers, it's important to support trans rights. In the end, it turns into business loyalty, output, and success.

But if you fail to deal with gender reassignment discrimination, you could face huge costs. Like unlimited compensation, losing employees, and reputational damage.

Peninsula offers expert advice on dealing with gender reassignment discrimination. Our HR team offers unlimited 24/7 HR employment  services which are available 365 days a year.

Want more information? Seek specialist advice from one of our HR advisors. Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.

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How we’re implementing the National Plan to End Gender-Based Violence

The Women’s Bureau co-led the shaping of the Plan’s economic security and housing stability pillar, which aims to change harmful work cultures, address the root causes of gender-based violence in the world of work, and improve economic security for workers and survivors experiencing gender-based violence and harassment. Many of the actions outlined in this pillar drew inspiration from the International Labour Organization's (ILO) Convention on Violence and Harassment (Convention 190) . While the U.S. has not ratified Convention 190 and it is not binding on U.S. employers, it is the first international treaty to recognize the right to a world of work free of violence and harassment. 

Here are four key actions the Women’s Bureau has taken to implement the Plan:

In September 2023, the Women’s Bureau awarded the first Department of Labor grants exclusively focused on ending gender-based violence and harassment in the world of work . Over $1.5 million was awarded to five community organizations working across 14 states to build awareness of gender-based violence and harassment in the world of work, connect workers and survivors to their workplace rights and benefits, and implement worker- and survivor-driven strategies to shift workplace norms and culture. The grant program, Fostering Access, Rights and Equity (FARE), is now accepting Fiscal Year 2024 applications through May 28, 2024 .

Shortly after the Plan was released, the Women’s Bureau  signed a memorandum of understanding with the ILO Office for the U.S. and Canada to engage in joint events and activities concerning gender-based violence and harassment, including uplifting the principles of Convention 190 in U.S. policies, programs and practice. Together we are engaging stakeholders around the country and across sectors to discuss effective worker- and survivor-driven solutions to eliminate gender-based violence and harassment in the world of work. Since announcing our partnership, the Women’s Bureau has held about 40 regional convenings that have brought together workers, employers, unions, worker advocates, government representatives and others.

The Women’s Bureau also partnered with the Department of Labor's Occupational Safety and Health Administration on a webinar series that emphasized that gender-based violence and harassment is a workplace safety and health issue that has psychological and physical impacts on workers. The series featured discussions with workers, worker advocates, employers, and representatives from unions and the Equal Employment Opportunity Commission.

Finally, the Women's Bureau created a webpage on gender-based violence and harassment and published fact sheets, issue briefs and blogs throughout the year. Our fact sheet on gender-based violence and harassment in the world of work discusses key terminology, lists examples and outlines the key initiatives in this space. It is available in English and  Spanish . 

Carrying out the vision of the National Plan will take continued effort, action and coordination for many years to come. We all have an active role to play in making our world of work, and our society as a whole, safer and more equitable. The Women’s Bureau is committed to implementing this vision by engaging with survivors, workers, unions, employers and government agencies to address and prevent gender-based violence and harassment in the world of work. 

Amy Dalrymple and Kate Miceli are Policy Analysts at the Women’s Bureau. Katrin Schulz is the Branch Chief of Grants, Communications & Planning at the Women’s Bureau.

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Transgender discrimination

Harassment and discrimination of transgender people: an introduction, what is discrimination or harassment of transgender people, if you are being harassed or discriminated against, transgender people and legal protection, next steps for unison representatives.

Transgender people are those whose gender identity or expression doesn’t conform to the sex they were assigned at birth. The relevant legislation uses the term transsexual.

Some transgender people decide to live permanently in the opposite gender to their birth gender (gender reassignment or transition). This may involve medical and surgical procedures which can take months or years to complete.

People are protected against harassment or discrimination in the workplace because of their gender reassignment under the Equality Act 2010 and the Sex Discrimination (Northern Ireland) Order 1976, amended by the Gender Reassignment (Northern Ireland) Regulations 1999.

Employers must offer the same opportunities to every employee and treat everyone in the workplace fairly and with respect, regardless of whether they are transgender or not.

Unlawful discrimination against a worker because of gender reassignment includes less favourable treatment, such as not offering the worker employment, less favourable terms and conditions, fewer opportunities for promotion and training or dismissal.

A person harasses another if they engage in unwanted conduct related to gender reassignment, which has the purpose or effect of violating the other person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

It also extends to situations where a person is treated less favourably because they have rejected or submitted to the conduct. You may be being harassed on grounds of gender reassignment, if you are:

• humiliated;
• subjected to unwanted comments;

A lot of people put up with less favourable treatment or harassment, hoping that it will stop. But it usually won’t stop until someone takes action.

Complaints can be made under the Equality Act or the Northern Ireland order. If you are forced to resign, you may be able to make a constructive unfair dismissal claim. However, wherever possible, you should seek advice before you resign.

Read more about unfair dismissal

If you think you are being harassed or otherwise discriminated against because you are transgender, or because someone thinks you are, you must take action. Begin by keeping a record of incidents.

Deal with discrimination and bullying by:

• talking to your UNISON representative ;
• talking to the person who is discriminating against you or ask someone else to talk to them;
• raising an informal grievance using your employer’s grievance procedure ;
• raising a formal grievance – the complaint could be taken to an employment tribunal, but you should be aware that short time limits exist (generally three months less one day from the act complained of or in Northern Ireland three months exactly) when bringing claims to the employment tribunal, and following your employer’s grievance procedure does not extend time limits. Find out more about employment tribunals.

The Equality Act and Northern Ireland order protects workers from being discriminated against because of gender reassignment.

They protect people who are undergoing or have undergone gender reassignment, people who are considering undergoing gender reassignment and people who are incorrectly perceived to be transgender.

It is not necessary for people to have any medical diagnosis or treatment to gain this protection: it is a personal process of moving away from one’s birth gender to the preferred gender.

The public sector equality duty part of the legislation requires public-sector organisations to actively eliminate discrimination and promote equality and good relations in the workplace.

Find out more about public sector equality duties.

If your employer doesn’t have a policy in place to counter discrimination and harassment against employees because of gender reassignment, and to promote equality for transgender people, negotiate with them to put one in place.

If a member is being harassed or otherwise discriminated against because of gender reassignment, be prepared to advise them on the next steps they should take.

Refer to the guides below and if you are unsure, speak to your regional organiser or branch secretary for advice. Tell them where they can go for support: UNISON has a self-organised group for lesbian, gay, bisexual and transgender members.

The member may also ask you to speak to the person discriminating against them. You may need to advise them on raising a grievance and attend grievance meetings together.

If a member seeks information, advice or representation, use the UNISON case form, which you can find via the all articles section of this topic.

• Transgender people may experience harassment and discriminationfrom managers and co-workers.
• You can complain under the Equality Act or the Northern Ireland regulations, which protect against discrimination, harassment and victimisation.
• If you think you are being harassed or discriminated against, talk to your UNISON rep.

A co-worker makes me feel uncomfortable with things he says about transgender people: what should I do?

It is considered harassment if your manager or co-workers create an intimidating, hostile, degrading, humiliating or offensive atmosphere for you or otherwise violate your dignity.

You are protected from such harassment and other forms of discrimination under the Equality Act and the Sex Discrimination (NI) Order 1976, as amended by the 1999 regulations.

You should speak to your UNISON rep immediately if you experience harassment.

I am being bullied at work because of my gender reassignment and the situation is unbearable. I want to resign. Can I claim unfair dismissal?

If you feel you have to resign because of your treatment and want to file a claim for unfair dismissal, you would need to show that your employer has committed a breach of contract which is so serious that it effectively released you from the terms of your contract of employment and led to you feeling forced to leave.

A serious and deliberate act of discrimination would normally constitute a sufficiently serious breach of contract.

I have complained to my manager about being discriminated against at work and now the situation has got worse. Is there anything else I can do?

It is against the law to victimise an employee (ie subject them to “a detriment”) because they have complained about gender reassignment discrimination.

You should speak to your UNISON rep to get advice on your next steps

A guide to equality in UNISON – updated January 2012

6 June 2013

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Legal disclaimer

The information contained within this article is not a complete or final statement of the law and is based on the laws of England, Wales, Scotland and Northern Ireland.

While UNISON has sought to ensure that the information is accurate and up to date, it is not responsible and will not be held liable for any inaccuracies and their consequences, including any loss arising from relying on this information. If you are a UNISON member with a legal problem, please contact your branch or region as soon as possible for advice.

Getting help as a member of UNISON

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Related links

• Thompsons Solicitors guide to the Equality Act
• The Equality Act (Home Office page)
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Gender Reassignment

What is gender reassignment.

In most cases we grow up feeling a sense of comfort or acceptance with our gender but this is not true for all people. Around 1 in 11,500 people will find that as they grow up, they feel less comfortable with the gender prescribed to them at birth, and will instead, find greater comfort and connection to another gender. They may then express the need to live in this different and more appropriate gender. In Scotland, those of us experiencing this are referred to as ‘transgender’ or ‘trans’ people. ‘Trans’  is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.

In the Equality Act it is known as gender reassignment*. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one.You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.

*’Gender reassignment’ is a term of much contention and is one that Stonewall’s Trans Advisory Group feels should be reviewed.

The Equality Act 2010 says that you must not be discriminated against because you are transsexual, when your gender identity is different from the gender assigned to you when you were born. For example: • a person who was born female decides to spend the rest of his life as a man

In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.

The Equality Act says that you must not be discriminated against because: • of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination • someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant (this is known as discrimination by perception) • you are connected to a transsexual person, or someone wrongly thought to be transsexual (this is known as discrimination by association)

Intersex people (the term used to describe a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t fit the typical definitions of female or male) are not explicitly protected from discrimination by the Equality Act, but you must not be discriminated against because of your gender or perceived gender. For example: • if a woman with an intersex condition is refused entry to a women-only swimming pool because the attendants think her to be a man, this could be sex discrimination or disability discrimination

Following is a short film by the Equality & Human Rights Commission titled ‘What is gender reassignment discrimination?’.

Trans people are entitled to the same level of quality care as everyone else and should expect to receive it based on their gender identity, gender expression or physical body. However, it is important to appreciate the lived experience of many Trans people to ensure the care health services provide is appropriate and sensitive.

Findings from the recent INCLUSION Project research showed significant issues for Trans people include:

• Mental health problems including suicide, self harm, anxiety and depression
• Lack of primary care facilities as many GPs have no or little knowledge of Trans people’s needs
• Lack of access to essential medical treatment for gender identity issues, i.e. electrolysis for Trans women
• Lack of awareness and understanding of care providers so that Trans people are in appropriately treated in single gender out patient and in patient services.
• Inconsistent funding and access to transitioning services throughout Scotland
• Lack of social work service to support children, young people, adults and families with gender identity issues.
• Social exclusion, violence and abuse and the resulting negative impact on health and well-being

NHS Greater Glasgow and Clyde were the first NHS Board in Scotland to publish a  Gender Reassignment Policy  which sets out our commitment to ensure equality of access to services that are both appropriate and sensitive. We have the busiest trans services in Scotland at the Sandyford Initiative and provide a number of specialist services that are recognised as being amongst the best in the UK. However, there are still barriers experienced by Trans people using mainstream NHS services. It is essential that frontline NHS staff do all they can to remove the stigma of transitioning and play their part in delivering services of the highest standard to Trans people. To this end, guidance has been issued to support staff in responding to queries from Trans service users.Add info here…

Fran’s Story

Fran transitioned from male to female 10 years ago. She has spent her life experiencing bullying and harassment because of her gender identity and has been the victim of several hate crime incidents.

Fran was experiencing pain in her right thigh and attended an outpatient appointment.  When Fran entered the waiting area she gave her name and confirmed her appointment time.  The receptionist explained there wasn’t an appointment for a Fran Walker but there was one for a Mr Frank Walker.  Fran explained that she should now be referred to as Fran as she had requested all records be updated to reflect her gender reassignment.  The receptionist explained she was unable to do that until the medical records were updated.  Fran was asked to take a seat in the waiting area.  Fran was in discomfort but before taking a seat explained again it was Fran or Ms Walker, not Frank or Mr Walker.

While Fran was waiting for her appointment she heard a member of staff calling for a Mr Frank Walker.  Fran sat where she was, angry, frustrated and embarrassed that she was still being referred to in the wrong gender.  Eventually after a repeat call she stood and walked into the treatment room.  She was still very upset and asked why, despite explaining she wished to be called by her new name, staff insisted on calling her by her previous name.  The member of staff explained the name on her record was Frank Walker, not Fran, and until they heard otherwise, she would continue to be addressed as Frank or Mr Walker. Fran tried to remain calm and explained that if she was referred to as Frank again she would make a formal complaint.  The member of staff reiterated the position so Fran explained that staff were in breach of legislation protecting trans people. They were deliberately disclosing her previous birth gender and so could be held liable and receive a significant financial penalty under UK law. Fran stated that if it happened again she would take formal action. The equality Act protects trans people in a number of ways, one of which is to ensure previous birth gender is only disclosed to another party when necessary with appropriate controls in place and then only with the expressed permission of the trans person.

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EEOC's New Guidance on Workplace Harassment Being Challenged

In its first update since 1999, the Equal Employment Opportunity Commission (EEOC) recently published updated enforcement guidance on workplace harassment. The 189-page guidance, which consolidates and replaces five previous guidance documents issued from 1987 through 1999, clarifies the EEOC's position on various types of harassment, incorporates new developments in the law, most notably those relating to LGBTQ+ employee rights, and addresses circumstances in modern society such as electronic communications, social media and remote work. The guidance also includes numerous hypothetical examples illustrating harassment against individuals in each protected classification under federal discrimination laws. The guidance was published on April 29. By May 13, a lawsuit challenging the guidance was filed.

Below are some highlights of the EEOC's guidance and the current legal challenge to it.

LGBTQ+ Rights

One of the most noteworthy changes in the EEOC's guidance relates to LGBTQ+ employee rights. This change was a result of the Supreme Court's 2020 decision in Bostock v. Clayton County , which held that discriminating against an employee based on gender identity or sexual orientation is unlawful sex discrimination under Title VII. The EEOC's guidance defines sex-based discrimination under Title VII to include "repeated and intentional use of a name or pronoun inconsistent with the individual's known gender identity (misgendering) or the denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity." The EEOC noted that Bostock 's reasoning about the nature of discrimination based on sex "logically extends to claims of harassment." Examples of harassment based on sexual orientation or gender identity include epithets, physical assault, disclosing an individual's sexual orientation or gender identity without permission, and harassing conduct because an individual presents themselves in a way that is different than the stereotype associated with that person's sex.

Pregnancy, Childbirth and Related Conditions

The EEOC's guidance makes clear that conduct based on an individual's pregnancy, childbirth or related medical conditions, such as using or not using contraception, or choices regarding abortions, falls under the umbrella of sex-based discrimination and harassment. Examples include negative comments about an employee's ability to work due to morning sickness or inappropriate conduct toward a lactating employee.

The EEOC's guidance separated out color harassment from that relating to race and national origin, clarifying that "[a]lthough sometimes related to harassment based on race or national origin, color-based harassment due to an individual's pigmentation, complexion, or skin shade or tone is independently covered by Title VII." Harassment based on color could include specific comments made about the color of one's skin, as well as harassment of groups of employees of the same race based on their complexion when others of the same race who have a different complexion are not harassed.

Intraclass and Intersectional Harassment

The guidance illustrates different types of harassment. "Intraclass" harassment occurs when both the harasser and the individual being harassed are in the same protected category. For example, someone in their 50s could harass someone in their 60s by making ageist comments even though both are older than 40 and age protected.

"Intersectional" harassment occurs when an individual is harassed because that person is a member of more than one protected category. For example, the harassment of a Black woman based on stereotypes about Black women would constitute both race and sex harassment.

Recognizing Current Circumstances

The EEOC's guidance recognizes some differences in society since the last guidance was issued more than 25 years ago. It makes clear that even if certain conduct (such as "electronic communications using private phones, computers or social media accounts") does not occur in a work-related context, it can nonetheless impact the workplace and affect terms and conditions of employment. Given the growth of technology, the guidance emphasizes that "it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images, such as through social media, messaging applications, or other electronic means, can contribute to a hostile work environment, if it impacts the workplace." Further, since its guidance is the first update since the COVID-19 pandemic, the EEOC explained that the guidance applies to remote work locations as well.

The Legal Challenge

Despite the EEOC's efforts to address the approximately 38,000 comments received during the comment period before it issued the final rule on May 13, 18 states filed a lawsuit in Tennessee federal court, claiming the guidance unlawfully expands transgender rights under Title VII beyond the Supreme Court's decision in Bostock , including on such issues as pronouns and bathroom use. That same court vacated the EEOC's June 2021 guidance relating to sexual orientation and gender identity.

Given the legal challenge, the status of the EEOC's guidance is unclear at this point. Employers should remember, however, that state and local law may provide even greater protections to employees than those under Title VII or the EEOC's guidance. Further, employers are encouraged to ensure that their policies effectively address issues in the modern workplace, including harassment in the contexts of the remote workplace and social media. Employers are also encouraged to confer with employment counsel to ensure that they comply with the law applicable to their workplaces.

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Harassment related to gender reassignment*

• refusing to address a trans person by their preferred name and correct gender pronoun repeated and deliberate mis-gendering of a trans person or people 
• denying a trans person or people access to the appropriate single sex facilities such as toilets or changing rooms 
• engaging in banter or making transphobic comments, taunts or jokes 
• outing an individual as trans without their permission or spreading rumours or gossip about their gender identity, expression and/or history 
• ignoring or excluding an individual from activities because they are trans asking a trans person intrusive questions about their private life 
• making assumptions and judgements about someone based on their gender identity, expression and/or history 
• verbally or physically abusing or intimidating someone because they are trans 

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Each blue dot represents a general surgery program. The orange line represents the Pearson correlation line of best fit.

• Workplace Harassment, Cyber Incivility, and Climate in Academic Medicine JAMA Original Investigation June 6, 2023 This study evaluates academic medical culture, faculty mental health, and their relationship among faculty members who received National Institutes of Health career development awards from 2006-2009. Reshma Jagsi, MD, DPhil; Kent Griffith, MS, MPH; Chris Krenz, BA; Rochelle D. Jones, MS; Christina Cutter, MD, MSc, MS; Eva L. Feldman, MD, PhD; Clare Jacobson, MD; Eve Kerr, MD, MPH; Kelly C. Paradis, PhD; Kanakadurga Singer, MD, MA; Nancy D. Spector, MD; Abigail J. Stewart, PhD; Dana Telem, MD; Peter A. Ubel, MD; Isis Settles, PhD
• Association of Gender Identity, Sexual Orientation, and Race With Social Experience JAMA Surgery Invited Commentary October 1, 2021 Kelli N. Patterson, DO, MS; Amalia Cochran, MD, MA

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Schlick CJR , Ellis RJ , Etkin CD, et al. Experiences of Gender Discrimination and Sexual Harassment Among Residents in General Surgery Programs Across the US. JAMA Surg. 2021;156(10):942–952. doi:10.1001/jamasurg.2021.3195

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Experiences of Gender Discrimination and Sexual Harassment Among Residents in General Surgery Programs Across the US

• 1 Surgical Outcomes and Quality Improvement Center, Department of Surgery, Feinberg School of Medicine, Northwestern University, Chicago, Illinois
• 2 Division of Research and Optimal Patient Care, American College of Surgeons, Chicago, Illinois
• 3 Wisconsin Surgical Outcomes Research Program, Department of Surgery, University of Wisconsin School of Medicine, Madison
• 4 Department of Surgery, University of Wisconsin School of Medicine, Madison
• 5 American College of Surgeons, Chicago, Illinois
• 6 Department of Surgery, University of Chicago, Chicago, Illinois
• 7 American Board of Surgery, Philadelphia, Pennsylvania
• 8 Accreditation Council for Graduate Medical Education, Chicago, Illinois
• 9 Division of Pediatric Surgery, Ann & Robert H. Lurie Children’s Hospital, Feinberg School of Medicine, Northwestern University, Chicago, Illinois
• Invited Commentary Association of Gender Identity, Sexual Orientation, and Race With Social Experience Kelli N. Patterson, DO, MS; Amalia Cochran, MD, MA JAMA Surgery
• Original Investigation Workplace Harassment, Cyber Incivility, and Climate in Academic Medicine Reshma Jagsi, MD, DPhil; Kent Griffith, MS, MPH; Chris Krenz, BA; Rochelle D. Jones, MS; Christina Cutter, MD, MSc, MS; Eva L. Feldman, MD, PhD; Clare Jacobson, MD; Eve Kerr, MD, MPH; Kelly C. Paradis, PhD; Kanakadurga Singer, MD, MA; Nancy D. Spector, MD; Abigail J. Stewart, PhD; Dana Telem, MD; Peter A. Ubel, MD; Isis Settles, PhD JAMA

Question   What are the experiences of residents in general surgery programs with regard to gender discrimination and sexual harassment?

Findings   In this survey study of 6764 residents enrolled in 301 general surgery programs across the US, 80% of women and 17% of men reported experiencing gender discrimination, and 43% of women and 22% of men reported experiencing sexual harassment. The types and sources of discrimination and harassment and their associated factors varied.

Meaning   This study’s findings suggest that gender discrimination and sexual harassment are common experiences among residents in general surgery programs; these phenomena warrant multifaceted context-specific strategies for improvement.

Importance   Mistreatment is a common experience among surgical residents and is associated with burnout. Women have been found to experience mistreatment at higher rates than men. Further characterization of surgical residents’ experiences with gender discrimination and sexual harassment may inform solutions.

Objective   To describe the types, sources, and factors associated with (1) discrimination based on gender, gender identity, or sexual orientation and (2) sexual harassment experienced by residents in general surgery programs across the US.

Design, Setting, and Participants   This cross-sectional national survey study was conducted after the 2019 American Board of Surgery In-Training Examination (ABSITE). The survey asked respondents about their experiences with gender discrimination and sexual harassment during the academic year starting July 1, 2018, through the testing date in January 2019. All clinical residents enrolled in general surgery programs accredited by the Accreditation Council for Graduate Medical Education were eligible.

Exposures   Specific types, sources, and factors associated with gender-based discrimination and sexual harassment.

Main Outcomes and Measures   Primary outcome was the prevalence of gender discrimination and sexual harassment. Secondary outcomes included sources of discrimination and harassment and associated individual- and program-level factors using gender-stratified multivariable logistic regression models.

Results   The survey was administered to 8129 eligible residents; 6956 responded (85.6% response rate)from 301 general surgery programs. Of those, 6764 residents had gender data available (3968 [58.7%] were male and 2796 [41.3%] were female individuals). In total, 1878 of 2352 female residents (79.8%) vs 562 of 3288 male residents (17.1%) reported experiencing gender discrimination ( P  < .001), and 1026 of 2415 female residents (42.5%) vs 721 of 3360 male residents (21.5%) reported experiencing sexual harassment ( P  < .001). The most common type of gender discrimination was being mistaken for a nonphysician (1943 of 5640 residents [34.5%] overall; 1813 of 2352 female residents [77.1%]; 130 of 3288 male residents [4.0%]), with patients and/or families as the most frequent source. The most common form of sexual harassment was crude, demeaning, or explicit comments (1557 of 5775 residents [27.0%] overall; 901 of 2415 female residents [37.3%]; 656 of 3360 male residents [19.5%]); among female residents, the most common source of this harassment was patients and/or families, and among male residents, the most common source was coresidents and/or fellows. Among female residents, gender discrimination was associated with pregnancy (odds ratio [OR], 1.93; 95% CI, 1.03-3.62) and higher ABSITE scores (highest vs lowest quartile: OR, 1.67; 95% CI, 1.14-2.43); among male residents, gender discrimination was associated with parenthood (OR, 1.72; 95% CI, 1.31-2.27) and lower ABSITE scores (highest vs lowest quartile: OR, 0.57; 95% CI, 0.43-0.76). Senior residents were more likely to report experiencing sexual harassment than interns (postgraduate years 4 and 5 vs postgraduate year 1: OR, 1.77 [95% CI, 1.40-2.24] among female residents; 1.31 [95% CI, 1.01-1.70] among male residents).

Conclusions and Relevance   In this study, gender discrimination and sexual harassment were common experiences among surgical residents and were frequently reported by women. These phenomena warrant multifaceted context-specific strategies for improvement.

Gender discrimination, defined as unequal treatment that individuals experience based on their gender, 1 is prevalent in academia, particularly in fields, such as surgery, with a predominance of men, hierarchical relationships, and substantial one-on-one time between trainees and supervisors. 2 - 4 Although experts consider gender discrimination to be a type of sexual harassment, 2 , 5 many people colloquially consider sexual harassment to be inappropriate conduct that is strictly sexual in nature. 6 Among physicians, gender discrimination and sexual harassment have been associated with career dissatisfaction, 3 , 4 decreased self-confidence, 7 depression, and suicidal ideation. 4 Discrimination and harassment likely have a role in the relative underrepresentation of women in full professorships 8 and leadership positions in health care 9 , 10 despite gender parity in medical school acceptances, 11 which may further exacerbate the cycle of gender bias leading to discrimination. 9 , 12 , 13

Because trainees are subject to a power differential, they are at increased risk of discrimination and harassment. 2 , 4 , 6 A pooled meta-analysis revealed that 66.6% of residents reported experiencing gender discrimination, and 36.2% reported experiencing sexual harassment. 14 In a previous study, 65.1% of female surgical residents reported experiencing gender discrimination, and 19.9% reported experiencing sexual harassment. 15 No definitions of discrimination and harassment were provided, 15 which may have contributed to lower mistreatment rates than previously reported, 2 , 14 , 16 although those studies were limited by sample size and response rate. 17 - 19 In addition to underestimating prevalence, a lack of granular detail limited the interpretation and actionability of the previous studies’ findings.

A better understanding of the nature of these experiences and the associated individual- and/or program-level factors is needed to successfully intervene. Thus, we sought to fully characterize the gender discrimination and sexual harassment experienced by residents in general surgery programs across the US by (1) querying specific behavior types, (2) identifying the sources of these specific behaviors, and (3) evaluating associated resident and program-level factors.

A confidential, optional closed-ended survey was offered to all 8907 residents in US general surgery programs accredited by the Accreditation Council for Graduate Medical Education who took the 2019 American Board of Surgery In-Training Examination (ABSITE). 20 The survey was administered in January 2019 and queried respondents about the academic year starting on July 1, 2018. The American Board of Surgery deidentified survey responses before transferring the data for analysis. 15 , 21 Residents who were not in a clinically active year of training or who did not have gender data available through the American Board of Surgery were excluded. This study was deemed exempt from review by the Northwestern University Institutional Review Board because of the use of deidentified data. The survey was prefaced by a statement explaining that its purpose was research and that responses would be deidentified. The delivery software was constructed so that participants could exit the survey at any time.

The survey evaluated aspects of the learning environment and respondents’ well-being. Because no single comprehensive instrument was available to evaluate gender discrimination and sexual harassment, items were developed and adapted based on a comprehensive review of the literature. Previously validated instruments 22 - 24 were used when applicable. Survey items were evaluated for clarity and cohesion using a sample of research residents in general surgery programs across the US and iteratively revised until coherence consensus was achieved. 20 , 21

Information regarding residents’ gender (obtained from the field labeled “gender” on the examination registration form, with response options of male or female) and postgraduate year (PGY-1, PGY-2/3, or PGY-4/5) were provided by the American Board of Surgery. Residents were queried regarding their relationship status (married, not married but in a relationship, not married and not in a relationship [single], divorced/separated, or widowed), number of children younger than 18 years (0, 1, 2, 3, 4, or ≥5, aggregated into any children vs no children), and whether they or their partner were pregnant, expecting a child, or adopting a child during the academic year (July 2018-January 2019). Respondents’ 2019 ABSITE scores were reported in quartiles.

Gender data were aggregated at the program level, and the proportion of each residency program that was female was reported in quartiles (with quartile 1 indicating <34.4%, quartile 2 indicating 34.4%-42.3%, quartile 3 indicating 42.5%-49.1%, and quartile 4 indicating ≥50.0%). Data on program size (based on the total number of residents in general surgery programs and reported by quartiles, with quartile 1 indicating <26, quartile 2 indicating 26-36, quartile 3 indicating 37-50, and quartile 5 indicating ≥51), program type (university, independent, or military), and program location (Northeast, Southeast, Midwest, Southwest, and West) were provided by the American Board of Surgery.

The Accreditation Council for Graduate Medical Education provided information about each program’s department chair and program director, and their genders were ascertained through a review of publicly available biographies. The Association of American Medical Colleges provided counts of active surgical faculty by gender for medical schools that participated in their faculty roster. The proportion of faculty that identified as female was calculated for each program and reported by quartiles (with quartile 1 indicating <19.5%, quartile 2 indicating 19.5%-23.6%, quartile 3 indicating 23.7%-26.9%, and quartile 4 indicating ≥27.0%). Programs with more than 1 medical school affiliation were assigned to the listed primary affiliate.

Specified types of discrimination based on gender, gender identity, and/or sexual orientation included (1) experiencing different standards of evaluation (eg, lowered expectations, need to work harder to achieve the same success as others, unfair punishment, or less respect of my opinions), 18 , 25 (2) being denied opportunities (eg, allocation of cases, attendance at conferences, career options, opportunities for advancement, or mentorship), 3 , 18 , 25 , 26 (3) being mistaken for a nonphysician, 27 (4) being subject to slurs and/or hurtful, humiliating, negative, or uncomfortable comments, even when purported as jokes, 18 , 24 (5) feeling socially isolated (eg, excluded from social events or malicious gossip), 18 (6) being advised against having children during residency, 28 and (7) feeling like my/my partner’s pregnancy or childcare needs led to negative reactions from coworkers and/or the program. 28 , 29 If residents reported experiencing any of these feelings or behaviors within the academic year (July 2018-January 2019) before survey administration, they were considered to have experienced gender discrimination. Analyses of gender discrimination based on pregnancy and childcare needs were restricted to residents who indicated that they were pregnant, expecting a child, adopting a child, and/or had a minor child.

Specified types of sexual harassment included (1) being subject to crude, sexually demeaning, or explicit remarks, stories, or jokes 18 , 24 , 26 , 30 , 31 ; (2) having unwanted sexual imagery or materials sent or shown to you 24 , 30 ; (3) receiving unwanted verbal sexual attention (eg, comments, flirtations, or sexual advances) 18 , 24 , 26 , 30 ; (4) offensive body language (eg, leering or standing too close) 25 , 26 , 30 ; (5) receiving unwanted physical sexual attention (eg, inappropriate or uncomfortable touching or attempts to touch, fondle, or kiss) 18 , 24 - 26 , 30 ; and (6) sexual coercion (eg, bribed or threatened to engage in sexual behavior or suggestion of better treatment if sexually cooperative). 7 , 24 , 26 , 30 If residents reported experiencing any of these behaviors within the academic year (July 2018-January 2019) before survey administration, they were considered to have experienced sexual harassment.

For each reported behavior, residents were queried regarding the frequency (never, a few times per year, once per month or less, a few times per month, once per week, a few times per week, or every day) and source (patients and/or families [patients/families], attending physicians, administrators, coresidents and/or fellows [coresidents/fellows], or nurses and/or support staff [nurses/staff]). Frequency analyses were restricted to residents who reported experiencing any type of gender discrimination or sexual harassment. Respondents who reported experiencing a particular behavior but did not answer the source question were classified as having an unidentified source for that behavior.

χ 2 tests adjusted for program-level clustering were used to compare male and female residents regarding (1) resident and program characteristics, (2) proportion of residents reporting each type of discrimination or harassment, (3) proportion of residents reporting any behavior consistent with either discrimination or harassment, and (4) frequency of discrimination or harassment. The most common source of each behavior was reported by gender. Respondents with missing data were excluded from the analyses.

Gender-stratified multivariable logistic regression analyses with robust SEs adjusted for program-level clustering were used to estimate the association of individual- and program-level factors with gender discrimination and sexual harassment. The proportion of residents within each program who reported experiencing discrimination or harassment was calculated. Pearson correlation analysis was used to assess program-level correlations between the rates of discrimination or harassment and the proportion of female residents. All statistical analyses were 2-sided with a predetermined significance threshold of P  < .05. Analyses were performed using Stata software, version 14.2 (StataCorp LLC).

Among 8907 total residents in general surgery programs across the US, 778 residents were excluded because they were not clinically active. The remaining 8129 residents were eligible for inclusion, of whom 6956 responded (85.6% response rate). A total of 192 residents were excluded based on the absence of gender data, resulting in a final sample of 6764 residents from 301 general surgery programs. Of those, 3968 residents (58.7%) were male and 2796 (41.3%) were female. The proportion of female residents was higher in junior years (709 of 1687 residents [42.0%] in PGY-1 vs 1160 of 2689 residents [43.1%] in PGY-2/3 vs 927 of 2388 residents [38.8%] in PGY-4/5; P  = .006). Compared with their male colleagues, female residents were less frequently married (1950 of 3920 men [49.7%] vs 886 of 2761 women [32.1%]; P  < .001), had a minor child (946 of 3914 men [24.2%] vs 286 of 2758 women [10.4%]; P  < .001), or were pregnant or expecting a child (568 of 3908 men [14.5%] vs 170 of 2757 women [6.2%]; P  < .001). Large programs had a higher proportion of female residents (eg, largest vs smallest quartile: 717 of 1587 residents [45.2%] vs 635 of 1771 residents [35.9%]; P  < .001), as did university programs (eg, 1691 of 3869 residents [43.7%] vs 1039 of 2708 residents [38.4%] in independent programs; P  < .001) and programs with higher proportions of female faculty (eg, highest vs lowest quartile: 638 of 1452 residents [43.9%] vs 599 of 1529 residents [39.2%]; P  = .04) ( Table 1 ).

Of the 5640 residents (3288 men and 2352 women) who responded to questions regarding gender discrimination, 2440 residents (43.3%) reported experiencing at least 1 of the listed discriminatory behaviors. The most common type of gender discrimination was being mistaken for a nonphysician (1943 residents [34.5%]). Compared with male residents, female residents were more likely to experience discrimination overall (562 men [17.1%] vs 1878 women [79.8%]; P  < .001), including every discrimination subtype (eg, being mistaken for a nonphysician: 130 men [4.0%] vs 1813 women [77.1%]; P  < .001; different standards of evaluation: 307 men [9.3%] vs 1014 women [43.1%]; P  < .001). Among residents who reported experiencing gender discrimination, women had more frequent experiences (eg, weekly or greater: 1241 of 1878 women [66.1%] vs 86 of 562 men [15.3%]; P  < .001) ( Table 2 ). The most common type of discrimination among male residents was a negative reaction to pregnancy and childcare needs (104 of 1000 men [10.4%]); however, this type of discrimination was more common among female residents (131 of 328 women [39.9%]; P  < .001), with coresidents/fellows reported as the most frequent source. Among female residents who reported being advised not to have children or experiencing different standards of evaluation or denial of opportunities, the most common source was attending physicians; among those who reported being mistaken for a nonphysician, the most common source was patients/families. Among women who reported feeling socially isolated or experiencing negative reactions to pregnancy and childcare needs, the most common source was coresidents/fellows ( Table 3 ).

Among 5775 residents (3360 men and 2415 women) who answered questions regarding sexual harassment, 1747 residents (30.3%) reported experiencing at least 1 listed behavior. The most common type of sexual harassment was crude, demeaning, or explicit comments (1557 residents [27.0%]). More female residents reported experiencing harassment overall (1026 women [42.5%] vs 721 men [21.5%]; P  < .001), including most of the harassment subtypes (eg, crude, demeaning, or explicit comments: 901 women [37.3%] vs 656 men [19.5%]; P  < .001; unwanted verbal sexual attention: 531 women [22.0%] vs 213 men [6.3%]; P  < .001; offensive body language: 420 women [17.4%] vs 188 men [5.6%]; P  < .001), with the exception of sexual coercion, for which there was no statistically significant difference (22 women [0.9%] vs 47 men [1.4%]; P  = .14). Among residents who reported experiencing sexual harassment, men had more frequent experiences (eg, weekly or greater: 124 of 721 men [17.2%] vs 122 of 1026 women [11.9%]; P  = .009) ( Table 2 ). Sources of harassment varied by gender and behavior ( Table 3 ). Among female residents who reported experiencing unwanted verbal sexual attention, offensive body language, and crude, demeaning, or explicit comments, the most common source was patients/families; among those who experienced unwanted sexual imagery, the most common source was coresidents/fellows. Among male residents who reported experiencing crude, demeaning, or explicit comments, the most common source was coresidents/fellows; among those who experienced unwanted verbal sexual attention, the most common source was nurses/staff.

After adjusting for individual- and program-level factors, women were more likely to report experiencing gender discrimination if they were pregnant or expecting a child (89.9% vs 80.1% among those not pregnant or expecting a child; odds ratio [OR], 1.93; 95% CI, 1.03-3.62) or had higher ABSITE scores (eg, highest vs lowest quartile: 84.6% vs 77.3%; OR, 1.67; 95% CI, 1.14-2.43). Men were more likely to report experiencing gender discrimination if they had lower ABSITE scores (eg, highest vs lowest quartile: 14.0% vs 21.8%; OR, 0.57; 95% CI, 0.43-0.76), had a minor child (23.9% vs 15.5% among those without a minor child; OR, 1.72; 95% CI, 1.31-2.27), or were training in the Northeast (eg, 19.7% vs 15.6% among those training in the Southeast; OR, 1.37; 95% CI, 1.00-1.88). No other factors, including gender of leadership and gender distribution of residents or faculty, were associated with discrimination ( Table 4 ).

Sexual harassment experiences were more likely to be reported by women in PGY-2/3 (43.2%) vs PGY-1 (35.8%; OR, 1.42; 95% CI, 1.11-1.82) or PGY-4/5 (48.8%; OR, 1.77; 95% CI, 1.40-2.24), women with higher ABSITE scores (eg, highest vs lowest quartile: 49.2% vs 41.6%; OR, 1.40; 95% CI, 1.07-1.83), women in military programs (eg, 55.6% vs 44.0% among those in university programs; OR, 1.89; 95% CI, 1.02-3.48), and women in programs with higher proportions of female faculty (eg, highest vs lowest quartile: 45.7% vs 39.7%; OR, 1.33; 95% CI, 1.01-1.75). Among male residents, sexual harassment was associated with seniority (eg, PGY-4/5 vs PGY-1: 24.4% vs 18.8%; OR, 1.31; 95% CI, 1.01-1.70). No other individual or programmatic factors, including the gender of leadership and gender distribution of residency programs, were associated with harassment ( Table 4 ).

Program-level rates ranged from 0% to 88.9% for gender discrimination (median, 42.9%; interquartile range [IQR], 33.3%-52.1%) and 0% to 80.0% for sexual harassment (median, 29.8%; IQR, 20.0%-38.2%). The gender composition of residency programs was highly correlated with program-level rates of gender discrimination ( r  = 0.64; 95% CI, 0.56-0.70) but minimally correlated with program-level rates of sexual harassment ( r  = 0.17; 95% CI, 0.06-0.28) ( Figure ).

To our knowledge, this survey study of gender discrimination and sexual harassment experiences among a large sample of residents in general surgery programs with a high response rate represents the most comprehensive analysis of gender discrimination and sexual harassment in any field of medicine. A total of 80.0% of female residents reported experiencing gender discrimination and 42.5% reported experiencing sexual harassment, with lower but substantial reporting of discrimination and harassment by male residents and wide program-level variability. Sources of gender discrimination and sexual harassment varied by behavior and residents’ gender. These data may provide insight to individuals working toward gender equity in the medical field.

The gender discrimination and sexual harassment rates identified by querying specific behaviors were higher than those calculated by pooled estimates in a meta-analysis 14 and those of a previous survey study wherein respondents self-defined the terms. 15 Because gender biases in the medical field are often insidious, 32 - 35 the provision of defined terms and types of bias in the present survey may have allowed more accurate recollection. In addition to increasing the accuracy of prevalence estimates, the enumeration of specific behaviors provided a more comprehensive characterization of the experience of discrimination and harassment. The most common form of gender discrimination reported by female residents was being mistaken for a nonphysician. Consistent with findings from previous studies, 36 - 38 the most common source of this microaggression was patients/families. Although less egregious than other forms of mistreatment (eg, inappropriate touching), microaggressions can negatively impact cognition 39 and have substantial cumulative consequences for clinicians. 32 , 34 Attending physicians were the most common source of gender discrimination based on opportunities and evaluation; this finding is consistent with previous studies reporting decreased opportunities for operative autonomy for female residents 40 as well as more rapid progression through the Accreditation Council for Graduate Medical Education milestones 41 and a greater number of awards given to male residents. 42 Such gender discrimination has important potential consequences for clinical competence and career advancement.

Male residents also experience gender discrimination and sexual harassment, albeit less frequently than women. 7 , 15 The most common harassment behavior reported by men was crude, sexually demeaning, or explicit remarks, stories, or jokes, and the most common source of this behavior was coresidents/fellows. These findings suggest that sexual humor among health care professionals, particularly among peers, is ubiquitous. 38 , 43 Unwanted verbal sexual attention was the second most prevalent type of harassment reported by men, with nurses/staff identified as the most common source. Men may not label these behaviors as harassment, particularly given the difference in context (eg, the lack of a power differential), compared with that of their female colleagues. 43 This factor may contribute to the underreporting observed in a previous study, 15 in which behavioral prompts were not provided. Although some may question the utility of investigating events in which the person reporting the behavior does not feel harassed, such behaviors are clearly unprofessional.

Gender discrimination experiences were more likely to be reported by pregnant women and men with a minor child. Negative reactions to pregnancy or childcare needs were reported by 39.9% of women and were the most common type of gender discrimination reported by men. Bias against parenthood in the field of surgery, particularly toward women, has previously been reported 28 , 29 , 44 ; however, these studies were limited by small sample sizes, incalculable response rates, and the requirement for surgeons to recall experiences over the course of their careers rather than a single academic year. Women in the field of surgery have reported being explicitly and implicitly discouraged from becoming pregnant during training; 15% of surgical program directors admit to advising against pregnancy during training, and 61% believe that parenthood negatively impacts women’s work (compared with 34% for men). 28 Such discrimination may contribute to unequal personal sacrifices, which women may feel are necessary to train as physicians. 45 , 46 Consistent with previous work, 47 - 49 the present study found that female residents were less likely to be married, have a minor child, or be expecting a child compared with their male counterparts. Eliminating discrimination against parents of both genders is important because discrimination may create incentives for male physicians to take less active parenting roles 44 , 50 and may exacerbate gender stereotyping at work.

Female residents with the highest ABSITE scores were more likely to report experiencing gender discrimination and sexual harassment, whereas male residents with low ABSITE scores were more likely to report experiencing gender discrimination. These differences may be associated with gender stereotypes. Confidence and assertiveness, which one might expect in high-performing surgical residents, are often perceived positively in men but negatively in women. 51 In addition, male surgical residents may be more susceptible to stereotype threat, which is the risk of confirming negative stereotypes 52 ; in a multi-institutional randomized study of surgical residents, 52 evoking pro-male stereotypes was reported to improve engagement among men, whereas exposing men to data supporting gender neutrality was reported to worsen their technical performance. The loss of gender advantage may therefore adversely impact male performance on examinations or, alternatively, men with lower examination scores may perceive a loss of dominance as discrimination. 53 , 54 Regardless of gender, senior residents were more likely to report experiencing sexual harassment, potentially associated with increased familiarity that blurs professional boundaries and/or increased one-on-one interactions.

At the program level, gender distribution was correlated with rates of gender discrimination. The capacity to recognize behaviors as discriminatory may improve with increasing numbers of women in the workplace. However, the correlation between the proportion of female residents and sexual harassment was minimal. Characteristics of local context (eg, organizational policies or the societal norms of the surrounding community) that were not reflected in the evaluated program variables may, at least in part, explain this finding. Nonetheless, considerable program-level variation in rates of gender discrimination and sexual harassment suggests that improvement is possible.

The Surgical Education Culture Optimization Through Targeted Interventions Based on National Comparative Data (SECOND) clinical trial, 55 a cluster-randomized study of 215 general surgical residency programs across the US, was recently initiated. In this trial, residency programs in the intervention arm receive aggregated reports of their residents’ perceptions of various aspects of the learning environment (in which mistreatment is a prominent feature) compared with other programs in the country. In addition, these programs receive access to a toolkit of ready-to-implement interventions (eg, programmatic and institutional practices, policies, and infrastructure) to improve the learning environment. These data will inform protocols on recognizing, coping, and responding to gender discrimination and sexual harassment. In the interim, Sexual Harassment of Women, published by the National Academies of Sciences, Engineering, and Medicine in 2018, 2 includes several chapters with action items.

This study has several limitations. First, the data originate from surgical residents and therefore may not be generalizable to residents who are training in other specialties. Second, the survey was administered after the ABSITE examination, which may have subjected respondents to recall biases associated with either postexamination anxiety or elation. Third, despite assurances of survey confidentiality, residents may have been reluctant to report sensitive exposures, producing underestimations of prevalence. Fourth, respondents selected only 1 source for each behavior, which simplified analyses but likely underestimated the pervasiveness of mistreatment. Fifth, we inquired about discrimination based on gender, gender identity, or sexual orientation because these concepts are intricately associated 56 ; as a consequence, it was not possible to distinguish, for example, discrimination experienced by straight cisgendered women from that experienced by lesbian cisgendered women or by individuals who identify as nonbinary.

This study’s results suggest that gender discrimination and sexual harassment are common among surgical residents, originate from variable sources, and are associated with different individual- and program-level factors. These data may be used to inform interventions to mitigate gender discrimination and sexual harassment, which is a necessary step toward gender equity in health care.

Accepted for Publication: April 26, 2021.

Published Online: July 28, 2021. doi:10.1001/jamasurg.2021.3195

Corresponding Author: Yue-Yung Hu, MD, MPH, Surgical Outcomes and Quality Improvement Center, Department of Surgery, Feinberg School of Medicine, Northwestern University, 633 N St Clair St, 20-038, Chicago, IL 60611 ( [email protected] ).

Author Contributions: Drs Schlick and Hu had full access to all of the data in the study and take responsibility for the integrity of the data and the accuracy of the data analysis.

Concept and design: Schlick, Ellis, Etkin, C. C. Greenberg, Turner, Hoyt, Bilimoria, Hu.

Acquisition, analysis, or interpretation of data: Schlick, C. Greenberg, J. A. Greenberg, Buyske, Nasca, Bilimoria, Hu.

Drafting of the manuscript: Schlick, Etkin, J. A. Greenberg, Buyske, Hoyt, Nasca, Bilimoria, Hu.

Critical revision of the manuscript for important intellectual content: Schlick, Ellis, C. C. Greenberg, J. A. Greenberg, Turner, Nasca, Bilimoria, Hu.

Statistical analysis: Schlick, Ellis, Bilimoria, Hu.

Administrative, technical, or material support: Etkin, Hoyt, Nasca, Hu.

Supervision: Etkin, J. A. Greenberg, Turner, Buyske, Bilimoria, Hu.

Conflict of Interest Disclosures: Dr C. Greenberg reported receiving consulting fees from Johnson & Johnson, which were directed toward the nonprofit Academy for Surgical Coaching, outside the submitted work. Dr J. Greenberg reported receiving grants from BD Interventional and Medtronic outside the submitted work. No other disclosures were reported.

Funding/Support: This study was funded by grants 5T32HS000078 (Dr Ellis), R01HS025989 (Dr Greenberg), and R01HS024516 (Dr Billimoria) from the Agency for Healthcare Research and Quality; a grant R01HL076180 from the National Heart, Lung, and Blood Institute (Dr Hoyt); grants from the Accreditation Council for Graduate Medical Education (Drs Billimoria and Hu) and the American College of Surgeons (Drs Billimoria and Hu); and in-kind support from the American Board of Surgery.

Role of the Funder/Sponsor: The funding organizations had no role in the design and conduct of the study; collection, management, analysis, and interpretation of the data; preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication. Dr Hoyt, who is employed by the American College of Surgeons, and Dr Nasca, who is employed by the Accreditation Council for Graduate Medical Education, were involved in the conduct of the study, interpretation of the data, and review of the manuscript.

Disclaimer: The views expressed in this article represent those of the authors only.

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Oxford college threatens to expel students who misgender trans peers

Regent’s Park College unveils harassment policy with tough measures for anyone caught ‘consistently using incorrect pronouns’

Students at the University of Oxford could be expelled for misgendering their peers under a college’s new transgender harassment policy.

Regent’s Park College – once called home by the goddaughter of the late Diana, Princess of Wales – has launched a campaign against transphobia with a “trans inclusion statement” .

The new policy says that “unlawful discriminatory behaviour, including transphobic harassment or bullying … will be regarded extremely seriously and could be grounds for disciplinary action”.

The statement lists examples of harassment, including “consistently using incorrect titles, pronouns or names to refer to a trans person (‘deadnaming’) especially where this causes distress ”.

The college’s students are also banned from “unduly intrusive or personal questioning”, “making jokes about trans people or their trans status” and “denying or disputing the validity and/or existence of a trans person’s identity ”.

Students found to have broken the policy may face “expulsion or dismissal”, the statement continued.

Gender identity ‘a protected characteristic’

Regent’s Park College is thought to be the first college to recognise gender identity as a protected characteristic by implementing a specific policy about it.

The college said it believes “gender reassignment” is not an “exclusively medical” term and also has “personal” dimensions.

Its statement said: “Individuals perceived as having the protected characteristic of gender reassignment (even incorrectly) are still afforded its protections.”

The news came days after a heated debate, at the Oxford Union, about transgender rights prompted by the appearance of Prof Kathleen Stock , who has gender-critical views.

The talk was disrupted for about 10 minutes after Riz Possnett , a student activist, glued their hand to the floor and was escorted out of the society’s debating chamber by police.

Prof Stock left her job at the University of Sussex two years ago after she was criticised for questioning the view that gender identity is more significant than biological sex.

The protester was later “de-arrested” and Thames Valley Police said “the event organisers did not support prosecution”.

Prof Stock said that the protest was “a bit Blue Peter” and argued that protesters “were not representative” of the wider student body.

Peter Tatchell, the gay rights campaigner, withdrew from a debate at the Oxford Union on Thursday night over its decision to host the academic earlier in the week.

Regent’s Park is a small Oxford college run by Prof Sir Malcolm Evans, a legal scholar who served on the panel of the Independent Inquiry into Child Sexual Abuse.

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Opinion: Transgender assemblywoman's struggles light path to a better society in Japan

O ne day, this reporter received an email from 70-year-old Sayuri Kojima, a member of the municipal assembly in Kasugai, Aichi Prefecture. "Do you want to come interview me?" the email read. Kojima was born male, but is now legally a woman under her family register after undergoing gender transition surgery.

I first met Kojima after she was elected to the assembly in April 2023, and I was curious about her day-to-day life as one of an estimated 20 or so LGBTQ+ individuals in local assemblies across Japan.

During a Kasugai Municipal Assembly meeting this past March, Kojima stood up and asked a question. "Does this assembly intend to draft an ordinance on harassment?"

The events that led her to ask this question began on Jan. 19. That evening, 15 people including assembly members were at a social gathering. "An old man is here," said fellow assembly member Shinjiro Murakami -- a remark directed at Kojima. Having downed some drinks, attendees were having a good time. Kojima heard what Murakami had said but shook it off, wearing a bitter smile. She was thinking, "I don't want to be a wet blanket. I'd feel bad."

Deeply hurt by the comment, Kojima immediately split from Murakami's faction in the assembly. She also suffered mentally and was subsequently diagnosed with an autonomic nerve disorder and went on temporary leave. Murakami admitted to having made the comment and told reporters, "I said it thinking I'd introduce (Kojima's) interesting personality, but now I'm regretful."

Just after being elected, Kojima had high hopes, because a suggestion was made in her faction to set up an LGBTQ study group. The remark came just as these developments were being made in the assembly.

Kojima originally became an assembly member hoping others would not have to experience the pain she went through, to change things for the better, if even just a little bit. "But even after becoming a lawmaker, the hurdles are still high, and the barriers thick," she commented.

Just what sort of troubles has Kojima faced throughout life?

She was born the first son to a family that ran a coffee shop in a Nagoya shopping district. She was a shy child, teased for being "like a girl." She had felt uneasy about things like wearing a boys' "gakuran" school uniform and having a shaved head. "I didn't want to be alive," she recalled.

What saved her was music. Starting in junior high school, she immersed herself in folk songs played on late-night radio. With artists like Kaguyahime and Takuro Yoshida, it was the golden age of folk music in Japan. She formed a band with friends she met in university and played the guitar.

After some time as a company worker, at age 27 she founded a cafe and live music venue. Although her shop struggled financially, it made a name for itself in Nagoya. In 1982, Kojima got married to a woman who was a regular patron, and the couple eventually became parents.

In this world, it's a norm for those born as male to get married and have families. Though feeling uncomfortable, Kojima, too, went along with this. "As far as I knew, at the time there was no such thing as 'gender discomfort.' It was that kind of era," she recalled.

Kojima only realized her gender was at the root of her discomfort at the age of 57, some time after divorcing. She read in a newspaper about the opening of a bar in Nagoya that welcomed people of diverse sexualities. "I thought, 'I have to go there,'" she recalled.

Kojima became a regular at the bar and connected with others like her. Sharing her worries made her feel better. She wore makeup for the first time and participated in an LGBTQ community parade. At age 62, she was diagnosed with gender dysphoria and began hormone therapy.

As her body began to change, she resolved to come out to her family and the students of a computer training school she managed. Kojima came out to her mother the last, who told her, "Live as you please." Her fears that everyone would distance themselves from her proved unfounded.

Following gender reassignment surgery, Kojima changed her gender to woman in the family register. She felt as though the costume of a man had been shed, and she had returned to her original self. At the same time, she strongly felt that she wanted to convey her experiences to others who carried the same worries.

Even after deciding to live true to who they are, people like Kojima face many barriers -- from getting changed for medical examinations to changing the name and gender for one's bank accounts and on official documents. Kojima overcame these obstacles one by one, explaining herself countless times and pleading for consideration. That is exactly what made the "old man" comment, which ignored all of her hard work and struggles, so unforgivable, said Kojima.

Kojima wishes for a world where people can live life the way they are, and be free of being hurt or hurting others. It appears that more time will be needed for the drafting of an anti-harassment ordinance, but I believe that at the end of Kojima's aspirations awaits a society everyone hopes to achieve.

(Japanese original by Richi Tanaka, Nagoya News Center)