The progress of employment rights for the LGBTQ+ community

June marks LGBTQ+ Pride Month and so here we take a look at how the working rights of people from the LGBTQ+ community have improved since the turn of the millennium.

Since the turn of the century there have been several notable legislative changes that have seen widespread benefit for people from the LGBTQ+ community.

Changes within the military

Not long after the chimes stopped ringing to welcome us into the year 2000, we saw the first significant change to employment law for the LGBTQ+ community of this millennium. On 12 January 2000, a ban was lifted on openly lesbian, gay and bisexual people serving in the armed forces.

Up until that point, anyone within the armed forces who was found to be lesbian, gay or bisexual was dishonourably discharged and on occasion, stripped of their medals – with some even being arrested. These laws prior to 2000 meant that any military personnel who were homosexual had to hide their identity or risk the repercussions.

Today, LGBTQ+ personnel within the armed forces have equal rights; including family leave entitlement and pension arrangements, as well as transgender personnel now being welcome to join.

Despite the progression in the law, even after the ban was lifted in 2000, it still took some time for many within the military to feel confident enough to be open about their sexuality. There are now a number of charities that support serving military personnel and veterans in navigating the complexities of being from the LGBTQ+ community in the armed forces.

The Employment Equality (Sexual Orientation) Regulations 2003

A couple of years later we saw a ground-breaking change to the way in which discrimination of people from the LGBTQ+ community would, or more to the point would not, be tolerated in the workplace.

Before December 2003, there was no specific legislation protecting against discrimination on the grounds of sexual orientation in UK workplaces. Attempts had been made to use the Human Rights Act 1998 and the Sex Discrimination Act 1975, with varying degrees of success.

The Employment Equality (Sexual Orientation) Regulations 2003 prohibited discrimination, both direct and indirect, and harassment on the grounds of sexual orientation in the workplace. This covered a variety of areas where people from the LGBTQ+ community had previously been subject to discrimination – including recruitment, pay, promotion and dismissal. It also meant that any harassment of people because of their sexual orientation, whether that be intimidating them or creating a hostile working environment, was illegal and could lead to claims being made against an employer.

The Regulations also extended to education, whereby it became illegal to discriminate against anyone based on their sexual orientation when they were applying to higher education institutions for example.

The law safeguarded individuals who suffered discrimination or harassment because of the sexual orientation of their family and friends too.

The Gender Recognition Act 2004

This Act provided a means by which a person could apply for legal recognition of their acquired gender through the issue of a Gender Recognition Certificate (GRC).

Applicants must be at least 18 years old, and their applications would be considered by the Gender Recognition Panel, who, if happy that an application meets the requirements of the Act, will issue a full GRC to the applicant.

The requirements that need to be met are that the applicant:

• has, or has had, gender dysphoria;
• has lived in the acquired gender throughout the preceding two years; and
• intends to continue to live in the acquired gender until death.

Once issued the full GRC, the individual will be entitled to a new birth certificate which reflects the acquired gender.

The Equality Act 2010

The Employment Equality (Sexual Orientation) Regulations 2003 were revoked on 1 October 2010 and replaced by the Equality Act 2010.

The Equality Act was enacted to codify all the discrimination legislation (apart from the Equal Pay Act 1970) in a single Act. It provides protection for people against discrimination on the grounds of any protected characteristics (including sexual orientation and gender reassignment) and gives them the right to pursue claims where they have been subjected to any discrimination, for instance in the Employment Tribunal, for any acts occurring in their employment or in the county court for acts by providers of services, such as while using public transport.

What next?

Employment Tribunal claims alleging unlawful discrimination on the grounds of sexual orientation or gender reassignment remain relatively rare¹ as do claims about discrimination on the grounds of religion or philosophical belief.²

However, it is the overlap, and sometimes clash, in the workplace between on the one hand the rights of transgender people to choose their gender, and on the other hand, the rights of people who have a philosophical belief that sex and gender are separate which appears to be the most volatile area for claims. The public debate on this is increasingly polarised.

There have been several Employment Tribunal claims about this, including the high-profile claim brought by Maya Forstater in which the Employment Appeal Tribunal confirmed that a “gender-critical” belief was capable of being a protected characteristic. However, the law about what is (or is not) discriminatory conduct in relation to the overlap between such a belief and gender identity (to the extent that this is covered by the protected characteristic of gender reassignment) remains very much a work in progress.

In April this year the Equality and Human Rights Commission (EHRC) published initial guidance advice to the Minister for Women & Equalities, suggesting that the definition of ‘sex’ in the Equality Act 2010 should mean ‘biological sex’ – not including a person’s ‘gender’ – and considers that this will have benefits in several areas, including freedom of association for lesbians and gay men. At the same time the EHRC acknowledges that making this change to the Equality Act could impact transgender people who hold a GRC stating their legal (but not biological) sex. For example, at the very least it could mean that a transgender woman with a GRC stating that they are female who wanted to bring a direct or indirect discrimination claim based on their sex (being a protected characteristic) would have to bring the claim based on the discriminatory treatment being because of their biological sex (male) and not their legal sex (female). This could make it far more difficult for that type of claim to succeed.

The EHRC letter has received both support and criticism and, regardless of the response from the UK Government, that mixed response is unlikely to change. Whether the EHRC letter signals a longer-term change in approach and a high-water mark for LGBTQ+ rights remains to be seen but what seems clear is that the gender identity debate is likely to be a challenging one for employers to navigate smoothly for quite some time.

Find out how the Gateley Pride network group supports our LGBTQ+ community and raises awareness across our business.