Discrimination because a person is trans is gender stereotyping. It is based on the thought that a man should not behave in a particular way. Here is Glenn v Brumby: Sewell Brumby sacked Elizabeth Glenn from her job in the Georgia Office of Legislative Counsel because of prejudice, claiming Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable. Previously, he had said that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.”
It is striking to see someone state their disgust so clearly. Brumby was open about this in his evidence: he testified at his deposition that he fired Glenn because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that Glenn would appear wearing women’s clothing. In the UK, employers would probably find some pretext for dismissal, knowing that such prejudice was frowned on. Under the particular law pleaded, Brumby’s defence could succeed if he had an “exceedingly persuasive justification… that there was a sufficiently important governmental interest for his discriminatory conduct”. He said women in the office might raise court action because they did not want to share a restroom with Ms Glenn, but in fact their office had only single occupancy restrooms.
The tradition of romantic paternalism puts women not on a pedestal, but in a cage. The courts seem to think there is a possibility that “reasoned analysis” may justify gender differences, but government acts based on gender stereotypes- which presume that men and women’s appearance and behavior will be determined by their sex- must be subjected to heightened scrutiny because they embody “the very stereotype the law condemns.” So there will be debate in court, but the discriminator must show a real reason, not an assumption based on a stereotype. Including the stereotype that men should not wear skirts.
So, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination. That would include any trans person, not just someone intending to transition.
In the Equality Act 2010, Scots and English law made a fundamental difference between discriminating on the ground of gender reassignment and on the ground of sex. The Act refers to “transsexual persons”. The union Unison’s website is confused: it translates this to “transgender” which it defines as those whose gender identity or expression doesn’t conform to the sex they were assigned at birth which could include non-binary people, or cross-dressers who want to dress female at work occasionally, but still refers to the laws on gender reassignment. To be protected, you have to have decided to live permanently as the other sex.
Could we use the protected characteristic of sex, and allege any objection to a man in women’s clothes was sex discrimination? Unfortunately, the Court of Appeal says that different treatment is lawful: to be unlawful, treatment must be “less favourable”. So a man can be required to wear a collar and tie, and have short hair, and a woman required to wear a skirt, if they come into contact with the public who might judge them on their appearance, and judge the employer because of them. You have to be smartly dressed because you meet the public. An Employment Appeal Tribunal said, there were in force rules restricting wearing apparel and governing appearance which applied to men and also applied to women, although obviously, women and men being different, the rules in the two cases were not the same. A recent case when women were not allowed unshaven legs, even when wearing tights, might be less favourable as more onerous, but you could not be certain.