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About sexual orientation and gender identity discrimination

This page explains what sexual orientation and gender identity discrimination is and how the law protects you.

What is sexual orientation?

Your sexual orientation defines whom you are attracted to physically and emotionally - whether you are attracted to people of the opposite sex, or the same sex, or both.

What is gender identity?

Your gender identity is the gender you feel that you are inside. The gender you identify with may not necessarily be the same as the physical sexual characteristics you were born with. The term commonly used to describe people whose gender identity conflicts with society's 'gender norms' or expectations is transgender. This includes:

  • transsexual people, who are usually distinguished from other transgender people by their strong desire to live completely and permanently as the gender opposite to that which they were originally labelled at birth
  • transvestites who feel a strong recurring desire to cross-dress but are generally perfectly happy with their birth gender and have no wish to permanently alter the physical characteristics of their bodies
  • various other transgender people, who do not feel comfortable simply identifying as either male or female, feeling instead that their gender identity is more complicated to describe. They may describe themselves as third-gender, androgyne, genderqueer or polygender.
  • people with intersex conditions in which external genitalia, internal reproductive system or chromosomes are not classically 'male' or 'female'. There are a number of different intersex conditions.

This booklet on gender identity written by transgender groups from across Scotland has more information.

What is sexual orientation and gender identity discrimination?

Sexual orientation discrimination occurs if you are treated less favourably than someone else because you are lesbian, gay, bisexual, heterosexual or transgender. You may find yourself discriminated against because someone thinks you're gay, even if you're not, or because you have gay friends. However, this still counts as discrimination.

Gender identity discrimination occurs if you are treated less favourably than someone else because you are transgender.

Am I protected against sexual orientation discrimination?

The Equality Act protects you from sexual orientation discrimination:

  • at school, college or university
  • when renting or buying a home
  • when you buy goods or use services provided by, for example:
    • shops
    • pubs, restaurants and nightclubs
    • banks, insurance companies and other financial institutions
    • cinemas, theatres and leisure centres
    • hotels and B&Bs
    • public transport, travel agents and airlines
    • builders, plumbers and other tradespeople
    • doctors, hospitals and other health providers
    • the council.

The information on this website is mainly concerned with your rights in housing situations. If you think you've been discriminated against at work on the basis of your sexual orientation visit's page on sexual orientation discrimination in the workplace.

What kind of discrimination am I protected against?

There are three kinds of sexual orientation discrimination:

  • direct discrimination,
  • indirect discrimination, and
  • victimisation.

What is direct discrimination?

Direct discrimination takes place if you are treated less favourably than a person of a different sexual orientation would be treated in a comparable situation. For example, direct discrimination occurs if:

  • you are refused a service because of your sexual orientation or perceived sexual orientation (for example, if a mortgage lender turns down an application from a gay couple or a couple in a civil partnership, but accepts an application from a heterosexual couple or married couple in a similar financial situation)
  • you are offered a lower standard of service because of your sexual orientation or perceived sexual orientation (for example, if a landlord charges someone they believe to be gay a higher deposit than their other tenants are charged).

What is indirect discrimination?

Indirect discrimination takes place when a service provider (for example, a landlord or the council) introduces for no good reason a rule or policy that applies equally to everyone but is more restrictive for people of a particular sexual orientation.

What is victimisation?

If you are treated badly because you have complained about discrimination, or have helped another person complain, this is victimisation.

How does this affect my housing rights?

It's illegal for a landlord, letting agent, estate agent, council or housing association to discriminate against you because of your sexual orientation or perceived sexual orientation. This includes when they are letting or selling houses, flats, mobile homes, business premises, hotels and holiday accommodation and even agricultural land.

As the law covers services provided by financial institutions, it's also illegal for mortgage lenders to discriminate on the grounds of sexual orientation.

This means that the Equality Act is likely to protect you in the following situations.

Renting a home

If you're renting accommodation, sexual orientation discrimination may occur if:

  • a landlord or letting agency won't allow you to view a property for rent, because of your actual or perceived sexual orientation, or specifies in an advert that the property is only available to married couples
  • a landlord or letting agency gives a gay tenant worse terms in their tenancy agreement than other heterosexual tenants they let property to
  • a landlord or letting agency charges a gay person a higher rent or larger deposit than other tenants they let similar properties to
  • a landlord or letting agency restricts your use of facilities that other tenants have full access to (such as kitchen facilities or a communal garden)
  • a landlord or letting agency tries to evict you because they find out you are gay
  • a council or housing association refuses to put your name down on their housing waiting list, or puts you lower down the list than other people who are in the same situation as you
  • a council or housing association gives you a short Scottish secure tenancy instead of a Scottish secure tenancy.

Buying a home

If you're buying a home, discrimination may occur if:

  • an estate agent or owner won't let you look round a property that's up for sale or refuses your offer on a property because they don't want to sell to a gay person
  • a mortgage lender asks a gay man more questions about their health than a heterosexual man would be expected to answer
  • a mortgage lender sets more conditions for same sex couples than for opposite sex couples (for example, by insisting on a higher deposit).

Making a homeless application

You may also experience discrimination when you make a homeless application to the council. For example, this may be the case if:

  • a council refuses to accept a homeless application from you because you're LGBT
  • a council refuses to accept that you are homeless because you are fleeing domestic abuse from your same sex partner.

Are there any exceptions to the law?

There are some housing situations that are exempt from the law.

Home owners

Home owners can choose to let or not to let their property to people of certain sexual orientations if:

  • they live in the property as well, for example they are renting out a room to a lodger, and
  • they don't use an agent to let the property, and
  • they don't advertise the property for rent.

Resident landlords of small premises

Exceptions also apply if:

  • the person letting or subletting the property also lives there, or
  • a near relative of the person letting the home lives there (a near relative can be a wife or husband, civil partner, parent, child or adopted child, grandparent or grandchild, or brother or sister, including, for example, half-sister, step-sister and sister-in-law), and
  • they share accommodation with their tenants (for example, a living room or kitchen - shared storage space doesn't count), and
  • the home is classed as a 'small premises' - this means that, in addition to the person letting the property and their family, there are no more than:
    • two other households living there (for example, two couples or families), or
    • six unrelated people living there.

Religious organisations and charities

If a religious organisation provides accommodation (for example, in a refuge or hostel) it has the right to restrict who can stay there, in order to comply with its beliefs. LGBT charities also have the right to provide accommodation solely for LGBT people.

What can I do if I'm being discriminated against?

If you think that a landlord, council, mortgage lender or other service provider has discriminated against you, you can take action against them. Read the page on dealing with sexual orientation discrimination to find out more.

What if I'm transgender?

The new regulations don't specifically state that they cover transgender people as well as lesbian, gay and bisexual people. However, it may be possible to use these laws to tackle gender identity discrimination - because the laws are new, it's hard to say what decision a court would reach in this situation.

As transgender issues are not very well understood by many people in society, often transgender people are assumed to be lesbian, gay or bisexual. Therefore, a transgender person may also be able to use the new regulations on the basis of being discriminated against due to perceived sexual orientation.

If you feel you have been discriminated against because of your gender identity, talk to an adviser (see 'where can I get help and advice' below) or a solicitor.

What if I'm transsexual?

A transsexual person is someone who feels that inside they are the opposite gender to the physical gender they were born with. This is a medically recognised condition, also known as gender dysphoria or gender identity disorder. Most transsexual people transition to live permanently as their self-identified gender and many (but not all) take hormones and/or have surgery as part of their transition.

Transsexual people over 18 who have transitioned and have been living as their acquired gender for at least two years can now apply for a gender recognition certificate. They do not need to have had any surgery or hormones. This gives them all the legal rights of their new, acquired gender. This means that they can apply for a new birth certificate, showing their acquired gender, and can legally marry a person of the opposite sex, or register a civil partnership with a person of the same sex.

Transsexual people are now protected from sex discrimination and harassment in the workplace and when applying for jobs through the Equality Act 2010, but not in other settings, such as when buying or renting a home or applying for a mortgage. It may be possible to take action in these situations, but as no one has yet done so, it's hard to say what the court would decide. However, new regulations, similar to the regulations that have been introduced to protect people from discrimination on the grounds of sexual orientation, are due to be brought in at some point.

If you feel that you have been discriminated against by a service provider such as a landlord because you are transsexual and you wish to take further action, get in touch with the Equality and Human Rights Commission. They may be able to help you take your case to court.

You can find out more about gender recognition at the Gender Recognition Panel website.

Where can I get help and advice?

You can get help and advice about sexual orientation and gender identity discrimination issues from the Equality and Human Rights Commission (EHRC).

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