The Equalities and Human Rights Commission is running a six week consultation process on changes following the Supreme Court’s judgment on the definition of sex.On 16 April, the court made the legal position on the definition of ‘sex’ in the Equality Act 2010 clear: a woman is a biological woman, and a man is a biological man.
Consultation is now taking place for proposed changes in the Code of Practice that enables employers to comply with the Equality Act. These include
Chapter 2 – Who has rights
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- New content explaining that GRCs do not change people’s legal sex, and what protections trans people have, whether or not they have a GRC.
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- New information about how requests about sex at birth should be made and new content on defining sex at birth.
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- Updated description of sexual orientation, which specifies that a person attracted to the same sex is either a lesbian woman or a gay man.
Chapter 4 – Direct discrimination
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- A new example on sex discrimination by perception, in the context of sex and gender reassignment.
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- Revised content on pregnancy and maternity discrimination, in the context of trans men.
Chapter 5 – Indirect discrimination
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- A new example which explains how indirect sex discrimination can occur when people experience the same disadvantage, even if they do not share the same protected characteristic, in the context of sex and gender reassignment.
Chapter 8 – Harassment
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- An updated example on harassment related to sex, which explains how harassment can occur based on a perceived protected characteristic, in the context of sex and gender reassignment.
Chapter 12 – Associations
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- A new example on women-only associations, which explains when applications can be lawfully refused in the context of sex and gender reassignment.
Chapter 13 – Exceptions
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- An updated section on competitive sport.
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- An updated section on how single-sex services can be provided for men and women.
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- A new section on the justification for single-sex services, including potential legal implications of providing only mixed-sex services.
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- New content on policies and exceptions for single-sex services, which explains that service providers may need to develop policies regarding their provision.
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- An updated section on single-sex services in relation to gender reassignment, which explains that service providers should consider their approach to trans people’s use of services when deciding whether to provide a single-sex service.
This area of the law is getting increasingly complex and the consultation closes on 30th June. It will be interesting to see how the Supreme Court’s ruling will be applied practically whilst being mindful of the need to treat everyone with respect and ensure non-discriminatory behaviour in the workplace.
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