The UK Government has, controversially, announced that it is exercising its power to prevent Scotland's Gender Recognition Bill becoming law. One of the reasons it has given is the impact on discrimination law under the Equality Act 2010, which applies throughout the UK. But how do gender recognition certificates (which have been available in the UK since 2004) affect discrimination law?
Employers might be surprised to learn that, until recently, there was some uncertainty about how holding a gender recognition certificate (GRC) affects a trans person's position under the Equality Act.
"Gender reassignment" under the Equality Act
Some aspects of the law have been clear from the outset. A holder of a GRC will undoubtedly have the protected characteristic of gender reassignment - but, importantly, there is no need for a person to have a GRC to have this protected characteristic. "Gender reassignment" includes anyone who is going through, has gone through, or is proposing to go through a process of gender transition. It doesn't require surgery, medical treatment or a GRC. People with this protected characteristic (or who are perceived to have it, or associated with someone who has it) are protected against unlawful discrimination under the Equality Act.
The statutory guidance issued by the EHRC emphasises that, in the vast majority of situations, trans staff should be treated according to their affirmed gender ("assigned gender" is the language of the Equality Act, but is regarded as old-fashioned or offensive by some trans people). Trans staff who hold a GRC should not be routinely asked for their GRC and information about their transition should be kept on a strictly need-to-know basis. Disclosing such information without consent can have criminal implications and, in many cases, will be a breach of data protection law.
Effect of a GRC
A GRC entitles an individual to change the sex recorded on their birth certificate, get married or form a civil partnership in accordance with their affirmed gender and ensure that their death certificate records their sex in line with their affirmed gender. To obtain a GRC in England and Wales, an applicant does not need to have undergone surgery but must have a medical diagnosis of gender dysphoria, be able to demonstrate that they have lived in their affirmed gender for two years and intend to live in that gender for the rest of their life. The GRC changes the person's legal sex except where legislation expressly provides otherwise.
One point which has been debated is whether a GRC changes a person's sex for the purposes of the Equality Act. So, for example, could a trans woman holding a GRC be treated as a male comparator in an equal pay claim? Pre-Equality Act cases stated that, when their transition is well-advanced, trans employees should be treated as a member of their affirmed gender for discrimination law purposes, but these cases did not deal explicitly with the effect of a GRC. However, a recent ruling in the Scottish courts held that the definition of "sex" in the Equality Act relates to legal, rather than birth, sex. So a trans woman holding a GRC would be a woman under sex discrimination law. Although the ruling is not strictly binding in England, it's likely to be followed.
A lot of commentary has focused on the impact of this case on single-sex services and facilities. If a GRC holder is a woman under the Equality Act, a provider could not justify excluding her from the provider's services on the basis that the services are provided only to women. Instead, the provider would need to justify excluding women with the protected characteristic of gender reassignment from the service in question. It is likely to be more difficult to justify the latter as being a proportionate way of achieving a legitimate aim, depending on the nature of the services. Service providers seeking to justify exclusion would need compelling evidence in order to do so.
Effect of the Gender Recognition Reform Bill
The GRR Bill is intended to de-medicalise and simplify the process of obtaining a GRC in Scotland. 16 - 18 year olds would also be able to obtain a GRC in Scotland if the Bill becomes law, and the length of time the person must have lived in the affirmed gender will be reduced to three months. If the Bill becomes law, the procedure in England and Wales will be unaffected.
The UK Government's decision to block the Bill is likely to be challenged in the courts, although the outcome is difficult to predict.
Guidance for employers
Employers should continue to follow the EHRC's statutory guidance in relation to trans staff. They should also be aware of the impact of public debate on staff - while employers should not seek to prevent staff expressing views in a reasonable and considerate way, they should take reasonable steps to ensure that this does not cross the line into unlawful harassment or is likely to affect working relationships. It may be worth reviewing social media and EDI policies to ensure that they strike the right balance.