Equality Act 2010
Historical development
Though the UK had anti discrimination legislation before 2010, the first prtections coming from the Race Relations Act in the 1960s, it was piecemeal and increasingly inept in dealing with a rapidly modernising Britain. As stated by Wadham:
‘before the introduction of the Equality Act, we had more than 100 different sets of equality legislation amassed in 35 Acts, 52 statutory instruments, 13 codes of practice and 16 European directives.’
This was particularly evident in the wake of the troubles in Northern Ireland where the nexus between poor discrimination rules in employment and the weakening of public institutions such as schooling and policing prompted the Council of Ministers of the European Union to unanimously agree on Directive 2000/78/EC in November 2000. Directive 2000/78/EC had the aim of ‘establishing a general framework for equal treatment in employment and occupation’ through the extension of equality protections and the elimination of discriminatory hiring practices across Member States by 2006, meaning the UK was set the ask of developing their discrimination law between 2000-2006.
As a part of this development, the then Labour government set up both an Equality Review ‘into the causes of persistent discrimination and equality in Britain’ with an aim ‘to inform both the modernisation of equality legislation towards a Single Equality Act; and the new Commission for Equality and Human Rights’ in February 2005. They also set up a Discrimination Law Review ‘to address long-term concerns about inconsistencies in the current discrimination law framework’.
The aim of this was not to create new law but to harmonise the pre existing laws within a single document. By May 2005, when labour was reelected, this single equality act had been outlined in their manifesto and it was not long before both their consultation paper ‘A Framework for Fairness: proposals for a Single Equality Bill for Great Britain’ was produced (June 2007) and the Commission for Equality and Human Rights (EHRC) had been created (October 2007)..
The Bill was introduced to the House of Commons on 24 April 2009.
Trans People's protection from discrimination under the pre-Equality Act law
Before the Equality Act, statutory protection from anti trans discrimination in the UK had its origins in the decision of the European Court of Justice (ECJ) in P v S and another 1996.
In P v S the claimant, a trans woman, was dismissed by her employer shortly before undergoing gender reassignment surgery. The claimant appealled under sex discrimination but an Employment Tribunal held that she had no redress under domestic law. This was because the then Sex Discrimination Act 1975 only protected those discriminated against on the grounds of their biological sex, and so did not cover transsexuals.
When P v S and another was referred to the ECJ, the Court ruled that it was a fundamental principle of European law and a requirement in Articles 2(1) and 3(1) of the EC Equal Treatment Directive (No.76/207) that there should be ‘no discrimination whatsoever on grounds of sex’. This was one of the fundamental human rights that the Court was obliged to protect and so its scope could not be confined. Thus the fact that anti trans discrimination pertained ‘essentially if not exclusively upon the sex of the person concerned’, meant the Sex Discrimination Act could not exclude transsexuals from its protection.
As a result of the European Court's judgement, the UK Government enacted the Sex Discrimination (Gender Reassignment) Regulations 1999 SI 1999/1102. This inserted s.2A into the Sex Discrimination Act, which prohibited direct discrimination and victimisation on the ground of gender reassignment.
Additionally in 2005, when the Employment Equality (Sex Discrimination) Regulations 2005 SI 2005/2467 inserted a new S.4A into the SDA to provide for protection from harassment, S.4A(3) extended protection to anyone who was intending to undergo, was in the process of undergoing or had undergone gender reassignment.
The law was lacking on two grounds, firstly trans people were not protected from indirect discrimination, secondly the Act required the trans person to have undergone a medically supervised gender reassignment procedure.
The law was lacking on two grounds, firstly trans people were not protected from indirect discrimination, secondly the Act required the trans person to have undergone a medically supervised gender reassignment procedure.
The Equality Act and Trans people
Protected characteristics
In s4 of the Equality Act is a list of ‘protected characteristics’, these are groups that are protected by the act from discrimination. Among them at s.7 is ‘gender reassignment’.
What is gender reassignment?
It is notable that the protected characteristic in s7 is gender reassignment and not gender identity. So what does that mean? To fall under gender reassignment one has to be
‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’
Protection applies to both sexes and at any stage of transition, as the Equality Act explanatory notes affirm:
"a woman making the transition to being a man and a man making the transition to being a woman share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing sex and a person who has completed the process"
So is this a medicalist definition? This could have been the case in Bellinger v Bellinger 2003, decided before the Equality Act. The case concerned a “same sex” marriage that was invalidated by S.11(c) of the Matrimonial Causes Act 1973, which required parties to marriage to be male and female. Here Lord Nicholls identified four ‘typical’ stages of gender reassignment: psychiatric assessment, hormonal treatment, a period of “lived experience” subject to professional supervision therapy and, in suitable cases, gender reassignment surgery. However this definition is not up to date with either modern ideas of trans identity, that allow trans identified people do not want surgery or hormones, or with the WHO’s ICD-11, which says trans issues are not mental health issues.
However the notes to the Equality Act suggests both medical and non medical transitions are protected, giving the following two examples of 'gender reassignment':
‘A person who was born physically male decides to spend the rest of his life living as a woman. He declares his intention to his manager at work, who makes appropriate arrangements, and she then starts life at work and home as a woman. After discussion with her doctor and a Gender Identity Clinic, she starts hormone treatment and after several years she goes through gender reassignment surgery. She would have the protected characteristic of gender reassignment for the purposes of the Act.’
and
‘A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He also would have the protected characteristic of gender reassignment for the purposes of the Act.’
Likewise the EHRC Employment Code says:
‘Under the Act “gender reassignment” is a personal process of transitioning from one’s birth sex to their preferred gender, rather than a medical process.
So if a non medicalist stance is accepted at least in guidance would it not be better to protect individuals on the grounds of their ‘gender identity’? An attempt to amend "gender reassignment" replacing it with "gender identity" was rejected by the Solicitor General on the basis that there was a perceived lack of evidence such people were discriminated against. It should be noted that the solicitor general also claimed the anti discrimination laws in place were robust enough to protect against discrimination on the basis of perceived gender reassignment. This sheds light on a serious lack of understanding of gender diverse people who are frequently targeted for reasons other than gender reassignment.
Who is not covered by the equality act protections for gender reassignment
Non binaries
This issue of non-binary and other genders was raised by the Women and Equalities Select Committee in its 2016 report, ‘Transgender Equality’ which called for a review of issues facing gender diverse individuals and to assess the need to make legal protections for them. This report further repeated the calls for the Government add ‘gender identity’ to the list of protected characteristics, citing adherence to the Council of Europe Resolution 2048 on ‘Discrimination against transgender people in Europe’, adopted by the Parliamentary Assembly of the Council of Europe in April 2015, which calls upon Member States to, among other things, explicitly prohibit discrimination based on gender identity. Despite this the Government’s response to the report, published in July 2016, did not address such a change. This was on the ground that the protected characteristic of gender reassignment in the equality act is compliant with the requirements of the recast EU Equal Treatment Directive.
So are non binaries protected? In Taylor v Jaguar Land Rover Ltd (ET/ 1304471/2018) the Employment Tribunal did in fact find that non binary and gender fluid identities were protected under s.7 saying:
‘it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as ‘non-binary’ i.e. not at point A or point Z, ‘gender fluid’ i.e. at different places between point A and point Z at different times, or ‘transitioning’ i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. We concluded that it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases. It will end up where it does.’
Cross dressers
It has been reiterated on multiple occasions that cross dressers are not protected.
Intersex
Intersex people are not directly protected as a class in the equality act. In the UK the law on registration of births requires every child to be assigned a sex so intersex people are protected prima facie on the grounds of their "sex" and further on the grounds of any gender reassignment surgeries they may have.
Detransitioners
A discrimintion case on the grounds of detrans status is yet to have been made but it would be interesting to see where such a case would fall
Criticism of the acts provisions for trans people
The debate between medicalisation and identity
The equality act was seen as a leap forwards from the requirement of SRS in the Sex Discrimination Act, as stated in taylor jaguar at para 174:
‘One of the issues the EA10 sought to deal with (and to some degree has) was moving away from medicalising protected characteristics… [I]n terms of gender-reassignment, the intention was to make it clear that a person need not intend to have surgery, or indeed ever have surgery, in order to identify as a different gender to their birth sex… gender reassignment need never be a medical process.’
Exceptions to the Equality Act
Single-Sex Services
s29 covers the provision of services to the public. This includes under s29(1) that a service provider must not discriminate against a group in providing a service by not providing it to them.
Schedule 3, Part 7 s.28 provides:
(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(a)the provision of separate services for persons of each sex;
(b)the provision of separate services differently for persons of each sex;
(c)the provision of a service only to persons of one sex
This means that those protected under the head of 'gender reassignment' either by way of self identification or obtaining a GRC, can be excluded from a service provided this is a propoertionate means of acheiving a legitimate aim. An example of a proportionate interference with rights under s7 given by the Code of Practice is where a single sex counselling service for vulnerable women excludes trans women. An example of a disproportionate interference given by the Code of Practice is where changing rooms in a clothes shop exclude trans women due to the avaliability of seperate, individual cubicles.
Communal Accomodation
Schedule 23 (3) provides exceptions to the prohibition of discirmination on the grounds of gender reassignment in relation to the provision of communal accomodation:
(1) A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to—
(a)the admission of persons to communal accommodation;
(b)the provision of a benefit, facility or service linked to the accommodation.
As with single sex services, the Code of Practice states that decisions to exclude a trans person must be made on a case by case basis and must be propotionate to a legitimate aim.