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Sex
What the Act says
2.87 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and / or boys, or women and / or girls (section 11(a) and (b) and section 212, paragraph 1).
2.88 The Supreme Court in For Women Scotland ruled that ‘sex’, ‘woman’ and ‘man’ in the Act mean biological sex, biological woman and biological man. The
judgment uses the expression ‘biological sex’ to describe the sex of a person
at birth. Earlier case law12 has set out the indicators of biological sex.
2.89 A Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the Act. Read paragraphs 2.49 to 2.53 for more information
on GRCs. Read paragraphs 13.161 to 13.182 for more information about when
and how it may be appropriate to request information or evidence of the sex of
a person at birth.
2.90 A comparator for the purposes of showing sex discrimination will be a
person of the opposite sex. Sex does not include gender reassignment
(read paragraphs 2.49 to 2.53) or sexual orientation (read paragraphs
2.92 to 2.96).
2.91 There are specific provisions which apply where the treatment of a woman
is because of her pregnancy and maternity, or because she is breastfeeding
(section 13, paragraph 6(a) and section 13, paragraph 7). Read paragraphs
4.54 to 4.73 for more information.
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Sexual orientation
What the Act says
2.92 Sexual orientation is a protected characteristic (section 12, paragraph 1). Under the Act, this means a person’s sexual orientation towards:
-persons of the same sex (the person is a lesbian woman or a gay man)
-persons of the opposite sex (the person is heterosexual)
-persons of either sex (the person is bisexual)
2.93 Sexual orientation relates to how people feel as well as their actions.
2.94 Sexual orientation discrimination includes discrimination because someone is of a particular sexual orientation, and it also covers discrimination connected
with manifestations of that sexual orientation. These may include someone’s
appearance, the places they visit or the people they associate with.
2.95 When the Act refers to the protected characteristic of sexual orientation (section 12, paragraph 2), it means the following:
-a reference to a person who has this protected characteristic is a reference to a person who is of a particular sexual orientation
-a reference to people who share the protected characteristic is a reference to people who are of the same sexual orientation
2.96 Gender reassignment is a separate protected characteristic and unrelated to sexual orientation, despite often being grouped together (for example, under
the acronym ‘LGBTQ+ people’).