HR question

[EverylittleAlps]

Where would a hypothetical employer stand if they recruited a man over a trans woman, and when pushed for a reason why, said it's because trans women are women, this woman is of childbearing age and we couldn't afford it if someone went off on maternity leave.

They would clearly be being discriminatory if the person was a natal woman. But as the individual has zero chances of getting pregnant, even hypothetically, have they been discriminated against?

Yes, it's direct discrimination by perception.

So a parallel would be a straight person. It being a job because the employer thinks they're gay.

More info here:

www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/direct-discrimination/

I think in the real world there's unlikely to be many people who believe TWAW and who would also consciously discriminate against women.

That should say a straight person not being given a job...

Thank you, that's helpful

Anything in writing?

They may want to do a request under GDPR to assist with their enquiries and plans to take it further.

It is discriminatorly as the decision was not made on the person's merits the fact that they are trans or not isn't relevant. Neither is if they are female or not.

the fact that they are trans or not isn't relevant. Neither is if they are female or not.

It is. Discrimination in an employment setting has a specific legal definition and relates to 9 protected characteristics.

You don't have to give someone a job based on their merits (although it's good practice) but you can't treat them less favourably due to a protected characteristic (real or perceived) as per the link above.

Absurd example: deciding who to employ based on whose shoes you like the best - legal (but stupid)

Not hiring anyone who wears high heels - illegal (indirect sex discrimination)

As someone who interviewed and hired hundreds of people, finding reasons why I did or did not hire someone was - frankly - a piece of piss. Always based on the person spec, it's dead easy - if you know what you're doing - to justify an appointment.

Any employer who gave that as a reason would be in breach of employment law and I doubt any employer would be as dumb as to give that as a reason. I think that if the person in question has a GRC then it would be discrimination against them specifically, whether or not they can get pregnant. Clearly that reason relates directly to a person’s sex. I can’t see it would be any different to eg a woman who is infertile. It’s not the ability to get pregnant that’s the relevant bit- it’s the fact that she is perceived as female and denied the role for that reason. And, with some exceptions, someone with a GRC (and possibly even someone without) is treated as a member of the opposite sex.

Possession of a GRC is not relevant to discrimination under the Equality Act.

I think it might be for whether the comparator should be male or female (although I might be wrong). But I think that if an employer stated that the reason they didn’t hire a trans woman was because they perceived her to be female and likely to take maternity leave, the question of whether pregnancy would be possible would be irrelevant because they would not have used that reason for a non-trans man. Obviously this scenario also assumes that the trans woman in question passes as female. If it’s blatantly obvious that they are male, then why on earth would an employer cite potential maternity as a reason for not hiring?

Possession of a GRC is not relevant to discrimination under the Equality Act.

It is, but potentially not in this case. If you have a GRC then you legally change sex. So, actually, if the transwoman in question had a GRC it would be simple sex discrimination, not discrimination by perception as I previously stated. I assumed that the individual would not have a GRC as so few do.

I still remain sceptical that this would happen though and OP did say it was hypothetical.

The GRA determines matters unless another Act deals with the relevant area. So in all the areas that the Equality Act is relevant: employment; goods and services etc, it is the Equality Act that is important. So the protected characteristic of gender reassignment applies from the time that a person proposes to undergo this process. Whether they later obtain a GRC is irrelevant.

And furthermore, if a trans woman is subject to discrimination because she is perceived to be a woman by the discriminator, it matters not whether members of this group would perceive her to be a woman if they knew of her circumstances. So, once again, the possession (or not) of a GRC is irrelevant.

Regrettably, this is the flawed legal analysis by HHJ Richardson (in a different context) in the first instance case of Green which did not deal with women-only spaces. It is widely relied on in gender-critical circles but is of no authority and is unlikely to stand scrutiny.

So are you saying that it would not be sex discrimination then Robin? Because the gay example is clearly discrimination on grounds of sexual orientation whether or not said person actually is gay. I can’t see how it concerns gender reassignment because, if this happened, it would only happen if the employer thought this person was a biological woman.

The original question is complex and I am just a little uncertain which ‘it’ you now refer to. If you could re-state the proposition, I will try to answer.

Scenario is:
Employer has a choice between two equally qualified candidates- one man, one trans woman. Employer picks man and gives as reason that trans woman is female and could become pregnant, and they do not wish to employ someone who may become pregnant.

OK. In your scenario, does the employer know if the trans woman is not a natal woman?

If he does know, he is a liar and this will succeed as gender reassignment discrimination.

If not, it succeeds as sex discrimination by perception.

In neither case does it depend on whether the trans woman has a GRC.

Presumably no because unless someone is monumentally thick, they would know that a trans woman cannot become pregnant.
Thanks for clarifying.

I have seen similarly laughable propositions put forward by employers to justify / excuse / hide discriminatory decisions. I can’t recall any tribunals being fooled by them.

Possession of a GRC is not relevant to discrimination under the Equality Act

Yes i can see that this (kinda silly) case it does change depending on having a GRC or not

But in relation to the Equality Act more broadly doesn't it make a difference in terms of the comparator (as TheCuriousMonkey said) ?

And specifically in relation to single and separate sex services doesn't it make a difference as to whether it is Schedule 3 paragraphs 26 or 27 that apply - i.e. a service provider is allowed to provide single/separate sex services i.e. which exclude people categorically on the basis of sex , whether they have the protected characteristic of gender reassignment or not (or any other protected characteristics they might happen to have).

Or paragraph 28 - the exemption for gender reassignment.

The Green case is pretty poor analysis. These questions are best asked on the basis of a set of facts, not as a theoretical exercise. That is what a tribunal would be doing.