Sorry it is long, but section 4 is worth reading in full:
Part 4: Adverse effects in relation to the operation of the Equality Act 2010
(a) Exacerbation of existing issues with the operation of the Equality Act 2010
The amendments made by the Bill to the 2004 Act will allow a new and significantly broader category of people, who are currently unable to obtain a full GRC, to do so. This group (the new cohort) comprises:
applicants aged 16 to 17
applicants without a diagnosis of gender dysphoria
applicants who have not lived for 2 years in their acquired gender
The UK government has assessed that the creation of this new and very different cohort of eligible applicants would adversely affect the operation of the 2010 Act, identifying 4 key areas:
clubs and associations (where exceptions apply in respect of sex but not in respect of gender reassignment)
the operation of the PSED
equal pay
provisions where exceptions apply for both sex and gender reassignment
Clubs and associations (where exceptions apply in respect of sex but not in respect of gender reassignment)
The provisions in the 2010 Act relating to associations with 25 or more members (Part 7) mean that associations are able to restrict membership to people who share a protected characteristic, so they could restrict membership to men or to women. Many forms of women’s groups and clubs, including any membership-based[footnote 10] support groups for vulnerable women or women who have been victims of rape or sexual violence, or those designed to foster women and girls’ participation in particular activities or sports, will be covered in respect of associations which have regulated their membership to be women-only. Where an individual has changed their sex for the purposes of the 2010 Act by obtaining a full GRC, the association is therefore not able to refuse membership on the grounds of their previous sex. They also cannot restrict membership to people who are not covered by the gender reassignment characteristic because an association’s membership can only be based on a shared protected characteristic and not the absence of it.
The Bill’s creation of a new cohort with the ability to change their legal sex will significantly change the profile and number of individuals that associations will be unable to exclude from membership on grounds of sex.
The 2010 Act’s measures in relation to associations prevent them from denying membership to a presently small and highly defined group of people who have changed their legal sex under the 2004 Act as it currently applies. This was the context in which the 2010 Act was enacted.
The Bill will adversely affect the operation of the 2010 Act by changing the effect of its requirements on single-sex associations, who will be required to accept, without discrimination, members from a new, larger and different cohort, who would not have met the requirements currently set out in the 2004 Act.
Whereas current GRC recipients have established a stable gender identity for at least 2 years, recipients under the Bill may have done so for only 6 months[footnote 11] and in a manner which is self-defined. Where an association had reason to exclude the opposite sex, it is reasonable to assume that a liberalisation of the process for changing legal sex will create new challenges, problems or concerns. Accommodations, adjustments and compromises that may have been reasonably provided on an exceptional basis, may not be possible for a larger number. Provisions that may have been appropriate for individuals who have lived in their acquired gender over a significant period of time may not be suitable where this is not the case.
The Bill therefore changes the nature and level of expectations of single-sex associations as compared to those set by the 2010 Act when enacted. In doing so, it may lead to associations, including long established associations, being at greater risk of being found to be operating unlawfully (by excluding transgender women, for example) or making decisions to cease operating because of the perceived risks. Similarly potential founders of new such associations may not proceed due to equivalent concerns. These changes could lead to the loss of this provision, undermining efforts to foster greater participation of women in a particular activity, or to the self-exclusion of women who, for religious, philosophical belief or other reasons, may only feel able to attend an association if they understand them to be segregated by biological sex and who are more likely to believe, given the increase and expansion of the cohort if the Bill is enacted, that this is unlikely.
The operation of the Public Sector Equality Duty (PSED)
The expansion of the cohort of GRC holders is also materially problematic for the operation of the PSED (section 149). This requires public authorities and those carrying out public functions to have due regard to the need to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it’, amongst other measures.
As established above, possession of a full GRC has the effect of generally changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act. As a consequence, when considering the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, decision makers will not always be considering the impact on biological women as a distinct disadvantaged group compared to the impact on biological men, as the protected characteristic of sex is not confined to biological women.[footnote 12] The Bill, if enacted, will make an existing problem significantly worse because of the increased number and range of GRC holders, with significant implications for group-based equality provisions. As such, it is possible that expanding the cohort of people in possession of a GRC will have a direct impact on the application of this section of the 2010 Act. It will also become more difficult to monitor UK-wide disparities between legal women and men, or transgender and non-transgender people, if membership of those groups differs between Scotland and the rest of the UK and is changing more rapidly in Scotland than in England. Changing the membership of these groups will particularly impact more local and operational contexts where the numbers of people concerned may be quite limited and the effect of even a very small number of GRC holders could be significant.
It is also noted that the dimension of sex is relevant in the context of all other protected characteristics and an understanding of equalities impacts for a certain issue may require consideration of combinations of protected characteristics – for example, the impact for ethnic minority women. The greater ease with which people in Scotland will be able to change their legal sex will make it more difficult to clearly assess the impacts of policy in respect of all protected characteristics, and thus the PSED will be more difficult to apply, as a result of the Bill.
Equality impact assessments should make use of available data and evidence. In that context, it is noted that even small numbers of transgender people’s inclusion in analysis can have a disproportionate impact, as it is unlikely that transgender people will be evenly distributed in the intersection with other protected characteristics and/or their locality. Looking at how groups are impacted in specific situations, rather than at a national level, will mean that the inclusion of transgender people within sex-segregated groups could have a disproportionate impact on the interpretation of the data.
Equal pay
The issues here may arise infrequently but could be significant in specific instances - the adverse effect is therefore qualitative rather than quantitative. The 2010 Act provides that when a claimant brings equal pay claims under Chapter 3 of Part 5, they must show that they have been paid less than a person of the opposite sex employed on equal work (a ‘comparator’).
A full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act, meaning that transgender women with a GRC are legally considered as female claimants and comparators, and transgender men as male claimants and comparators.
Where an equal pay claim is brought by a claimant with a GRC, or a comparator with a GRC is used in the claim, an individual may have been treated as the opposite to their current legal sex for a significant proportion of their career with better or worse terms during this time than the comparator or claimant respectively. This may lead to the comparator test identifying an equal pay issue where one does not properly exist, or indeed failing to identify such an issue due to an individual’s status as the holder of a GRC.
Where a claimant may deem a colleague to be the most appropriate comparator of the opposite sex, but that colleague then receives a GRC, the 2010 Act would not enable them to be cited as the comparator in the claim. This could prevent the comparator test from accurately identifying what might otherwise have been deemed unlawful.
As the criteria for being issued with a GRC under the 2004 Act presently mean GRCs can only be issued to a small group who have lived in their acquired gender for at least 2 years, the effect of this on equal pay provisions is significantly limited.
However, the Bill will allow a new and significantly broader category of people to change their legal sex. As more individuals are eligible to change their legal sex, the adverse effect on the operation of the 2010 Act’s equal pay provisions grows. In particular, an individual’s ability to gain a full GRC after living in their acquired gender for 6 or 9 months would increase the likelihood of equal pay claims involving individuals who had started and completed the gender recognition process only relatively recently or who obtained a GRC while a claim was ongoing.
In principle, the same issues may arise in the context of a direct discrimination claim based upon sex. However, in such claims a hypothetical comparator may be relied upon, and that possibility will mean that a situation in which an adverse effect arises as a result of the Bill will be rare. Hypothetical comparators are not generally used in equal pay claims.
Provisions where exceptions apply for both sex and gender reassignment
The 2010 Act provisions for sex-segregated services, competitive sports and occupational requirements allow for the exclusion of people with the protected characteristic of gender reassignment, where their exclusion can be objectively justified. Anyone holding a GRC would be protected by the characteristic of gender reassignment, but this is not reliant on having a GRC.
The existence of the current system of legal gender recognition means that problems relating to these provisions already exist. Firstly, someone who is transgender (i.e. has the protected characteristic of gender reassignment) but does not have a GRC could be subject to a blanket exclusion from these services, settings and roles on the basis of their legal sex; whereas someone who is transgender with a GRC cannot be excluded on the basis of their legal sex, but can be excluded on the basis of gender reassignment if there is objective justification for doing so. The expansion of the cohort of GRC holders would therefore result in more case-by-case decisions being made. It may also be that providers find it more difficult to justify excluding increased numbers of people with GRCs or worry about an increased risk of operational and/or legal challenges. This could lead to an increase in the number of transgender people accessing single-sex services, spaces and roles, and a potential chilling effect on existing and prospective providers, in effect disincentivising such provision.
An increase in the number of GRC holders means that people’s perception of whether a setting is likely to be biologically sex-segregated will alter, and they may be more likely to self-exclude as a result of their perception that people of the other biological sex will be more likely to be present. Furthermore, the nature of the new and very different cohort of GRC holders makes it more likely that people will encounter others who do not conform to their expectations of someone they would expect to find in a single-sex service, space or role, which could result in their feeling uncomfortable, or even traumatised, and undermining the purpose of making these sex-segregated. The Bill exacerbates this issue and will likely cause a chilling effect that could be just as harmful in practice as a legal effect.
(b) New issues
While a number of the adverse effects arising from the Bill increase the significance of existing issues in the operation of the 2010 Act, the impact on the operation of the 2010 Act with regard to schools is of special significance in that it creates a difficulty that schools have generally not previously needed to contend with.
The provisions in the 2010 Act relating to schools (in Part 6) are excepted from the 2010 Act’s sex discrimination provisions for the purposes of single-sex school admissions. Single-sex schools are therefore able to put in place lawful admissions policies that discriminate on the basis of prospective pupils’ sex. There is no corresponding exception for direct gender reassignment discrimination. Where an individual has changed their legal sex for the purposes of the 2010 Act by obtaining a full GRC, a school’s refusal to admit that child due to their gender reassignment would be direct gender reassignment discrimination.
As the 2004 Act sets a minimum age of application at 18, it is not possible for the vast majority of school pupils to change their legal sex prior to leaving school. The UK Department for Education, responsible for the school system in England, is not aware of any examples in practice either in England or anywhere in the UK. This was the context in which the 2010 Act was enacted. Therefore, currently single-sex schools can be largely assumed to be providing for a single biological sex. If the Bill is enacted and such schools sought to exclude from admission those within the new cohort who had changed their legal sex so that it no longer corresponded with the school provision, this would be unlawful.
The 2010 Act does allow[footnote 13] single-sex schools to exceptionally admit pupils of the other sex or admit a comparatively small number of pupils of the other sex and confine those pupils to particular classes or courses. Single-sex schools are currently therefore granted in effect a level of discretion under the Act in relation to admissions decisions which they can use for transgender pupils, whose legal sex (in almost all instances) will not have changed.
The Bill will adversely affect the operation of the 2010 Act by curtailing the discretion it affords schools in Scotland: enabling a new cohort of transgender pupils aged 16 to 17 to change their legal sex in Scotland will mean that single-sex schools will not be able to deny them admission on the grounds of their sex. If a single-sex school in Scotland were to deny admission on the basis of a pupil’s gender reassignment (rather than their sex), it could constitute unlawful direct discrimination on the basis of gender reassignment. With only a very small number of single sex schools in Scotland, single-sex provision is already very limited. Providers establishing new single-sex schools to meet any increase in future demand would equally be prohibited from refusing admission to pupils from the new cohort of transgender pupils aged 16 to 17 because they have changed their legal sex. It is possible that such constraints arising from the Bill on single-sex schools in Scotland could contribute to individual schools deciding to become co-educational. That would have an adverse effect for current and future parents and students who would prefer a single-sex school, perhaps in particular where they consider that such a setting is less likely than a co-educational school to generate problems with sexual harassment.
The Bill’s creation of a new cohort of 16 to 17 year olds born in Scotland with the ability to change their birth certificate and thus legal sex would also adversely affect the operation of the 2010 Act in schools in England, particularly those near the border with a higher percentage of students born or living in Scotland. This could create doubts about whether birth certificates issued by the Registrar General for Scotland could be relied on as documentary evidence of a person’s legal sex in England and Wales for 16 and 17 year olds. This would leave schools uncertain as to how to confirm a person’s legal sex through reference to such documentation if they were born or living in Scotland and aged above 16.
With such doubts about how to confirm someone’s legal sex, the Bill if enacted could make it more difficult for some single-sex schools in England to operate. Uncertainty or unawareness of pupils’ transgender status (something that is likely to arise more often due to the increased size of the cohort in Scotland) could also mean that schools do not have the information they need to assess safeguarding risks, including how best to support transgender pupils.