Equality Act employment question

[JemimaTiggywinkles]

I’m a bit confused about how the equality act works with respect to “women only” jobs. Below is what I think, but I’m obviously not a lawyer so would appreciate and corrections and/or answers to the questions!

So a job can be reserved for women if it is necessary (eg in a rape crisis centre). This means it can be advertised as women only and any men who apply will have their applications binned and cannot claim discrimination on the grounds of sex. Is this the same as, or similar to the “proportionate means to a legitimate end”?

If a TW with a GRC applies they have to be considered for the post because their correct comparator in a trans discrimination claim is a woman. A woman would be considered, therefore the TW must be considered. Is this always true, or are there exceptions an employer can invoke?

If a TW without a GRC applies they do not need to be considered because their correct comparator in a trans discrimination claim is a non-trans man. However, what happens if the employer decides that they follow Stonewall Law of self-ID? They’d consider the application equivalent to a woman. But, given the correct comparator in a trans discrimination claim is a non-trans man, doesn’t that open up the risk of a non-trans man claiming he has been discriminated against by not being trans? Or is trans discrimination one-way only?

So a job can be reserved for women if it is necessary (eg in a rape crisis centre). This means it can be advertised as women only and any men who apply will have their applications binned and cannot claim discrimination on the grounds of sex.

Yes.

Is this the same as, or similar to the “proportionate means to a legitimate end”?

Same

If a TW with a GRC applies they have to be considered for the post because their correct comparator in a trans discrimination claim is a woman.

No. The GRC isn't really relevant much. It's more about what the legitimate aim is.

Where sex is relevant transewomen can be excluded. Where its more about (for example) encouraging female participation it might well be the case that a transwoman could not be excluded.

Thing is, in those cases a non-passing transwoman might well put some women off but then it's about reasonableness.

The correct comparison for a trans woman is a man. A trans woman without the gender reassignment protected characteristic is a man not a woman, regardless of grc.

is trans discrimination one-way only?

Yes, it is. The PC is gender reassignment. However, sex is also a PC. If a transwoman can do a job, why not a man?

The problem is it would need someone to pursue for discrimination in recruitment practice, which I don't think has ever happened.

P.S. IANAL, this is just what I've gathered.

A job that is for women only would be advertised until the single sex exemptions, ie only for biological females.

It is spelt out in the EA.

If this is something you / your organisations wants to do just google single sex exemptions and when posting the ad make sure that it is clearly stated that this is the basis on which the post is being advertised.

Sorry if advertising the job it should quote both the EA and the Sex Discrimination Act eg

Exempt under the Equality Act 2010, Schedule 9, and Part 1. Section 7(2) e of the Sex Discrimination Act 1975.

Longer version for advertising:

Open to women only. Genuine Occupational Requirement (GOR), Schedule 9 (Work; Exceptions), Part 1 (Occupational Requirements), of the Equality Act (2010) applies.

Thanks for the insights. I thought the FWS / Haldane judgement said that because a GRC changed the person’s sex that meant a person with the legal, GRC sex of female counted as a woman for Equality Act purposes. I thought that was why we needed to update the EA to specify “biological sex”, but I must be wrong. I’ll do some more reading.

It’s not about my work - I’m a teacher and have no hiring responsibilities at all. Just trying to get my head around all of the laws.

A job that is for women only would be advertised until the single sex exemptions, ie only for biological females.

So how can a rape crisis centre legally advertise roles as women only, but employ male people?

If a transwoman can do a job, why not a man?

This was my (round about) point. Most other PCs are mirrored. You can’t discriminate against someone because they hold a particular belief, nor because they dont hold the belief. I assumes (wrongly it seems) that gender reassignment was the same.

Nope, that's not right. A transwoman without a GRC is legally male, so the comparator is a man without the PC of gender reassignment. A transwoman with a GRC is legally female, so the comparator is a woman without the PC of gender reassignment. That said, it's still legal to discriminate against the transwoman with a GRC compared to the woman if it's a proportionate means of achieving a legitimate aim.

A transwoman without a GRC is legally male, so the comparator is a man without the PC of gender reassignment.

You can have the protected characteristic of Gender Reassignment without a GRC. The courts have interpreted it very broadly.

Lady Haldane (and I wished this could be a pinned post as no one seems to remember and it is tiring to have to keep re typing it) said the "for all purposes! a man with a GRC would be a "legal woman" but then went on to talk about the SSE. ie the whole court case was a complete waste of time as her judgement just said the law is as it has been since the EA was amended to reflect the GRA.

But at least it made it clear once and for all that in giving a tiny minority the right to have all their wishes granted women's rights had been restrict. In a fairer world, or one that had any respect for women, the exemptions should have been for when TW could be taken as being female, and women could have continued as it was to assume that women on meant women only. ie 50+% of the population had their rights restricted so that a tiny minority could have their rights put first.

So how can a rape crisis centre legally advertise roles as women only, but employ male people?

They cant but because Scotland wanted it to be that they went ahead and said SSE included trans women, as did Stonewall. Many did complain to the charities commission in Scotland etc., but they weren't bothered, neither were funded. ie they wanted to establish precedence.

So how can a rape crisis centre legally advertise roles as women only, but employ male people?

Because someone has to take them to court. Employers break the law all the time and nothing happens.

There is an argument that it's proportional to include Transwomen in that particular case but a) the employer didn't include transwomen, the employee lied on their application b) I think you'd have a hard time spitting that hair about why men are not OK but transwomen are fine.

This was my (round about) point. Most other PCs are mirrored. You can’t discriminate against someone because they hold a particular belief, nor because they dont hold the belief. I assumes (wrongly it seems) that gender reassignment was the same.

I think that and maternity are the only non mirrored ones. In practice, however, most times you might be discriminating for not having the Gender Reassignment PC, you'd also be discriminating on the grouds of Sex instead- so I don't think it hugely matters.

I think perception of the law (Stonewall law, as you say) is the problem. The law here is generally pretty good IMO.

So advertising a role as women only but employing a TW (GRC is irrelevant) is probably illegal but we won’t know for sure until it has been tested in the courts?

Yes, basically. On two grounds. It's potentially discrimination against men without gender reassignment PC to employ some males but not others, and it's also potentially discrimination/harassment towards women on the grounds of sex to impose a man when they expect it to be female only.

Hang on, I’m confused again.

In practice, however, most times you might be discriminating for not having the Gender Reassignment PC, you'd also be discriminating on the grouds of Sex instead- so I don't think it hugely matters.

If you invoke single sex exemptions you can ban all males from the role. If you allow TW (male people) to be considered alongside women for women-only roles a man can’t win a discrimination case based on sex (either because of SSE or the fact that TW are male and employed). As “gender reassignment” is a one-way protected characteristic the man can’t claim discrimination there either. So it is legal?

Sorry, that was a cross-post!

I guess I’m boiling it down to two questions:

Can an organisation legally protect a position as for biological women only, regardless of GRC?

(I think the answer is a clear yes, provided particular conditions are met)

Can an organisation legally appoint some male people (TW) to roles which are women only whilst excluding other male people (non-trans men)?

(I think the answer is <shrug>, we don’t know yet because there hasn’t been any cases)

The EA 2010 is huge and sprawling and it works differently and has different exceptions depending on the context - e.g. employment, services, public functions, housing ...

'Proportionate means of achieving a legitimate aim' crops up all over the place in the EA and there is similar wording in human rights law.

The EA exception that allows female only jobs is in Schedule 9, Part 1:

https://www.legislation.gov.uk/ukpga/2010/15/schedule/9/part/1

There must be a genuine occupational requirement for the employee to be a woman and this must be a proportionate means of achieving a legitimate aim.

It can be used for any PC, not just sex, however paragraph 3 (a) says:

The references .. to a requirement to have a protected characteristic are to be read—

(a)in the case of gender reassignment, as references to a requirement not to be a transsexual person

So it is lawful to advertise for a female employee who is not transsexual as long as it's a genuine requirement of the job and a proportionate means of achieving a legitimate aim. A GRC holder is transsexual so they would not be eligible even if they were legally female.

It would also be lawful to advertise for a female employee and not specify that they must not be transsexual. In that case the job would be open to women and tw with a GRC. Although in that case it would be difficult to work out why being a woman was an occupational requirement in the first place. It would be interesting if a man brought a discrimination claim on these grounds i.e. - 'if a tw can do this job then why can't I?'

Incidentally, according to the wording of this section it is only lawful to advertise for an employee who is not trans, and not for one who is. It has always puzzled me that the TRA have not sought to amend this but have instead focused on attacking the parts of the EA that protect women.

I thought the FWS / Haldane judgement said that because a GRC changed the person’s sex that meant a person with the legal, GRC sex of female counted as a woman for Equality Act purposes. I thought that was why we needed to update the EA to specify “biological sex”, but I must be wrong. I’ll do some more reading.

Not all parts of the EA have exceptions for gender reassignment that can be used in conjunction with single sex exceptions.

As outlined above there's a gender reassignment exception for occupational requirements and there are also exceptions for the provision of services and public functions. Other parts, such as associations (e.g. Girl Guiding, WI) can be 'single sex' but there is no way of excluding men who are legally female. 'All women shortlists' are lawful but there's no way to exclude tw with a GRC. There are more bits to do with public sector equality duty and positive action. I think it's these that were involved in the Haldane judgment but tbh I'm a bit hazy on the details.

If sex in the EA was clarified it would mean that all the single sex exceptions could really mean single sex and not just those that have additional gender reassignment exceptions that can be applied on top of sex, IYSWIM.

Lady Haldane (and I wished this could be a pinned post as no one seems to remember and it is tiring to have to keep re typing it) said the "for all purposes! a man with a GRC would be a "legal woman" but then went on to talk about the SSE.

Yes, a very helpful clarification of meaning 'in all circumstances except for the exceptions' or 'it does unless it doesn't'.

Incidentally, according to the wording of this section it is only lawful to advertise for an employee who is not trans, and not for one who is.

Not able to give details on what is a public forum, but some groups, not just those north of the border, think you can and do.

If sex in the EA was clarified it would mean that allthe single sex exceptions could really mean single sex and not just those that have additional gender reassignment exceptions that can be applied on top of sex, IYSWIM.

There is no such thing as gender reassignment execptions.

There are only single sex exemptions, ie women only services being open only for providers and users that are biological females.

The problem is that any number of organisation, employers etc., over the past decade or so have failed to take up the opportunity to argue for single sex services.

So it isn't just that trans activists have tried to undermine its meaning but that too many people, including some women, have been persuaded that only old fuddy duddy boomers want anything so reactionary.

ie 2 different influences have led to the number of women only provision (and the 3rd of course being the economic one that for instance the NHS uses as to why there aren't many if any single sex wards).

And the rise of trans ideology has made these disparate groups feel they are now part of an advanced social movement, rather than being what they really are which is entrenched misogynists and penny pinching pen pushers.

'Non-mirrored' protected characteristics:

Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity

Another way to think of this is protected characteristics that we all have:

Age
Race
Religion or belief (including non-belief)
Sex
Sexual orientation*

... versus those that only some of us have (the 'non-mirrored' ones).

*Sexual orientation would obviously not apply to young children, and those who identify as 'ace' would presumably argue that they are not included in the definition.

There is no such thing as gender reassignment execptions.

Yes there are!

Sch. 3, part 7, para 28:

28 (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.

(2)The matters are—

(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.

https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/paragraph/28

Without this gender reassignment exception there would be no way of excluding men with a GRC from women only services.

Sch. 9, part 1, para 1 (3)(a):

(3)The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—

(a)in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);

https://www.legislation.gov.uk/ukpga/2010/15/schedule/9/part/1

Without this gender reassignment exception there would be no way of excluding men with a GRC from women only job applications.

By contrast, Sch 16, part 1 only allows associations to restrict membership to persons who share a protected characteristic. So you can have a women only organisation but because there is no gender reassignment exception there is no way to exclude those who are legally women but actually not.

The problem is that any number of organisation, employers etc., over the past decade or so have failed to take up the opportunity to argue for single sex services.

This is a big additional problem but it's a different problem for e.g. service providers than it is for e.g. membership associations because they are dealt with under different parts of the EA with different exceptions.

Yes, a very helpful clarification of meaning 'in all circumstances except for the exceptions' or 'it does unless it doesn't'.

Because the law doesn't actually make sense this is the only way I was eventually able to understand. Someone said you have to start from the other end, ie why did the create Single Sex Exemptions? Because even the entrenched trans allies / be kind writing the law realised after they had done it (which is what they wanted) was that in all instances TW would be legally female. So almost as an after thought they realised that just maybe eg rape crisis support, biological females just might have a point about only wanting services from other biological women.

Which just shows how long the trans culture has captured institutions, including law makers. Its so depressing. Imagine creating a law that actual disadvantages 50+% of the population.

There is no such thing as gender reassignment execptions.

Not in relation to SSE which is what I thought the thread was about.

There is no such thing as gender reassignment execptions.

Not in relation to SSE which is what I thought the thread was about.

The two examples I gave of GR exceptions were in relation to SSE