The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More (1996)). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

Copyright Seán J Crossan, 22 August 2019

Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

Burka bans and horse racing in a Hijab

Photo by أخٌ في الله on Unsplash


I have just been reading two, contrasting stories
about Islamic dress codes which appeared in today’s UK media.

The first story comes from our close neighbour and EU partner, the Netherlands which has decided to bring in a new law banning certain forms of Islamic dress – principally the Burka, Hijab and the Niqab – from being worn by female Muslims in hospitals and schools and while travelling by public transport. This ban imitates similar initiatives in other EU member states such as Austria, Denmark, France and Germany. Those individuals who ignore or flout the ban run the risk of being fined €150. Some Dutch politicians, for example, Geert Wilders of the far right Party for Freedom would like the law to be extended in order to ban Islamic headscarves.

The second story comes from the UK and couldn’t be more different in tone. The BBC reports that a female, Muslim jockey, who wears the Hijab, has made history by winning the Magnolia Cup at Glorious Goodwood.

Links to the two stories can be found below:

http://news.sky.com/story/netherlands-burka-ban-comes-into-force-in-schools-hospitals-and-on-buses-11774887

Khadijah Mellah: Hijab-wearing jockey triumphs on Haverland and makes history

These two stories made me think about the limits of tolerance in relation to the outward signs of religious belief in our communities. Under UK and EU laws, a person’s religion is a protected characteristic and s/he has the right not to be subjected to unlawful, less favourable treatment (discrimination).

The right to enjoy protection from religious discrimination was first introduced to the mainland UK as a result of the EU Directive 2000/78/EC on Equal Treatment in Employment and Occupation. The laws on religious discrimination were to be found in the Employment Equality (Religion or Belief) Regulations 2003. It should be noted that the scope of these Regulations was limited in that they applied only to the area of employment – not, for example, the provision of goods and services.

Previously, Northern Ireland was the only part of the UK which had laws on religious discrimination – for understandable reasons given the troubled history of that part of the world. The Regulations did not extend to Northern Ireland because it already had laws in place to deal with this issue.

The Regulations have now been superseded by the provisions of the Equality Act 2010 (primarily Section 10) which are much wider in scope in that they cover both religious discrimination in employment and the provision of goods and services.

Additionally, Article 22 of the EU’s Charter of Fundamental Rights recognises a person’s right to cultural and religious diversity.

Wearing Islamic dress is obviously a way in which very religious members of this community can express their religious beliefs. Reading both articles today, I found myself asking the question what would be the legal effects if a similar ban on Islamic dress was introduced in the UK?

The new UK Prime Minister, Boris Johnson, has made disparaging remarks about forms of Islamic dress, but admittedly he does not seem willing to introduce a ban.

Countries such as Austria, Denmark, France, Germany and now the Netherlands are just as much bound by laws such as Directive 2000/78/EC and the Charter of Fundamental Rights as the UK is at the time of writing, so how do they justify banning certain forms of Islamic dress?

Freedom of religion is not absolute and sometimes the State can decide that a person’s religious beliefs must take second place if they clash with other people’s human rights (e.g. sexual orientation) or general public safety goals. In the UK, discrimination less favourable treatment in connection with a person’s protected characteristics may be permitted under the Equality Act 2010 if it can be objectively justified i.e. it is a proportionate means of achieving a legitimate aim. Health and safety or concerns about terrorism are often grounds used by States across the EU to justify periodic crackdowns on the wearing of Islamic dress in public places.

Copyright Seán J Crossan, 1 August 2019

Who’s the daddy?

Photo by Sandy Millar on Unsplash

Coming on the back of one of my recent blogs about gender reassignment (Gender Neutral? published on 25 June 2019), I spotted an interesting story appeared on Sky News today.

It concerns a legal action taken by Freddy McConnell, a multimedia journalist with The Guardian newspaper, to have himself declared the father of a child. There would seem to be nothing particularly significant about this. Mr McConnell is a transgender man and he gave birth to the child in 2018 after he had undergone gender reassignment and was no longer legally recognised as male.

When he attempted to register himself as the child’s father, the registrar refused to do this – hence the lodging of the legal action before the English High Court’s Family Division.

In terms of Section 7 of the Equality Act 2010, a person who has undergone or who is contemplating gender reassignment can bring a legal action under the Act if they believe that they have been subjected to unlawful, less favourable treatment (prohibited conduct).

The story has now hit the headlines because Mr McConnell had enjoyed anonymity while the action is still to be decided. He has now lost this anonymity because he participated in a documentary (partly produced by his employer) about his struggle to be named as his child’s father rather than its mother.

Other media outlets, such as The Telegraph, challenged the anonymity order as they argued that it infringed the right of journalists to comment freely on a matter of legitimate, public interest.

Human rights

Interestingly, the story then became not merely about transgender rights, but also one of human rights (in terms of the Human Rights Act 1998). There was a conflict between Mr McConnell’s right to privacy and a family life and the right of freedom of expression of journalists (Articles 8 and 10 respectively of the European Convention on Human Rights). On this particular matter, Mr McConnell has lost his attempt to remain anonymous as Sir Andrew McFarlane, President of the High Court’s Family Division has found in favour of The Telegraph et al.

It remains to be seen whether Mr McConnell will win his legal action to be named as his child’s father on the birth certificate.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/man-who-gave-birth-loses-anonymity-in-his-bid-to-be-registered-as-father-on-birth-certificate-11764821

A link to Sir Andrew McFarlane’s judgement can be found below:

TT v YY [2019] EWHC 1823 (Fam) Case No: FD18F00035

https://www.judiciary.uk/wp-content/uploads/2019/07/TT-anonymity-judgment-150719.pdf

Copyright Seán J Crossan, 17 July 2019

Boxing clever?

Photo by Ryan Tang on Unsplash

In a previous blog (Indirect discrimination? published on 21 February 2019 and updated on 8 July 2019), I discussed the form of prohibited conduct known as indirect discrimination in terms of the Equality Act 2010.

Section 19 of the Equality Act 2010 defines indirect discrimination:

‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’

Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Employers and service providers (and other organisations) must be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people, members of a faith group or people from certain racial or ethnic groups) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554).

So, bearing the above in mind, it was with some interest that I saw a story reported by the BBC about a policy imposed by the Welsh Amateur Boxing Authority that all boxers have to be clean shaven in order to participate in matches. This rule is being challenged by Aaron Singh, who is a member of the Sikh community. Singh is claiming that the rule prevents him from boxing. As outward manifestations of their race, religion and culture, many Sikh men will grow beards. Especially religious males in the Sikh community will also wear a Dastar, pagri or pagg (forms of headwear signifying religious and cultural observance). A Kirpan – a ceremonial dagger – will also be carried by many observant Sikh males. Both male and female Sikhs will also choose to wear iron bangles and bracelets (the Kara) which have both religious and cultural significance.

If you are unfamiliar with the Sikh religion, you can access the video below for more information:

https://youtu.be/SZYhxdeTPts

You can also find a link to an article below about Sikhs which was originally published in The Independent:

https://www.indy100.com/article/sikhs-face-discrimination-get-mistaken-for-muslims-hardayal-singh-united-sikhs-8332796

Could this rule be an example of indirect discrimination which particularly impacts (in a very negative way) on members of the Sikh community? In terms of the Equality Act 2010, Sikhs are covered by Sections 9 (Race) and 10 (Religion). Some Sikhs may not be particularly religious (in other words non-practising), but they will be covered by the protected characteristic of Race (see Mandla v DowellLee [1982] UKHL 7).

Interestingly, as a point of reference, Judaism is also a protected characteristic in terms of Sections 9 and 10 of the Equality Act 2010.

In its defence the Welsh Amateur Boxing Association will be arguing the health and safety card as objective justification. Of the rule. In response, Singh is arguing that the English Amateur Boxing Association dropped its rule demanding that boxers be clean shaven.

It will be interesting to see how this dispute develops.

A link to the story on the BBC News website can be found below:

Boxing beard ban not fair says Cardiff University student

Cardiff student Aaron Singh says the rules in Wales are “not fair” and discriminatory.

The Equality and Human Rights Commission has also published guidance for employers and organisations about the Sikh community and its beliefs:

https://www.whatdotheyknow.com/request/288201/response/709901/attach/3/guidance%20on%20sikh%20articles%20of%20faith%20for%20scotland%20pdf.pdf

More links to stories about Sikhism and potential indirect discrimination can be found below:

https://www.telegraph.co.uk/news/religion/2469905/Sikh-teenagers-bangle-discrimination-win-will-impact-rules-on-uniforms.html

http://news.bbc.co.uk/1/hi/8500712.stm

Copyright Seán J Crossan, 8 July 2019

Ouch!

Photo by Seán J Crossan

A salutary tale from Northern Ireland about the dangers of unequal pay for employers.

Margaret Mercer, a Belfast solicitor, has been awarded £273,000 in compensation by the Industrial Tribunal (yes, they still exist in Northern Ireland) after she won her equal pay claim against her employer, C&H Jefferson (a law firm).

The Tribunal concluded that Ms Mercer had been doing “like work” when a comparison was made with 4 other colleagues who held the rank of salaried partner in the firm. Three of these individuals were men.

It should be recalled that, under equal pay legislation in the UK, individuals can bring claims on a number of grounds:

  • They are engaged in like work with their comparator(s);
  • They are engaged in work of equal value with their comparator(s); or
  • They are engaged in work rated equivalent with their comparator(s).

C&H Jefferson has stated that it intends to appeal the Tribunal ruling.

More details about Ms Mercer’s claim can be found below in the BBC article:

Belfast solicitor wins £273k in equal pay case

Margaret Mercer found out she was not being paid the same as some colleagues at the law firm C&H Jefferson.

Copyright Seán J Crossan, 26 June 2019

Gender neutral?

Photo by Michael Prewett on Unsplash

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004. It remains unclear, however, when exactly the Government will introduce the draft legislation. Shirley-Anne Sommerville MSP, the Government Minister with responsibility for this issue has publicly admitted that there is still a need to build a “maximum consensus” before things become clearer. 

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

Gender reassignment (or even gender identity) seems to have become a particularly fraught issue recently as a number of diverse media articles demonstrates:

Father Ted co-creator Graham Linehan warned by police over ‘transphobia’ Twitter row

http://news.sky.com/story/father-ted-co-creator-graham-linehan-warned-by-police-over-transphobia-twitter-row-11520340

Transgender prison inmate who sexually assaulted women jailed for life

http://news.sky.com/story/transgender-prison-inmate-who-sexually-assaulted-women-jailed-for-life-11523584

First UK transgender prison unit to open

https://www.bbc.co.uk/news/uk-47434730

Sam Smith comes out as non-binary: ‘I’m not male or female’

http://www.bbc.co.uk/news/newsbeat-47612616

My passport gender should be non-binary

https://www.bbc.co.uk/news/uk-england-london-48126998

Retired naval chief criticises gender neutral ships

https://www.bbc.co.uk/news/uk-scotland-48037933

Jacqueline Wilson: Gender reassignment for children makes me very worried’

https://edition.independent.co.uk/editions/uk.co.independent.issue.240419/data/8882366/index.html

Munroe Bergdorf: NSPCC cuts ties with transgender activist

https://www.bbc.co.uk/news/uk-48572955

‘Race science’ is rearing its ugly head – again and black women are the target

https://www.independent.co.uk/voices/caster-semenya-race-science-guinea-pig-saartjie-baartman-a8971081.html

Political controversy

In 2018, the Labour Party became embroiled in difficulties concerning the issue of whether trans women should be included in all female short lists for the selection of parliamentary candidates. Senior members of the Party – Jeremy Corbyn, Dawn Butler, Harriet Harman and Angela Rayner are supportive of this initiative. 

The Standing for Women Campaign ran a (fiercely debated) poster ad during the Labour Party’s Conference in Liverpool focusing on the definition of a woman. This poster caused something of a storm and was later removed by the billboard company amid accusations of hate speech and discrimination against transgender people:

This image has an empty alt attribute; its file name is women_poster-1.png

Kellie-Jay Keen-Minshull, one of the activists behind the poster was quoted in The Spectator (11 September 2018) saying:

I was a supporter of the Labour Party for years, but I can’t now in all good conscience support a political party that is hellbent on destroying women’s rights. But this is wider than just the Labour party. The word ‘woman’ matters. It means adult human female. If we expand that definition to say that ‘woman’ includes men who claim to feel like women, so as not to hurt their feelings, the word will become meaningless. As will the rights that generations of women before us fought for.’

Gender Identity Research & Education Society

Sporting controversies

It’s not merely the world of politics which witnessed passionate debates about gender reassignment. The sporting world has also seen some fierce clashes between female and transgender athletes. Former Olympic medalists, Kelly Holmes and Sharron Davies; and former Marathon champion, Paula Radcliffe have all expressed caution about permitting trans-women athletes to compete in women’s sporting events. Martina Navratilova, the former Tennis champion was even accused of being a “transphobe”  when she suggested that the inclusion of trans-women in sporting events could be viewed as tantamount to “cheating”. 

Furthermore, the ongoing scrutiny concerning the gender of the South African athlete, Caster Semenya continues to divide many people in the sporting world. 

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament. 

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment.

This now means that the decision by the House of Lords in Chief Constable of West Yorkshire Police v A (2004) which held that the police force could rightfully refuse to employ an individual who had undergone a sex change as a constable has been reversed. Such treatment would now be regarded as an example of unlawful discrimination.

That said, in addition to UK anti-discrimination and equality laws, the Court of Justice of the European Union (as long ago as the case of P v S & Cornwall County Council (1996))held that discriminatory treatment of people having undergone gender reassignment was a breach of the Equal Treatment Directive. The individual in question had been dismissed from employment because she undergone a gender reassignment operation.

In Richards v Secretary of State for Work and Pensions (2006) the Court of Justice of the European Union ruled that a person (Richards) who was born male and then underwent gender reassignment to become female was entitled to claim a pension that would have been payable to a woman at age 60.

The individual in question had suffered less favourable treatment and the UK Government’s insistence that it would only begin to pay a pension to the individual in question from her 65th birthday onwards was an example of discriminatory treatment. In other words, the pensions authority was continuing to treat Richards as a man and was not taking into account the fact that gender reassignment had taken place.

In any event, the Richards case (above) is really of historical interest as the legal situation has greatly improved for any person having undergone gender reassignment. Such a person will now be issued with an official gender recognition certificate (see below) which means that they will be entitled to receive a pension from the date that such a certificate was issued.

The Court of Justice of the European Union has long held that discriminatory treatment of people having undergone gender reassignment is a breach of the Equal Treatment Directive.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill is controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel. 

What would be required of the individual in question under the proposed legislation are the following:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months; 
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed). 

The Equality Act 2010

Section 7 of the Equality Act 2010 addresses the issue of a person who has undergone gender reassignment in the following terms:

 (1) A person has the protected characteristic of gender reassignment if the person is 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.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

As we shall see, when discuss guidance from the Equality and Human Rights Commission (in the paragraph below), the Equality Act 2010 does not actually require a person to have undergone physical or physiological changes in order to be regarded as possessing the protected characteristic of gender reassignment. 

Guidance from the Equality and Human Rights Commission

The Statutory Code on Employment issued by the Equality and Human Rights Commission contains a number of examples which demonstrate discrimination on the grounds of gender reassignment:

Example 1

A person who was born physically female decides to spend the rest of his 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 would be protected as someone who has the protected characteristic of gender reassignment.

Example 2

A person born physically male lets her friends know that she intends to reassign her sex. She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex.

Example 3

Before a formal dinner organised by his employer, a worker tells his colleagues that he intends to come to the event dressed as a woman ‘for a laugh’. His manager tells him not to do this, as it would create a bad image of the company. Because the worker has no intention of undergoing gender reassignment, he would not have a claim for discrimination.

On the other hand, if the employer had said the same thing to a worker driven by their gender identity to cross-dress as a woman as part of the process of reassigning their sex, this could amount to direct discrimination because of gender reassignment.

It is worth noting in the above examples 1 and 2 that the individuals in question have not actually undergone the start of a physical transformation from one gender to another, but nonetheless both are protected in terms of Section 7 of the Equality Act.

Conclusion

A person who has undergone gender reassignment will have a protected characteristic in terms of the Equality Act 2010. Currently, the process by which an individual undergoes gender reassignment is laid down by the Gender Recognition Act 2004. This legislation was passed by the UK Parliament and applies across the country. 

The Scottish Government has now announced that it intends to introduce a Gender Recognition Bill to reform the existing legislation. At the time of writing, it remains unclear when this will happen. 

The purpose of the reforms is to move away from an emphasis on medical evidence to support the issuing of a gender recognition certificate to a system of self-declaration of gender (albeit under certain conditions being satisfied).

This subject has generated a lot of (often heated) debate and will probably continue to do so. 

Postscript

The proposed Gender Recognition Bill continues to cause controversy – Wings over Scotland – the biggest pro-independence blog in Scotland edited by Stuart Campbell has found itself at the centre of the storm this week (4 July 2019). Campbell criticised the prominent nationalist MP, Mhairi Black for appearing on a YouTube channel where she appeared to attack those who were not in favour of the Gender Recognition proposals.

Needless to say this has generated a lot of comments by readers of the blog.

Links to Stuart Campbell’s blog entry and Mhairi Black’s Video can be found below:

https://wingsoverscotland.com/no-independence-day/#more-111060

https://youtu.be/9FlbIes2mlg

 
Copyright Seán J Crossan, 25 June and 5 July 2019