2024 Election: Conservatives' proposed reforms to anti-discrimination legislation

Whilst not making it explicitly into their manifesto, the Conservatives have expressed a wish to protect the “privacy and dignity of women and girls” by defining sex as biological in the Equality Act 2010. 

What does this mean for employers?

Presently, under the Equality Act, sex is not explicitly defined, but the protected characteristic of sex is covered by section 11, which states that: 

“(a) a reference to a person who has a particular protected characteristic is a reference to a man or a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

Sex is, therefore, under the current legislation, understood to be binary and the same as that recorded on an individual’s birth certificate. However, the legislation does not guide how individuals who have transitioned should be treated. 

Whilst primarily focused on those changing gender, the Gender Recognition Act 2004 (“GRA”) attempts to clarify the status of those in possession of a gender recognition certificate (“GRC”). Section 9(1) GRA states that where a GRC is issued to a person, then:

“if the acquired gender is the male gender, the person’s sex becomes that of a man, and if it is the female gender, the person’s sex becomes that of a woman.” 

However, section 9(3) adds a proviso that section 9(1) is subject to provisions made in any subordinate legislation. As the Equality Act fails to make clear that it triggers section 9(3), there remains a lack of clarity regarding the treatment of trans men and women.

As a result, there is still a grey area and a discrepancy between those who have a GRC and those who do not. With waiting times for NHS gender identity clinics now reaching more than five years, and combined with the requirement for individuals to provide evidence of living in their affirmed gender for two years, this process is lengthy and means that there are likely many people who never receive a GRC and the additional legal protections it confers. 

Amending the act to clarify the definition of sex and to address questions about trans status could provide greater certainty to employers and service providers alike. The Equality and Human Rights Commission has also recommended that the “sex” should be defined as biological sex for the purposes of the Equality Act. In her letter to Ms Badenoch, the Chairwoman of the EHRC identifies 8 areas in which such a definition would provide clarity: 

• pregnancy and maternity; 
• freedom of association for lesbians and gay men; 
• freedom of association for women and men; 
• positive action;
• occupational requirements;
• single sex and separate sex services;
• sport; and
• data collection. 

However, such a change would not be a definitive solution. Complexities around discrimination would not necessarily be eradicated by simply adding an explicit definition of sex within the Equality Act. 

Both direct and indirect sex discrimination would be affected by the change as it would reverse potential claims, i.e. trans women would no longer be able to bring claims as women, thus transferring the right to bring a claim for sex discrimination. 

Whilst sex may be defined as biological, having the effect of preventing individuals from bringing certain claims for discrimination, those who identify as trans are still going to be protected by the Equality Act. The Equality Act presently makes provision for nine protected characteristics, including:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

An individual will still be able to bring a claim in relation to any of these characteristics if they can demonstrate that they have been directly or indirectly discriminated against. Section 7 of the Equality Act defines that an individual is eligible for the protected characteristic of gender reassignment if they are “proposing to undergo, [are] undergoing or [have] undergone a process (or part of a process) to reassign the person's sex by changing physiological or other attributes of sex”.

The employment tribunal in Taylor v Jaguar Land Rover Ltd considered the criteria to satisfy section 7. It was held that there was a broad range of scenarios under which an individual would be covered by the Act. It confirmed that there is no need for an individual to have undergone any surgical procedures and that an individual need only be “actively considering”, “intending to”, or “deciding to undergo gender reassignment” to be protected from discrimination. The case also highlighted that the courts are open to considering those who identify as non-binary or genderfluid as protected under the gender reassignment provisions of the Equality Act. 

Whilst we do not know whether any changes will be made, we would recommend that it is best practice for employers to continue to keep their policies under review and updated to ensure that no group are being discriminated against. Employers are under a duty to take all reasonable steps to prevent discrimination. They should, therefore, consider whether there are further steps they could take to ensure that their workplace is fit and welcoming for all employees. 

An employer may wish to take a range of actions, including consulting any transitioning individuals to understand their needs and concerns, encouraging sensible and understanding workplace behaviour, and conducting equality impact assessments before implementing new policies and procedures.