15 July 2016 #Employment
Last week the Government published its response to the Women and Equalities Committee’s first report on transgender equality.
The Women and Equalities Committee’s (“the Committee”) first report was published in January of this year and suggested that the protected characteristic of “gender reassignment” should be renamed “gender identity” to provide greater protection under the Equality Act to cross-dressers, non-binary and gender fluid people.
This recommendation was rejected by the Government which considered that the protected characteristic of “gender reassignment” provided sufficient protection, reasoning that it was not necessary for individuals to actually have the protected characteristic. The Government was referring to discrimination by perception, which for these purposes is where an individual treats someone less favourably because they wrongly perceive someone to be undergoing gender reassignment.
The Government’s response does not ease concerns about the widespread misapprehension that the term “gender reassignment” only protects those who are undergoing medical gender reassignment treatment, or who have received a gender recognition certificate. In the absence of clarity on the scope of “gender reassignment,” the Government agreed to keep the matter under review and invited individuals to continue sharing experiences of discrimination, harassment and victimisation.
A further recommendation made by the Committee was that the occupational requirement (“OR”) exceptions in the Equality Act should not apply to individuals whose acquired gender has been recognised under the Gender Recognition Act 2004. Employers may be able to rely on the OR exception in relation to recruitment, promotion or training if for example, the job requires someone of a particular sex.
The Government acknowledged in its response that individuals who have completed a gender transition and obtained a gender recognition certificate should be afforded the full legal and social status of their acquired gender and accordingly, the OR exception should not operate to exclude transgender individuals from applying for a role unless the OR relates to their acquired gender. This acknowledgment is welcomed but is somewhat limited in effect because the Government confirmed it would not make any legislative changes to clarify this point. It instead considered current Government guidance on the use of OR exceptions to be sufficient.
Although legislative changes are not on the cards for now, and particularly in the wake of Brexit, it appears that transgender equality will remain a prominent theme for legislative change in the future so watch this space!