The UK Supreme Court in ‘For Women Scotland’ upheld a biological definition of sex for equality law purposes (see here for our summary).
The ECHR has since launched a public consultation outlining its proposed updates to the Statutory Code of Practice on sex for services, public functions and associations. The proposed amendments include:
Updated definitions
For the purposes of the Equality Act, ‘legal sex’ is the sex that was recorded at birth and ‘woman’ means biological woman and ‘man’ means biological man.
New content on gender recognition certificates
- The Supreme Court ruled that obtaining a Gender recognition Certificate (‘GRC’) does not change a person’s legal sex for the purposes of the Equality Act 2010;
- A person’s sex remains their biological sex (i.e. sex at birth) whether they have a GRC; and
- Trans people (with or without a GRC) are protected from discrimination because of gender reassignment and sex discrimination (based on their birth sex) and sex discrimination related to their acquired gender.
New content about asking about sex at birth
- Unless it is necessary and justified, asking a trans person about their birth sex may interfere with their human rights;
- Questions about birth sex should be handled “sensitively”, in a way which does not cause discrimination or harassment; and
- People should usually only be asked to confirm their birth sex, rather than being asked to provide evidence of this. Birth certificates may not be a definitive indication of birth sex anyway because a trans person with a GRC can obtain an amended birth certificate in their acquired gender.
Updated description of the protected characteristic of sexual orientation
This now specifies that a person who is attracted to people of the same sex is either a lesbian woman or a gay man.
This ruling has significant implications for employers and HR professionals. Employers should continue to foster inclusive policies that respect the rights of all employees and seek legal advice when navigating complex equality issues.