Published: 04 Apr 2022
As the statutory regulator charged with upholding equality and human rights laws and standards, we protect all people in Britain against discrimination on the basis of protected characteristics. It is an important part of our role to explain how the law works in practice.
In the Equality Act 2010 the protected characteristic of sex protects people from being discriminated against because of being a man or a woman (Equality Act 2010, Section 11) – defined as a male or female of any age (Equality Act 2010, Section 212 (1)). ‘Sex’ is understood as binary – being male or female – with a person’s legal sex being determined by what is recorded on their birth certificate, based on biological sex. A trans person can change their legal sex by obtaining a Gender Recognition Certificate through procedures set out in the Gender Recognition Act 2004. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for legal purposes.
A person has 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 their sex by changing physiological or other attributes of sex (Equality Act 2010, Section 7 (1)). There is no requirement for a trans person to have any kind of medical supervision or intervention, nor to have a Gender Recognition Certificate, in order to be protected from gender reassignment discrimination. Trans people are legally protected from discrimination from the moment they propose to change their sex.
Under the Equality Act people are protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a Gender Recognition Certificate is legally male and is treated as a man for the purposes of the sex discrimination provisions, and a trans woman with a Gender Recognition Certificate is treated as a woman. The sex discrimination exceptions in the Equality Act therefore apply differently to trans people with and without Gender Recognition Certificates.
In most circumstances it would be inappropriate to ask a person to prove their legal sex by producing a birth certificate or Gender Recognition Certificate, and in some circumstances this could be unlawful.
Exceptions in the Act set out circumstances in which it is permissible to treat someone less favourably because of their sex or gender reassignment, for reasons of public policy or to protect the rights of others. The sex exceptions operate on the basis of legal sex. The gender reassignment exceptions are not determined by whether or not an individual has a Gender Recognition Certificate (the one exception to this relates to the solemnisation of marriage through religious ceremony – Equality Act 2010, Schedule 3, paragraph 24). The use of such exceptions generally needs to be justified as being a proportionate way to achieve a legitimate objective.
Because the operation of the Equality Act gender reassignment exceptions does not rely on possession, or not, of a Gender Recognition Certificate, any reform of the Gender Recognition Act will not erode the special status of services provided separately for men and women, or for men or women only, as defined by the Equality Act 2010, such as domestic abuse refuges, health services and clubs. We have issued clear, practical guidance for providers of separate and single-sex services to help them fully understand how to meet the needs of all women and men.