Legal Opinion, 10 November 2015

IN THE MATTER OF:-

THE WOMEN & EQUALITIES COMMITTEE’S INQUIRY INTO TRANSGENDER EQUALITY

RE:              ADVICE ON ASPECTS OF TRANSGENDER DISCRIMINATION &

THE EQUALITY ACT 2010

1. I am asked to advise on three specific aspects of the legislation governing transgender discrimination in England & Wales (as governed by the Equality Act 2010 (EqA) and the Gender Recognition Act 2004):

(1)            the scope of the protected characteristic of “gender reassignment” and whether it is wide enough to protect non-binary, a-gender, intersex and/or other trans individuals;

(2)            single-sex services and the exemption from discrimination where trans individuals are excluded from these services;

(3)            the exemption from discrimination where trans individuals are prohibited from participation as a competitor in a gender-affected sporting activity.

2. The questions which I am asked to respond to are annexed to this Advice Note and I set out below those questions followed by my response.

1. Protection of non-binary and a-gender people against discrimination:

1. Does section 7(2) of EqA define a “person” within section 7(1) solely as a transsexual person?

2. Does section 7 include within its definition transgender[1] people, or people with non-binary gender or a-gender identities?

3. Is there any relevant case law on this issue?

4. What would be the effect of amending the EqA so that “gender identity” is substituted for “gender reassignment” as the protected characteristic? Or instead, the addition to the EqA of other identities rather than substitution?

Question (a)(i):

3. In answer to question (a)(i), s.7(1) of EqA defines a person with the protected characteristic of gender reassignment as a “transsexual person”.  Within the language of the EqA, therefore, a “transsexual person” is someone who:

…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.

4. Consequently, only a “transsexual person” is protected from unlawful conduct under the EqA by virtue of the protected characteristic of gender reassignment.  In other words, if a person is not proposing to undergo, is not undergoing, or has not undergone a process (or part of a process) for the purpose of reassigning his or her sex (by changing physiological or other attributes of sex), then that person is not protected by s.7 of EqA.

Question (a)(ii):

5. The protected characteristic of “gender reassignment” in s.7 of EqA will apply to any person proposing, undergoing or who has undergone the process (or part of a process) of reassigning his/her sex from his/her sex at birth by changing physiological or other attributes of sex[2].  This could include intersex, non-binary, a-gender or other “transgender” people but, in my view, only where such persons are seeking (or have sought) to undergo a process of reassigning their gender away from their birth gender or are perceived to be doing so.

6. By way of clarification, I use the term “intersex” to describe individuals who have genetic, hormonal and physical features that are neither exclusively “male” nor exclusively “female”, but are typical of both at once or not clearly defined as either.  These features can manifest themselves within secondary sexual characteristics such as muscle mass, hair distribution, breasts and stature, or in primary sex characteristics such as reproductive organs and genitalia and/or in chromosomal and hormonal structures. There is a great diversity among intersex people and many will identify as women or men, while others identify as both or neither.  It has been pointed out that variations in sex characteristics (i.e. intersex conditions) are entirely separate to issues of sexual orientation and gender identity and intersex people experience the same range of sexual orientations and gender identities as non-intersex people[3].

7. In England & Wales, babies are assigned female or male sex at birth even where a baby has an apparent intersex condition and their sex is, therefore, indeterminate or undetermined[4]. Consequently, if a person develops a gender identity that is not consistent with the sex assigned to that person at birth and undergoes (or proposes to undergo) gender reassignment by changing physiological or other attributes of sex, then that person would be afforded protection under s.7 of the EqA.

8. However, a number of “transgender” individuals (including intersex, non-binary, a-gender and/or gender fluid transgender individuals) would not seek or propose to seek gender reassignment because, for example, they are content to retain their assigned sex (whether or not that accords with their gender identity, and/or gender expression and/or their sex characteristics at birth or as they develop in childhood or adolescence); or because they would not wish to reassign their sex to the opposite sex of that assigned at birth (as that also might not accord with their gender identity/expression).

9. Moreover, whilst s.7 of EqA does not require it, a Gender Recognition Certificate is only available to an individual who meets the criteria of the Gender Recognition Act 2004 (which includes evidence of a diagnosis of gender dysphoria).  Many “transgender” people (including intersex, non-binary, a-gender or gender fluid individuals) would not secure a diagnosis of “gender dysphoria”[5] and so would not be able to obtain a GRC.  Consequently, some individuals may not propose to undergo any part of a process of gender reassignment for that reason.

Discrimination by perception:

Some background context:

10. It may be helpful for the Committee to recall that when the Equality Bill was debated[6],  Lynne Featherstone (Lib Dem) queried whether the definition of “gender reassignment” would adequately extend to the wider transgender community, pointing out that it “still does not capture those who are not considering a change – those who are confused, but not considering living in or transitioning to another gender – but who may still experience discrimination because they are not physically identifiable as either a man or a woman….” And “I would like the Minister to elucidate on the situation in which someone is not considering living in another gender, but the external manifestation leaves them looking indeterminate.  How could they get protection if they were to be discriminated against for being unable to be identified as male or female?”

The then Solicitor-General (Vera Baird MP) responded by saying:

“…… Let us remember the perception element.  If people manifest what is thought to be a tendency to move towards the opposite sex – away from their sex identity – they might be perceived to be within the definition under the provision.  They will therefore have protection when they make those manifestations on the basis of perception.  Any behaviour that may be a precursor to an individual proposing to undergo gender reassignment may be covered by perception, so anyone who has gender dysphoria and experiments with transvestitism before starting the process of living full-time or even from time to time in what they see as becoming their acquired gender will be protected […] The individual who is misperceived to be on a journey, when, in fact, they are manifesting something that is not part of a journey, will be protected.”

Dr Evan Harris (Lib Dem) then commented that, “the concern is that such people might not be adequately protected on the basis of perceived gender reassignment, because relying on that provision would perhaps require proof that the discriminator wrongly perceived the person to be transsexual – proposing reassignment, as the Minister put it – as opposed to knowing or perceiving that they were transvestite, intersex or androgyne. If the perception has nothing to do, in the mind of the discriminator, with gender reassignment but relates to whether someone is a transvestite, would that be covered by the perception provision?”

To which Vera Baird replied:

“The matter of perception rests on whether someone is perceived to come within clause 7.  It is as simple as that.”

Whether “perceived” gender reassignment would cover the wider trans community:

11. The issue of discrimination by perception is not, in my view, as simple as all that.  The EqA (at section 13) defines direct discrimination as comprising less favourable treatment “because of” a protected characteristic.  In the Explanatory Notes to s.13 of EqA, it is explained that less favourable treatment “because of” a protected characteristic encompasses discrimination because a person is perceived to have the protected characteristic (but, in fact, does not).

12. Therefore, it has been thought that discrimination of “transgender” people who are not proposing, not undergoing or have not undergone a process of gender reassignment may still be prohibited because this will constitute discrimination on the basis that these people are perceived to have the protected characteristic of “gender reassignment”.

13. Whilst I can see how, in some cases, that may be so, equally there are many other cases where it will not.  People in the wider “trans” community who do not possess the protected characteristic of “gender reassignment” but are discriminated against may very well be discriminated against simply because of who they are (and not because they are perceived to be “transsexual”, as defined in s.7 of EqA). 

14. In other words: an intersex person may be discriminated against because they are intersex; and an individual who does not identify with either male or female gender or identifies as both, or who has a gender identity including aspects of both sexes or who expresses their gender identity fluidly (even though that person has the physiological, genetic and hormonal characteristics of one sex) may be discriminated for that reason (and not because they are perceived to have the protected characteristic of “gender reassignment”).

15. Consequently, in answer to question (a)(ii), whilst s.7 of EqA may include within its definition some individuals who are intersex, non-binary transgender, a-gender transgender or who identify or express gender in a way which does not conform to their sex assigned at birth, this will only be where these individuals are proposing, undergoing or have undergone a process of gender reassignment (as defined) or are perceived as doing (or having done) so.

16. I consider that this leaves a clear category of individuals who do not come within the protected characteristic of “gender reassignment” as defined in s.7 of EqA.

17. I deal below with whether gender identity, gender expression and/or intersex could be protected within the protected characteristic of “sex” but, in summary, on the current wording of the EqA, I do not believe that the definition of “sex” is sufficiently wide or clear to include discrimination because of intersex, gender identity or gender expression.

Question (a)(iii):

18. I am asked, by question (a)(iii) whether there is any relevant case law on the issue of whether “transgender” individuals (in the wider sense[7]) come within the definition of the protected characteristic of “gender reassignment” in s.7 of EqA.  In summary, I am not aware of any such case law.

Domestic case law:

19. In short, I am not aware of any such case law at a domestic level which considers whether a “transgender” person (as more widely defined) would come within the ambit of s.7 of EqA.  I have advised clients on this issue but it has never been litigated.  There are many reasons why a case may not have been brought (for example, because of the perception of negative media interest and coverage; funding issues; the fear of a bad precedent being set, in which case ambiguity may be preferred).  Therefore, in this jurisdiction, there is no case law to assist with the question of whether non-binary, a-gender, intersex or other trans individuals come within the protection of the EqA.

European & international law (including CJEU and ECtHR case law)[8]:

20. I am also not aware of any case in the CJEU or the ECtHR brought by an individual who is “transgender” (in the wider sense used by the Committee) but who is not proposing, undergoing or has undergone a process for the purpose of reassigning their sex by changing attributes of sex.

21. In EU and human rights law, the question of transgender rights is still in its infancy, as compared with other protected characteristics such as race, sex, disability etc. 

EU law / CJEU / international jurisdictions:

22. There is now relatively settled case law from the CJEU that “transsexuals” (as defined in s.7 of EqA) are protected by the principle of equal treatment as between men and women contained in Article 157 of the Treaty for the European Union[9] (in respect of sex discrimination in the field of employment and occupation) and Articles 10 and 19 of the TfEU (combatting sex and other discrimination outside of the field of employment).  But the TfEU does not specifically mention trans issues.

23. I should also draw the Committee’s attention to the EU Charter of Fundamental Rights which prohibits discrimination based on any ground “such as” sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation (Article 21(1).  The Charter binds the Member States “only when they are implementing Union law” (Article 51(1)) and it does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties (Article 51(2)).  Therefore, it would be difficult to interpret the Charter, even though its non-discrimination grounds are open-ended, as including discrimination based on gender identity and gender expression merely on the basis of the Charter as there would need to be a competence from the EU Treaties in relation to such discrimination.  At the moment, as seen above, the Treaties combat sex discrimination and provide for equal treatment for men and women but do not specifically refer to gender identity, gender expression or intersex discrimination.

24. The EU Directives made in furtherance of the objectives of the TfEU outlaw discrimination based on sex in various matters including: employment, occupation, statutory and occupational social security, access to and supply of goods and services.  And, as will be seen below, the CJEU has interpreted the principle of equal treatment for men and women to encompass the equal treatment of transsexual people because of gender reassignment.

25. In 1996, in P v S and Cornwall County Council[10], the CJEU concluded that a dismissal of a trans woman because of gender reassignment constituted sex discrimination prohibited by Article 5(1) of the Equal Treatment Directive[11].  The case involved a trans woman (P) who underwent gender reassignment surgery.  She was employed as a manager in an educational establishment and was dismissed during the course of the gender reassignment process, the dismissal taking effect after her final surgery.  P complained of sex discrimination to an employment tribunal and it was held that the true reason for the dismissal was P’s gender reassignment, not her sex.  In a request for a preliminary ruling, the CJEU was asked whether or not such a case was covered by EU sex equality law (at that time, Article 5(1) of Directive 76/207/EEC).  The Court held that:

“the scope of the Directive cannot be confined to discrimination based on the fact that a person is of one or other sex.  In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is such as to apply to discrimination arising, in this case, from the gender reassignment of the person concerned.  Such discrimination is based, essentially, if not exclusively, on the sex of the person concerned.  Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.  To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.”

26. That conclusion was upheld and applied again in Richards v Secretary of State for Work and Pensions[12] which concerned the refusal to award a state retirement pension at the age of 60 to a trans woman, Sarah Richards, because the retirement age for men born before 6 April 1950 was 60 and the Gender Recognition Act 2004 had not yet been enacted.  The CJEU repeated the principle enunciated in P v S and explained that the unequal treatment at issue was based on Ms Richards’ inability to have the new gender which she had acquired following surgery recognised in law with a view to application of the UK pension legislation.  Interestingly, the CJEU compared Ms Richards’ treatment to a natal woman (unlike in P v S where the Court compared P’s treatment to a natal man).

27. In between P v S (in 1996) and Richards (in 2006), in 2004 the CJEU decided the case of KB v National Health Service[13], in which it had to consider whether a female employee of the NHS whose partner was a trans man was afforded unequal treatment in relation to pay because of the NHS’s refusal to permit her partner to claim a survivor’s pension which was only available to surviving partners of a marriage.  This was because her partner was not afforded legal recognition as a man (this was before the enactment of the GRA 2004) and so the couple was unable to marry.  The comparison made by the CJEU, therefore, was between heterosexual couples where neither partner’s identity is the result of gender reassignment (on the one hand) and couples where the partner is transgender (on the other).  The Court concluded that there was inequality of treatment, contrary to Art 157 of TfEU, in the fact that one of the conditions for securing a survivor’s pension was the capacity to marry which, in breach of the European Convention on Human Rights (ECHR), was not available to KB as there was no legal recognition of her partner’s reassigned sex.

28. These three cases are the only cases in the CJEU concerning gender reassignment and my researches have not uncovered any cases in which the CJEU has considered cases brought by “transgender” complainants more widely (i.e. in respect of gender identity, gender expression, intersex or other trans discrimination)[14]. To include wider “transgender” discrimination within the principle of equal treatment for men and women would require a broader interpretation of the expression “on grounds of sex” than has been adopted by the CJEU so far.  This would require a test case, perhaps building on the opinion of Advocate-General Tesauro in the case of P v S, at paragraph 17:

“…it is necessary to go beyond the traditional classification and recognise that, in addition to the man/woman dichotomy, there is a range of characteristics, behaviour and roles shared by men and women, so that sex itself ought rather to be thought of as a continuum.  From that point of view, it is clear that it would not be right to continue to treat as unlawful solely acts of discrimination on grounds of sex which are referable to men and women in the traditional sense of those terms, while refusing to protect those who are also treated unfavourably precisely because of their sex and/or sexual identity.”

29. It may assist the Committee if I summarise the legal position in the EU and in some jurisdictions outside the EU:

29.1.   As stated above, in 1996, the CJEU decided the case of P v S and Cornwall County Council, holding that: “the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex.”  But P v S concerned a claim brought (in the employment sphere) by a post-operative trans woman.  Therefore, the case was about gender reassignment discrimination (as now clearly prohibited by inclusion of the protected characteristic of gender reassignment in s.7 of EqA).  This case was followed by two further cases but also in respect of post-operative transgender individuals (KB and Richards about pension rights).  None of these cases, therefore, concerned the question of whether “transgender” individuals, as more widely defined, would be afforded protection under EU law.

29.2.   In 2002, a legal challenge was made to the binary sex model by an intersex person in the Regional Court of Munich who wished to record sex as “intersexual” or “intrasexual” as a gender identification in the Register of Births, Deaths and Marriages.  The challenge failed because the Court was not satisfied that the complainant was “hermaphrodite”[15].

29.3.   However, Germany has since then passed legislation to allow the sex/gender of an intersex newborn to be left open until it is resolved[16].  And, in 2006, it adopted the General Equal Treatment Act (primarily aimed at transposing EU equality legislation into national legislation) which included “transsexual” and “intersexual” people within the definition of “sex”.

29.4.   In 2005 and 2007, a similar case was brought in the Almelo District Court in the Netherlands by an intersex person who did not identify as either female or male and who wished to correct the entry on the Register of Births, Deaths and Marriages (and the birth certificate) so that intersex status could be recognised.  The Supreme Court on both occasions denied the application stating that there was no general “international tendency” to protect persons who are intersexual by allowing registration as belonging to neither gender[17].

29.5.   In 2005, South Africa amended its equality legislation to include an express reference to intersex[18].  The Judicial Matters Amendment Act 2006 made amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, stating that: “Intersex means a congenital sexual differentiation which is atypical, to whatever degree” and that “sex” in the Act includes “intersex”.

29.6.   In 2012, the Autonomous Basque Community in Spain adopted a law on non-discrimination on the grounds of gender identity and for the recognition of trans people, and includes provisions on intersex people.

29.7.   In 2013, Australia introduced an intersex-specific ground of discrimination defining “intersex status” as “the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male”.  The Act prohibits discrimination on the grounds of intersex status (in circumstances where the discriminator treats the aggrieved person less favourably than a person who is not of intersex status, by reason of (a) the aggrieved person’s intersex status; or (b) a characteristic that appertains generally to persons of intersex status; or (c) a characteristic that is generally imputed to persons of intersex status)[19].

29.8.   In 2015, Finland amended its Gender Equality Act to state expressly that the Act’s new provisions on gender identity and gender expression also apply to discrimination related to a person’s physical sex characteristics which are not unequivocally male or female.

29.9.   In Malta, the Gender Identity, Gender Expression and Sex Characteristics Act 2015 prohibits discrimination based on gender, identity, gender expression and sex characteristics[20] and allows parents or guardians to postpone the inclusion of a sex marker on the birth certificate until the child’s gender identity has been determined.

29.10.                       In June 2015, Jersey passed the Discrimination (Sex and Related Characteristics) (Jersey) Regulations 2015 which came into effect on 1 September 2015.  This made amendments to the Discrimination (Jersey) Law 2013 by amending the protected characteristic of “sex” so that it is now defined as, “a reference to a man, a woman or a person who has intersex status”[21] and inserting a new protected characteristic of “gender reassignment” (which is worded similarly to s.7 of EqA).

29.11.                       In June 2015, the Republic of Ireland passed the Gender Recognition Act 2015 which came into effect on 8 September 2015 providing for legal recognition of acquired gender (similar to the Gender Recognition Act 2004 in the UK, but the Irish legislation has no requirement for medical evidence of gender reassignment, so is based on the self-declaration model).

30. Consequently, as this summary demonstrates, countries both within the EU and outside have begun to recognise that (1) gender reassignment discrimination should be separately and specifically dealt with (as was done in the UK, initially in 1999 – following P v S – with the insertion of s.2A into the Sex Discrimination Act 2975, by virtue of the Sex Discrimination (Gender Reassignment) Regulations 1999 and, later, with the EqA)[22]; and that (2) it may also be necessary to deal separately and specifically with wider issues of gender identity and gender expression and, indeed, intersex because discrimination on such grounds has not been adequately addressed hitherto.

Human rights:

31. Reliance on a human rights discourse may also assist with advancing the protection for “transgender” people, as more widely defined.  However, reliance on such a discourse is problematic, it does not provide legal certainty, and may well not secure the enjoyment of specific rights within the UK or even the EU.

32. Human rights are, of course, universal and indivisible and so apply to everybody, including “transgender” people (both “transsexuals”, as defined in s.7 of EqA, and the wider “transgender” community, including intersex people, non-binary, a-gender and gender fluid transgender individuals).  There is no specific provision in the Universal Declaration of Human Rights (UDHR) or in the European Convention on Human Rights (ECHR) which refers to transgender, non-binary, a-gender, gender fluid or intersex people but international human rights treaties apply to everyone and thus to all “transgender” people (as widely defined) because international conventions use open-ended non-discrimination clauses[23]. 

33. The open-ended nature of the anti-discrimination provisions in international treaties was confirmed by the UN Committee on Economic, Social and Cultural Rights which stated that “other status” as recognised in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights includes, “gender identity…as among the prohibited grounds of discrimination” and that “persons who are transgender, transsexual or intersex often face serious human rights violation, such as harassment in schools or in the workplace”[24].

34. In 2006, experts from around the world met in Yogyakarta to formulate and adopt a set of human rights principles, known as the “Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity”.  These principles constitute a primary source for considering the human rights of LGBTI people and have been extensively referred to by various governments, including by several EU member states and European Economic Area (EEA) countries[25].

35. But, despite (or because of) the open-ended nature of international treaties affording protection against discrimination in respect of “transgender” people, the momentum has been gathering in the past five years to specifically target and tackle discrimination against the LGBTI community and particular focus has been paid to the complex question of the human rights of intersex people.

36. In 2010, the Council of Europe Committee of Ministers, followed by the Parliamentary Assembly adopted resolutions calling for clear measures to combat discrimination on grounds of sexual orientation and gender identity[26].

37. In 2011, the Council of Europe published a report presenting the results of the largest socio-legal study ever carried out on discrimination on grounds of sexual orientation and gender identity in the 47 member states of the Council of Europe. Six thematic chapters give a broad overview of the human rights situation of LGBTI persons and recommendations are provided for developing and implementing effective measures to address discrimination[27].

38. In 2012, the EU Commission published a report tackling discrimination against trans and intersex people[28].  The EU has also adopted a set of external action guidelines on the promotion and protection of human rights of LGBTI people, including specific attention to intersex issues[29].

39. In 2013, the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution on the bodily integrity of intersex children. PACE Resolution 1952 (2013) is the first resolution of its kind by any European institution. The resolution urges national authorities to “undertake further research to increase knowledge about the specific situation of intersex people, ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned, and provide families with intersex children with adequate counselling and support”.

40. In 2013, the Inter-American Commission on Human Rights (IACHR) created a rapporteurship on the Rights of LBGTI persons to address issues of sexual orientation, gender identity, gender expression and body diversity, the latter indicating the need to pay specific attention to intersex issues.

41. In 2014, the UN High Commissioner for Human Rights proposed that the UNHRC, governments, MPs, national human rights institutions, judicial actors and civil society organisations should direct their focus towards human rights breaches against LGBTI people[30].

42. In May 2014, the European Commissioner for Human Rights published a Human Rights Comment highlighting the human rights challenges faced by intersex people (“A boy or a girl or a person – intersex people lack recognition in Europe”)[31].

43. On 4 December 2014, in response to a written question in the European Parliament as to what measures had been taken by the Commission to raise awareness and show full support and legal recognition for intersex people in Europe, the Commission stated[32]:

“With regard to discrimination relating to sex and gender identity in the EU, the European Court of Justice has held that the principle of non-discrimination on grounds of sex embedded in EU gender equality legislation cannot be confined to discrimination based only on the fact that a person is of one or the other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, this principle of equal treatment also applies to discrimination arising from the gender reassignment of a person. The Court has therefore taken a broad approach to the definition of sex in discrimination cases. The Commission monitors how Member States ensure that this is covered in their national legislation in the light of the Court's case-law. It could be for the European Court of Justice to consider, were a case to be brought before it, whether having certain sexual characteristics or one's status as an intersex person is recognised as a protected ground in EC law, having regard to its case-law and to the Charter of Fundamental Rights of the European Union.

The legal complexity of transgender and intersex issues triggered a need for a comprehensive research that the Commission published in 2012. The Commission has widely disseminated the study and has brought it to the attention of the Member States. The Commission is therefore aware of the specific obstacles faced by intersex people.”

44. The Council of Europe has very recently published an Issue Paper (Human Rights and Intersex People) in April 2015 (to which I am indebted, for the purposes of this Advice Note, for much of the background context)[33].

45. The European Union Agency for Fundamental Rights (FRA) conducted research (in response to the PACE resolution and call for research in 2013 mentioned above) which it has recently published in a Focus Paper, “The Fundamental Rights situation of intersex people” (April 2015)[34].

46. The ECtHR has considered numerous cases brought by transgender complainants[35].  However, none of them have considered the question of protection from discrimination in respect of gender identity, gender expression or intersex issues more widely. 

Conclusion on question (a)(iii):

47. Despite the ever-increasing focus on the question of the rights of intersex and “transgender” individuals (as more widely defined), however, there remains little, if any, specific provision in domestic, EU or international human rights or discrimination law which refers to transgender people more widely (including those with intersex conditions).

48. Whilst the CJEU has interpreted sex discrimination as encompassing discrimination based on gender reassignment, at EU level discrimination on the ground of gender identity and gender expression has not been emancipated as a distinct form of discrimination.  This leaves uncertainty for all those trans people who are not proposing, are not undergoing or have not undergone a process of gender reassignment.

49. In my view, whilst there are arguments which could be advanced at domestic level and/or at the level of the CJEU or ECtHR for the protection of discrimination based on gender identity, gender expression or characteristics of sex/gender, there can be no certainty whatsoever that individuals within this wider category of “transgender” (including intersex) are protected within domestic law.

Question (a)(iv):

50. By this question, I am asked what would be the effect of amending the EqA so that “gender identity” is substituted for “gender reassignment” as the protected characteristic and/or so that additional protected characteristics are added to the EqA.

51. Clearly, in my view, the addition of “gender identity” – if defined as referring to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth – will widen the protected characteristic within s.7 of EqA to include elements of the “transgender” community more widely.

52. However, it might well still exclude those with intersex conditions and those whose internal/individual experiences of gender do correspond with the sex assigned at birth but who express gender in non-conforming ways (eg, cross-dressers who experience gender in a way which corresponds with the sex assigned at birth but who express gender in a way which does not confirm to society’s idea of how a male or female would express their gender).  For that reason, a more encompassing amendment to s.7 would be to refer to “gender identity” and “gender expression”.  Moreover, whilst “gender identity” and “gender expression” would, in my view, include “gender reassignment”, it may be worth considering defining those terms so as clearly to include the current definition in s.7 of EqA (i.e. as including those who are proposing, undergoing or have 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.  So, for example, a legislative amendment might look as follows:

“Gender identity refers to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned to that person at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms[36]. It includes references to a person who 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”.

53. Of course, if s.7 of EqA is amended to widen the scope of protection to “transgender” people more widely, other provisions in the EqA would need to be reviewed (for example, the occupational requirements[37] and the single-sex services[38] exemptions from discrimination in cases of gender reassignment).  This is because, for example, one may well not wish to permit an employer to require an employee not to have the protected characteristic of “gender identity” (in circumstances where the potential applicant is not “transsexual” as currently defined in s.7 of EqA but does fall within the wider ambit of the protected characteristic of “gender identity”).

54. Whilst the amendment suggested above would much more widely encompass individuals who are content to retain their assigned sex (whether or not that accords with their gender identity, and/or gender expression), such as non-binary, a-gender or gender fluid people, I would still consider that it may not extend to those with intersex conditions.  This is because such people may not necessarily experience discrimination because of any gender identity or gender expression issues (or perceived gender identity/expression issues) but because they are intersex.  Indeed, intersex discrimination may well be better conceptualised as a form of sex discrimination than it is a form of gender identity/expression/reassignment discrimination.  No doubt, this may very well explain why countries such as Malta, Finland, Germany and Jersey deal with intersex within the arena of sex discrimination.

55. A spotlight has only recently begun to be shined on to the complex and developing area of intersex rights and discrimination.  However, certain countries are beginning to take legislative strides to keep up by recognising that discrimination based on intersex may not readily be subsumed within the current discrimination discourse and may need to be emancipated from existing discrimination norms.  The Committee may well wish, therefore, to consider the question of amending the EqA to deal specifically with intersex, either as a free-standing characteristic or as a specified sub-category within the protected characteristics of sex or gender identity.  In my view, that is the only way to achieve legal certainty should there be a wish to ensure that people with intersex conditions are protected under the EqA.

2. Gender Recognition, Transgender Equality and Single-Sex Services:

Paragraph 28 of Schedule 3, Part 7, “Separate and Single Services”, permits service providers to restrict access to or exclude from gaining access to single-sex services, a person with the protected characteristic of gender reassignment, in certain circumstances.

1. Is it correct to describe such decision-making as being on a case-by-case basis, where the permitted exclusion is “a proportionate means of achieving a legitimate aim”?
2. In relation to women’s refuges and other single-sex services (and any other relevant instances), on what, if any grounds, would it be legal to exclude a person with the protected characteristic of gender reassignment from such services?
3. What would be the effect of amending (by substitution or by addition) the EqA so that there are no circumstances in which it is legal to exclude a transgender or transsexual person from employment with, or receiving services from, a single-sex service?
4. What would be the effect of amending (by substitution or by addition) the EqA so that single-sex services are no longer able to exclude, on a proportionate and legitimate basis, a transgender or transsexual person who has been awarded legal recognition of their acquired gender, from accessing:

1. gender-appropriate services?
2. gender-appropriate employment?

Question (b)(i):

Background context:

56. Paragraph 28, Schedule 3, Part 7 of EqA provides as follows:

“(1)              A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2)              The matters are –

(a)                The provision of separate services for persons of each sex;

(b)                The provision of separate services differently for persons of each sex;

(c)                 The provision of a service only to persons of one sex”.

57. The prohibition of gender reassignment discrimination outside the field of employment/occupation was first provided for domestically by reason of the Sex Discrimination (Amendment of Legislation) Regulations 2008 which amended the Sex Discrimination Act 1975 in a number of respects.  These Regulations were introduced to give effect to the Gender Directive implementing the principle of equal treatment for men and women in relation to the access to and supply of goods and services (2004/113/EC). 

58. The amendments to the Sex Discrimination Act 1975 extended protection against direct discrimination and harassment on grounds of gender reassignment in the provision of goods, facilities and services (other than in relation to excluded matters[39]). 

59. However, there were certain exemptions. 

60. The Sex Discrimination Act 1975 had previously included a small number of exemptions that allowed facilities or services to be provided on a single-sex or separate basis to men and women.  The 2008 Regulations amended these provisions in the 1975 Act (other than in relation to excluded matters), to allow for persons with the protected characteristic of gender reassignment to be excluded from such services.

61. Under the Sex Discrimination Act 1975, there was a closed list of services which could be provided on a single-sex or separate basis such that any discrimination on grounds of sex would be deemed to be lawful.  In summary:

1. goods, services and facilities provided at hospitals (or any other establishment for persons requiring special care, supervision or attention) could be restricted to one sex;

2. facilities or services provided at a place used for the purposes of an organised religion could be restricted to one sex so as to comply with the doctrines of that religion or to avoid offending the religious susceptibilities of a significant number of its followers;

3. if a user was likely to suffer serious embarrassment at the presence of a member of the opposite sex or was likely to be in a state of undress and would reasonably object to the presence of a member of the opposite sex, then it was lawful to restrict the provision of facilities or services to one sex; and

4. facilities or services could be restricted to one sex if physical contact between the user and any other person is likely and the person might reasonably object if the user were of a particular sex.

62. By way of the 2008 Regulations (which amended the 1975 Act), the exemption from discrimination in respect of this closed list of goods, facilities and/or services which could be provided on a single-sex or separate basis was extended so that transsexuals could be excluded (so discriminating against them) but only where such discrimination was a proportionate means of achieving a legitimate aim.

63. The exemption from sex and gender reassignment discrimination in respect of single-sex and separate services was continued into the EqA, by virtue of paragraphs 26 to 28, Schedule 3, Part 7.  The types of services which are permitted to be provided on a single-sex or separate basis are defined in paragraphs 26 and 27.  And the exemption from gender reassignment discrimination in respect of such services is contained in paragraph 28.  Therefore, “transsexuals” (as defined in s.7 of EqA) may only be excluded from the types of single-sex or separate services described in paragraphs 26 and 27 and where the exclusion is objectively justified (as being proportionate to a legitimate aim). 

Test to be applied to exemption in respect of single-sex / separate services & gender reassignment:

64. By question (b)(i), I am asked whether it is correct to describe decision-making in respect of the gender reassignment exemption regarding single-sex and separate services provision as being on a case-by-case basis and only being permitted where it is a proportionate means of achieving a legitimate aim.  That is correct.

65. There is limited relevant case law in respect of single-sex and/or separate service provision and still less in relation to the exemption from liability for gender reassignment discrimination in that context. 

66. There is a first instance (County Court) decision reported on Westlaw (Brook v Tasker[40]) which demonstrates that a judge at Halifax County Court (Judge Miller) concluded that a pub owner and licensee had directly discriminated against a transgender customer, contrary to ss.13 and 29 of EqA, by refusing to allow the customer to use the ladies toilets and had victimised her by barring her from the pub when she complained.  It does not appear that the defendant pub owner sought to rely on paragraph 28, Schedule 3, Part 7 of EqA.  Perhaps this was because it was so unlikely that providing separate toilets for men and women and not allowing the trans female customer to use the ladies toilets was a proportionate means of achieving a legitimate aim.  However, this is speculation and I have not been able to access the transcript of the judgment of Judge Miller.

67. The case law on the related (but conceptually distinct) question of occupational requirements in employment[41] may assist when considering the test to be applied to the gender reassignment exemption from discrimination in relation of single-sex / separate services.  The case law on occupational requirements which, after all, also concern an exemption to what would otherwise be unlawful discrimination shows that any statutory exemption must be restrictively interpreted.

68. An employment tribunal decision from 2009 (so before the EqA) shows how strictly the exemptions from discrimination must be interpreted[42].  The claimant, Ms Lawrence, was undergoing a process of gender reassignment from male to female.  She worked as a receptionist at a massage sauna which operated as a meeting place for gay and bisexual men.  Her employer required her to attend work presenting as a man, and required her to be addressed as “Marc” rather than “Abigail”.  Eventually, the claimant was dismissed and brought a claim for direct gender reassignment discrimination which the employer sought to defend by showing an occupational requirement (under s.7 of Sex Discrimination Act 1975).  It argued that the male customers in a state of undress might reasonably have objected to the presence of a woman.  The tribunal rejected the employer’s defence.  It held that, rather than treat the claimant as it did, the employer could have installed modesty screens in suitable areas, or enforced the requirement that those attending the premises wear towels in the lounge area.  The tribunal also stated that the employer could have agreed with the claimant that she be known by a gender-neutral name such as Frances or Lesley, or by a nickname that was acceptable to her.  All of these suggestions showed that there were other less discriminatory means of meeting the employer’s aim (of accommodating any objection on the part of its gay or bisexual male customers).  This case is instructive because it indicates the restrictive circumstances in which a discrimination exemption can be applied.

69. In Chief Constable of the West Yorkshire Police v A and another (No. 2), the House of Lords considered the case of Ms A who was rejected for appointment to the police force because, as a trans woman, she would not be able to carry out all the duties of a police constable and, in particular, she could not satisfy the requirement of s.54(9) of Police and Criminal Evidence Act 1984 (PACE) that personal searches of detained persons be carried out by a constable “of the same sex as the person searched”.  The Chief Constable accepted that there was a prima facie case of sex discrimination but contended that the need to have a person who was not transsexual to carry out searches was an occupational qualification.  The House of Lords disagreed, concluding that s54(9) of PACE should be interpreted as applying to the acquired gender of a post-operative transsexual who was “virtually and for all practical purposes indistinguishable from non-transsexual members of that sex”.  It is apparent from the judgment of Baroness Hale in this case that any derogation from an individual right not to be discriminated against must be interpreted strictly[43].

70. Following this case and the enactment of the Gender Recognition Act 2004, the provisions in the Sex Discrimination Act 1975 on occupational requirements (i.e. sections 7A and 7B of the 1975 Act) were amended so that employers could no longer rely on an occupational requirement for an employee not to be transsexual where that employee held a Gender Recognition Certificate.  It is a strange anomaly that the EqA does not, in the same way, make clear that an occupational requirement not to be a trans person cannot be relied on in respect of a person who holds a GRC.  In my view, this reduces the protection afforded to trans people as, in respect of occupational requirements, it would appear that holding a GRC is no longer a bar to an occupational requirement being applied by an employer.  This reduction in protection does, however, seem to have been the intention as the Explanatory Notes to the EqA (at paragraph 789) specifically refer in the examples of lawful occupational requirements to the following:

“A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.”

71. The exemption from gender reassignment discrimination in respect of single-sex / separate services in section 35 of Sex Discrimination Act 1975 was not amended by the Gender Recognition Act 2004 to make clear that such an exemption would not be available where the person being discriminated against in respect of single-sex / separate services provision held a GRC.  This may be because (as set out above) discrimination on the ground of gender reassignment in respect of service provision was not prohibited until 6 April 2008 when the Sex Discrimination (Amendment of Legislation) Regulations 2008 amended s.2A of the Sex Discrimination Act 1975 (see s.2A(1)(aa) of the SDA 1975).  Therefore, when the Gender Recognition Act 2004 was enacted with effect from 6 April 2005, gender reassignment discrimination in the provision of goods and services was not yet unlawful. 

72. Again, however, it seems odd that, with the enactment of the EqA, the exemption for gender reassignment discrimination in respect of single-sex / separate services provision was not drafted so as to exclude from the exemption those individuals holding a GRC (i.e. whose acquired sex was recognised in law by s.9 of the Gender Recognition Act 2004).

73. The Explanatory Notes for paragraph 28, Schedule 3, Part 7 of EqA provide an example (at paragraph 740) where it would be lawful to discriminate because of gender reassignment in the provision of separate or single-sex services:

“A group counselling session is provided for female victims of sexual assault.  The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there.  This would be lawful.”

74. In my view, this example is drafted too categorically because:

(1)            It is only lawful where the exclusion of trans people from the counselling sessions is a proportionate means of achieving a legitimate aim. 

(2)            Whilst the example in the Explanatory Notes may well demonstrate a legitimate aim, insufficient information is given in the example to show that the exclusion of trans people is appropriate and reasonably necessary (i.e. proportionate) to meet that aim.  In my view, to demonstrate that the exclusion is proportionate, the service-provider would need, for example, to have canvassed the opinions of the other service-users (rather than acting on assumptions); and would have to consider whether there were alternative means of achieving that aim[44].

(3)            It may only be lawful to exclude trans people from the group counselling sessions where they do not hold a GRC.  Section 9 of the Gender Recognition Act 2004 provides for legal recognition “for all purposes” of a trans person’s acquired gender.  I would doubt that a service-provider of single-sex or separate services could turn away a trans service-user who holds a GRC because this is unlikely to be proportionate.

75. Consideration of the Equality & Human Rights Commission’s Code of Practice on Services, Public Functions and Associations is also instructive[45].  It states as follows:

“13.57              If a service provider provides single sex or separate services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.

[……]

13.59              Services providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person[46] of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.”

76. At paragraph 13.58 of the Code, an example is provided of where a service-provider would probably not be able to exclude trans service-users:

“A clothes shop has separate changing areas for male and female customers to try on garments in cubicles.  The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.”

77. So, in this example, it can be seen that it would be extremely unlikely to be proportionate to exclude trans customers from using the single-sex changing rooms.

78. The Commission’s view, therefore, is that a service provider is unlikely to be able lawfully to exclude a trans service-user in relation to a service provided only or separately to men or women where the trans person is for all practical purposes indistinguishable from a non-trans service-user.  Notably, however, the Commission does not express a view in the Code on the position in respect of a trans service-user who holds a GRC and whether it can ever be lawful (i.e. proportionate to a legitimate aim) to turn away a trans service-user in relation to a service provided on a single-sex or separate basis.

79. In conclusion, on this question, whilst decision-making is on a case-by-case basis, if a service-provider sought to rely on the exemption from gender reassignment discrimination in respect of single-sex / separate services in cases where the person holds a GRC, it is likely to be extremely difficult for that service-provider to show that the discrimination is a proportionate means of achieving a legitimate aim.

Question (b)(ii):

80. By this question, I am asked on what grounds, if any, would it be legal to exclude a person with the protected characteristic of gender reassignment from a service provided on a single-sex or separate basis.  Specifically, the example is given of a women’s refuge.

81. The first point to note is that “transsexuals” (as defined in s.7 of EqA) may only be excluded from services which are themselves lawfully permitted to be provided on a single-sex or separate basis.  Therefore, one must have regard to paragraphs 26 and 27 of Schedule 3 of EqA which describe the conditions under which services may legitimately be provided on a separate or single-sex basis. 

82. By paragraph 26 of Schedule 3 of EqA, services may be provided to each sex separately and/or differently where:

(a)       in the case of services provided separately and/or differently:  a joint service for persons of both sexes would be less effective,

(b)       in the case of services provided differently:  the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and

(c)        in the case of services provided separately and/or differently, the limited provision is a proportionate means of achieving a legitimate aim.

83. By paragraph 27 of Schedule 3 of EqA, services may be provided only to men or only to women if any of the following conditions are satisfied:

(a)            only persons of that sex have need of the service;

(b)            the service is also provided jointly for persons of both sexes and the service would be insufficiently effective were it only to be provided jointly;

(c)             a joint service for persons of both sexes would be less effective and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services;

(d)            the service is provided at a place which is, or is part of (i) a hospital, or (ii) another establishment for persons requiring special care, supervision or attention;

(e)            the service is provided for, or is likely to be used by, two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex; or

(f)              there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and B might reasonably object if A were not of the same sex as B.

84. It can be seen, therefore, that paragraphs 26 and 27 of Schedule 3 of EqA set out, in effect, the legitimate aims of providing services only to men or to women or separately or differently to men and women.  The sex discrimination inherent in such service provision will not be unlawful where this is proportionate to those legitimate aims.

85. A service-provider may conclude that “transsexuals” (as defined in s.7 of EqA) should be excluded from the single-sex or separate/different services provided but only where this is a proportionate means of achieving a legitimate aim.  Unlike with sex discrimination in the provision of single-sex or separate service provision, the aims are not specifically set out in the EqA.  However, it is likely, in my view, that a court would have regard to the sorts of aims set out in paragraphs 26 and 27 of Schedule 3 to EqA and use them as a guide to the aims which would be lawful when “transsexuals” are excluded from such services.

86. I consider that the aims as to effectiveness and reasonable objection (see above) are likely to be the sorts of aims most frequently and permissibly relied on by service-providers seeking to exclude “transsexuals” from services provided on a single-sex or separate basis.  So, in the example of a women’s refuge, a service-provider may well be able legitimately to assert that trans women should be excluded from accessing the women’s refuge because the other service users were victims of domestic violence or sexual abuse by their partners and the “safe haven” provided by the refuge would not be as effective and/or other service-users might reasonably object if trans women were permitted to access the refuge.

87. However, as set out above, each case must be assessed on its merits so that, even in the example of a women’s refuge, it will be necessary for the owner/manager of such a refuge carefully and sensitively to assess the situation in order to demonstrate whether it would be proportionate to the legitimate aim of providing a safe haven for women escaping domestic violence to turn away a trans woman also seeking refuge.  If the refuge owner/manager had carefully and sensitively canvassed the opinions of the women staying at the refuge at the time that the trans woman also sought refuge and there were particular circumstances that would justify excluding the trans woman (for example, she did not have a GRC and so was still, in law, recognised as male rather than female), then it might be proportionate to do so.

88. As stated above, I consider that it would be unlikely ever to be proportionate to exclude a trans woman with a GRC from accessing services provided on a single-sex or separate basis and that would include, in my view, the example of a women’s refuge.  Nevertheless, as the example cited above in respect of lawful occupational requirements (from the Explanatory Notes to the EqA) demonstrates, it would appear that – at least in the view of the legislators – holding a GRC would not prevent occupational requirements from being applied to trans people.  So, it might well be argued that, similarly, the single-sex / separate services exemption could still apply in respect of trans individuals who have GRCs.  Until a case comes before a court under s.29 of EqA against a service provider who relies on the gender reassignment exemption in respect of providing single-sex or separate services, one cannot be certain.

89. Nevertheless, in my view, the gender reassignment exemption in relation to the provision of single-sex / separate services will most likely be upheld by a court in a case of services such as women’s refuges, rape crisis services and other similar services providing facilities or services to victims of violent and/or sexual assault.  It is these type of services where the aims of the service might most rationally be connected with the exclusion of trans individuals and so such an exclusion will be most likely to be viewed as proportionate.

Question (b)(iii):

90. By this question I am asked what the effect might be of amending the EqA so that there are no circumstances in which it is legal to exclude a person with the protected characteristic of gender reassignment from employment with, or receiving services from, a single-sex service.

91. If the exemption from gender reassignment discrimination in respect of occupational requirements and single-sex / separate services is removed entirely, then it will never be lawful for an employer to have an occupational requirement for a post-holder not to be trans; nor for a service-provider to exclude a trans person from accessing a single-sex / separate service in their reassigned or acquired gender.  Clearly, this is the objective of many transgender rights organisations who understandably view the continued “get out” in connection with occupational requirements and service-provision as undermining transgender equality.

92. However, the protected characteristic of gender reassignment is drafted very widely to protect all individuals who are proposing, are undergoing or who have undergone a process (or part of a process) of reassigning their sex.  This would, therefore, include someone who has decided to reassign but has not yet embarked on the process and who would be very far from, for example, meeting the criteria for a GRC which would give them legal recognition of their acquired gender.  Such individuals would, of course, in law still be recognised in their birth gender and one can see how an employer or service-provider may legitimately conclude it proportionate to exclude such an individual from certain employment where the post-holder is required to be female (or male) or from services that are provided only (or separately) to women (or men).  A good example might be the manager of a Rape Crisis Centre where an employer may legitimately consider that the post-holder should be female and so may wish to exclude trans individuals where they do not hold GRCs.

93. Should the Committee be considering restricting the ambit of the gender reassignment exemption in respect of occupational requirements and/or single-sex or separate services provision, perhaps a more nuanced first step might be to introduce the caveat which previously appeared in the Sex Discrimination Act 1975 in relation to occupational requirements[47] – namely, that the occupational requirements provision and/or the single-sex / separate services provision shall not apply in relation to discrimination against a person whose gender has become the acquired gender under the Gender Recognition Act 2004.  This would, at least, exclude individuals with GRC from the ambit of the exemption and, as such, give effect to s.9 of the Gender Recognition Act 2004 (which requires that the person holding a GRC is recognised for all purposes in his or her acquired gender).

Question (b)(iv):

94. I am asked what would be the effect of amending the EqA so that single-sex service providers are no longer able to exclude, on a proportionate and legitimate basis, a trans individual who holds a GRC from accessing gender-specific services or gender-specific employment.

95. I believe that I have answered this question above.  I query whether the EqA has created a regression in rights by removing the caveat in its occupational requirement provisions in respect of individuals whose gender has become the acquired gender under the GRA 2004.  In any event, I consider that there will be extremely few cases where it would be proportionate to any legitimate aim to exclude a trans individual with a GRC from single-sex services or a gender-specific employment.

96. Consequently, by amending the EqA so that single-sex services are no longer able to exclude a trans person with a GRC from accessing its services or from employment within that service, I consider that the EqA would better align with s.9 of the Gender Recognition Act 2004 (which requires that the acquired gender of an individual with a GRC is recognised “for all purposes”).

3. Gender Recognition, Transgender Equality and Participation in Sport:

97. Section 19 of the Gender Recognition Act 2004 provides as follows:

“(1)              A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.

(2)               This subsection is satisfied if the prohibition or restriction is necessary to secure—

(a) fair competition, or

(b) the safety of competitors,

at the event or events.

(3)               “Sport” means a sport, game or other activity of a competitive nature.

(4)               A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.”

98. In effect, s.19 of GRA 2004 provides that a body responsible for regulating participation in competitive sporting events may prohibit or restrict the participation in such events of a person who is recognised in the acquired gender, and is seeking to compete in the acquired gender, if this is necessary to secure fair competition or the safety of other competitors.

99. Section 195 of EqA gives effect to s.19 of GRA 2004 but applies the exemption to include “transsexuals” as defined in s.7 of EqA (so all those proposing, undergoing or who have undergone a process of changing their sex). 

100. In effect, therefore, s.195 of EqA allows a person to discriminate because of gender reassignment in respect of sections 29, 33, 34 and 35 of EqA only in relation to the participation of a trans person as a competitor in a “gender-affected activity” (defined as a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity).  Such exemption from discrimination is only permitted where it is “necessary” to secure fair competition or the safety of competitors.

Questions under section (c):

1. Is it correct to describe such decision-making as being on a case-by-case basis?

2. On what, if any grounds, would it be legal to exclude a transgender, transsexual, non-binary or a-gender person from taking part in a gender-affected sport?

3. On what, if any grounds, would it be legal to exclude a transgender, transsexual, non-binary or a-gender person who has been awarded legal recognition of their acquired gender from taking part in a gender-affected sport?

Question (c)(i):

101. I am asked whether it is correct to describe decision-making in respect of the sports exemption as being on a case-by-case basis.  That is correct.  The reference to “necessary”, in my view, encompasses the proportionality test referred to elsewhere (and required by EU law when objectively justifying what would otherwise be unlawful discrimination[48]).  Consequently, the exclusion of a trans competitor must be appropriate and reasonably necessary to meet the statutory aims (of securing fair competition or the safety of competitors).

Question (c)(ii) and (iii):

102. The clear intention behind the sports exemption (in s.19 of GRA 2004 and s.195 of EQa) is to protect the competitive integrity of gender-affected sports.  For example, a male competitor of above average ability who acquires female status under the GRA 2004 and competes as a trans woman may reach higher levels in a gender-affected sport (eg, certain track & field events) than would have been the case when competing as a man in male-only events.  However, the intention of the sports exemption is not just about safeguarding competitive gender-affected sports at the highest levels as the exemption applies to gender-affected sports at all levels so long as they are competitive.

103. By question (c)(ii) and (iii), I am asked on what grounds, if any, it would be legal to exclude a trans competitor from participating in a gender-affected sport (both in circumstances where that individual holds or does not hold a GRC).

104. By virtue of s.19 of GRA 2004 and s.195 of EqA, it is lawful for a trans competitor to be excluded from participating in a competitive gender-affected sport, game or other activity but only where this is strictly necessary to secure fair competition or the safety of other competitors.  There is no distinction drawn between a trans competitor with a GRC and one without a GRC.

105. The first point to note is that this exclusion would only be lawful in respect of a “gender-affected activity”.  Therefore, the organisers of the competition would need to be satisfied not only that the competition was single-sex but that the sport, game or other activity in the competition was such that the physical strength, stamina or physique of male competitors would put them at an advantage (or disadvantage) as compared with female competitors. 

106. So, for example, an under 16s girls football league might not be considered to be a gender-affected activity (as boys and girls under the age of 16 do not have a particular advantage or disadvantage as compared with each other by reference to physical strength, stamina or physique).  It is notable that the Football Association’s Policy on Trans People in Football[49] recognises this and only considers competitive football to be gender-affected for players who are 16 and over.  Therefore, it would not be lawful to exclude trans girls from an under 16s girls football competition.

107. Having demonstrated that an activity is “gender-affected”, an organiser would then need to show that excluding a trans competitor was “necessary” to secure fair competition or the safety of competitors.  Neither the EqA nor the GRA 2004 include any meaningful guidance to organisers of gender-affected activities about how this might be assessed.

108. In the Explanatory Notes to s.195 of EqA, the example included provides that, “It would be lawful to have men and women, though not necessarily younger boys and girls, compete in separate 100 metre races”.

109. In my view, an organiser of a gender-affected activity would need carefully to consider evidence on a case-by-case basis in order to be in a position to conclude whether a trans competitor needed to be excluded in order to secure fair competition and/or the safety of competitors. However, an organiser is more likely to be able to meet the necessity test where:

1. there is evidence that a trans competitor[50] is likely to be at an advantage by reason of continuing hormonal or other physical attributes of his or her sex at birth (eg, physique, stamina, physical strength) and the particular circumstances of that trans competitor has been assessed in consultation with the individual and his/her medical advisers; and

2. this advantage would more than trivially impact on the fairness and integrity of the competition; and/or

3. this advantage would more than trivially impact on the safety of competitors (as, for example, may be the case in contact sports such as boxing or rugby); and

4. there are no other reasonable and less discriminatory means of securing the statutory aims other than the exclusion of the trans competitor.

110. The Sports Council[51] Equality Group (SCEG) issued Guidance for National Governing Bodies of Sport on Transsexual People and Competitive Sport in September 2013[52].  This distinguishes between contact and non-contact sports and provides two different policy frameworks in respect of each category.  Within each policy framework, however, there are specific recommendations made in respect of the types of evidence that would be needed for trans competitors of different ages[53].  For certain categories of trans individuals (depending on their age and their birth sex), the policy framework recommends that evidence may be required of hormone treatment, blood-measured testosterone levels and whether they have had a gonadectomy in order to demonstrate whether testosterone levels are within the normal range of the affirmed gender.  Obviously, these are sensitive and potentially invasive medical procedures and what is clear from the policy frameworks issued by the SCEG is that a large number of “transsexuals” (as defined in s.7 of EqA) would risk being excluded from competitive gender-affected activities because they were only at the stage of proposing to or undergoing a process for the purposes of reassigning sex which may well not (if ever) include hormone treatment or gonadectomy (in the case of a trans woman).

111. I do consider it appropriate that the SCEG has made it clear in its Guidance that different policies should apply for contact and non-contact sport and reliance on these policies by an organiser would, in my view, assist with showing that an exclusion of a trans competitor under s.195 of EqA was “necessary”.  However, reliance on these policy frameworks would not be sufficient in and of itself.  An organiser would need very careful to review the individual circumstances of (1) the trans competitor who is being considered for exclusion; and (2) the gender-affected competitive event in question; and (3) other competitors in that event; and (4) whether alternatives to exclusion would secure the statutory aims (of fair competition and/or safety of competitors).

112. In conclusion, I do not consider that, at a basic level, the grounds for excluding a trans competitor from participating in a gender-affected activity differ according to whether the competitor holds a GRC or not.  The key differentiators will relate to the particular circumstances of the individual case:  on the one hand, one could have a trans woman who has a GRC but who has not had any hormonal therapy nor undergone gender reassignment surgery to change attributes of her birth sex.  In such a case, it may be “necessary” to exclude her from a competitive female boxing event because her physique and testosterone levels are within the normal range for a natal male and there might very well be justifiable concerns about the fairness and safety of her participating in the female boxing competition.  On the other hand, one could have a trans woman who does not have a GRC but who has had many years of hormonal therapy and full gender reassignment surgery.  In her case, it may not be “necessary” to exclude her from the female boxing competition.

113. I should be clear, however, that I do not consider myself an expert on the question of trans competitors in gender-affected activities.  This issue raises difficult and complex questions and, as the SCEG acknowledges, understanding of the legal and medical issues continues to develop.  It may be that the Committee would be further assisted by obtaining expert guidance from sporting organisations who have considered the complexities which might arise in connection with the participation of trans competitors in gender-affected competitive sports (such as the Sports Council, now called Sport England).

CLAIRE McCANN

Cloisters

10th November 2015

ANNEX

SCHEDULE – Specification for Advice

For the purposes of the Inquiry, the following definitions and terminology have been adopted by the Women and Equalities Committee:

“Transgender” is used in this context as an umbrella term for those people (including those with an intersex condition) who are transsexual, transgender, or who have a non-binary gender or are a- gender.

Transsexual people seek to permanently change their social gender role to the gender role opposite to that ascribed at birth to members of their biological sex. This includes accessing medical and/or surgical gender reassignment treatments, if available, to change the secondary sexual characteristics of their body to more closely resemble those of a person of the opposite biological sex. This will include genital reconstruction surgery where available and appropriate.

Transgender people seek to repeatedly, or permanently, change their social gender role to the gender role opposite to that ascribed at birth to members of their biological sex. This may include accessing medical and/or surgical gender reassignment treatments, if available, which change the secondary sexual characteristics of their body to more closely resemble those of a person of the opposite biological sex. This will not usually include genital reconstruction surgery. 

Non-binary transgender people identify as having a gender identity which includes elements of being both a man and a woman. They may seek to change aspects of their social gender role, and may access medical and/or surgical procedures, if available, to alter aspects of their secondary sexual characteristics. This will not usually include genital reconstruction surgery.

A-gender transgender people identify as being neither a man nor a woman. They may seek to remove the gendered elements of their social gender role, and may access surgical procedures, if available, to remove the gender differential of their secondary sexual characteristics. This will not usually include genital reconstruction surgery.

1)   The Adviser is asked to produce an Advice on the topic of the interpretation and application of certain sections of the Equality Act 2010 in relation to Transgender equality.

2)   In particular, the Committee would like the following points to be answered within the Advice:

a.       Protection of non-binary and a-gender people against discrimination

The Equality Act 2010 (“EqA”) Section 7(1) refers to the protected characteristic of “gender reassignment”, which a person has if he or she “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”.

Section 7(2) states that “A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment”.

Paragraph 42 of the Explanatory Notes accompanying the EqA states that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people.

Paragraph 43 of the Explanatory Notes accompanying the EqA states that “This section replaces similar provisions in the Sex Discrimination Act 1975 but changes the definition by no longer requiring a person to be under medical supervision to come within it.” This is clarified in the example: “A person who was born physically female decides to spend the rest of her 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 have the protected characteristic of gender reassignment for the purposes of the Act.”

1. Does section 7(2) define a “person” within section 7(1) solely as a transsexual person?
2. Does section 7 include within its definition transgender people, or people with non-binary gender or a-gender identities?
3. Is there any relevant case law on this issue?
4. What would be the effect of amending the EqA so that “gender identity” is substituted for “gender reassignment” as the protected characteristic? Or instead, the addition to the EqA of other identities rather than substitution?
1. Gender Recognition, Transgender Equality and Single-Sex Services

Paragraph 28 of Schedule 3, Part 7, “Separate and Single Services”, permits service providers to restrict access to or exclude from gaining access to single-sex services, a person with the protected characteristic of gender reassignment, in certain circumstances.

We understand that there is limited case law in this area, some of which actually pre-dates the 2010 Act.

1. Is it correct to describe such decision-making as being on a case-by-case basis, where permitted exclusion is “a proportionate means of achieving a legitimate aim”?
2. In relation to women’s refuges and other single-sex services (and any other relevant instances), on what, if any grounds, would it be legal to exclude a person with the protected characteristic of gender reassignment from such services?
3. What would be the effect of amending (by substitution or by addition) the EqA so that there are no circumstances in which it is legal to exclude a transgender or transsexual person from employment with, or receiving services from, a single-sex service?
4. What would be the effect of amending (by substitution or by addition) the EqA so that single-sex services are no longer able to exclude, on a proportionate and legitimate basis, a transgender or transsexual person who has been awarded legal recognition of their acquired gender, from accessing:
1. gender-appropriate services?
2. gender-appropriate employment?
3. Gender Recognition, Transgender Equality and Participation in Sport:

The Gender Recognition Act 2004 s. 19 (Sport) allows organisations responsible for regulating the participation of competitors in gender-affected sports to prohibit or restrict persons whose gender has become the acquired gender under the Gender Recognition Act where necessary to secure fair competition, or the safety of competitors.

The EqA s.195 (Sport) allows a person to contravene sections 29, 33, 34 and 35 of the EqA if they do anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity where it is necessary to do so to secure fair competition, or the safety of competitors.

9. Is it correct to describe such decision-making as being on a case-by-case basis?

2. On what, if any grounds, would it be legal to exclude a transgender, transsexual, non-binary or a-gender person from taking part in a gender-affected sport?
3. On what, if any grounds, would it be legal to exclude a transgender, transsexual, non-binary or a-gender person who has been awarded legal recognition of their acquired gender from taking part in a gender-affected sport?

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