The UK Government’s consultation on reforming the Gender Recognition Act 2004 proposes making it easier for trans people to change legal sex or gender. Commentary supporting reform has relied upon the Commission for Equality and Human Rights’ longstanding guidance on the Equality Act 2010. But the Commission’s consultation response is inconsistent with that advice. Their response also overlooks the practical implications of reform for single-sex services.
The Equality Act contains prohibitions on sex discrimination, and also discrimination against those possessing the protected characteristic of gender re-assignment, described in the Act as “transsexuals”. The Act permits, in limited circumstances, both the provision of single-sex services and the exclusion of transsexuals from those services.
A person can change their sex as a matter of law by obtaining a gender recognition certificate (GRC) under the Gender Recognition Act. But a person can be a transsexual under the Equality Act without having a GRC. The Act defines a transsexual person as a person “with the protected characteristic of gender reassignment if the person 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”. Protection under the Act is not based on having obtained a GRC.
The Commission’s guidance (last updated in October 2018) states (at p. 17):
“Generally, a business which is providing … single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment” (emphasis added).
This is in line with the Commission’s statutory Code of Practice (published in 2011) (para. 13.57).
This advice has been relied upon in commentary supporting reforms to make it easier to obtain a GRC. Finlayson, et al, arguing that reform will be of limited effect, state that the Equality Act: “already allows trans people to use the facilities and services that best align with their gender identity in almost all cases”, citing the Code of Practice.
However, the implications of the Commission’s consultation response contradict their guidance. Their response states:
“15. Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment.” (emphasis added)
If the Commission’s consultation response is correct, they cannot be correct in their guidance.
A person with the protected characteristic of gender reassignment (a transsexual) is protected against less favourable treatment because of that protected characteristic. That person’s sex according to law is unaffected. Consider a transsexual without a GRC whose birth certificate records that person as being male. Suppose that person is denied access to a single-sex service (such as a women’s refuge from domestic violence) on the basis that the person is not female. That person cannot be compared to a non-transsexual woman, because the person being denied a service is not legally a woman. That person is treated no worse than a non-transsexual man. Thus, the less favourable treatment is on account of sex, not gender reassignment. The single-sex service provider has no obligation to serve that person. Indeed, to do so would be inconsistent with the single-sex nature of their service.
The Commission recommend that reform be accompanied by “clear practical guidance” (para. 87). But their response shows that the Commission’s guidance is already wanting.
The Commission’s response later asserts that the Equality Act provisions on single-sex services “will continue to operate as they do now following reform of the GRA” (para. 81). But this overlooks the significance of possessing a GRC for inclusion in or exclusion from single-sex services. No justification is required to exclude trans persons not holding a GRC from single-sex services beyond them not being (as a matter of law) the sex for whom the service is dedicated. But separate justification is required for excluding GRC holders, because their GRC alters their legal sex. Thus, relaxing the conditions for obtaining a GRC necessarily affects who can access single-sex services. The more accessible GRC certificate are, the more access transsexual people will have to single-sex services. This is an important point which ought to be understood in the debate about reform.
As far as I can make out the argument of the author is as follows:
* the response of the EHRC to the consultation does not match its statutory guidance;
* therefore the EHRC statutory guidance is unreliable; and
* therefore the correct comparator for a trans woman bringing a claim of “gender reassignment” discrimination is a cisgender man.
All three assertions are incorrect.
The author cites this piece of the consultation response
“15. Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment”
By sex discrimination provisions, the EHRC mean bringing claims based on the protected characteristic of sex. And AFAIK this guidance is accurate. A trans woman without a GRC who is paid less than a colleague who is a cisgendered man doing similar work is unlikely to succeed in a sex discrimination case. Her legal sex is male so she is not being treated any worse because of her sex. In these circumstances she might be able to rely on discrimination by perception – if it was thought that her legal sex was female and hence the discrimination was on the grounds of sex.
The last line then says that individuals with or without a GRC are protected from gender reassignment discrimination. This is also correct. There is no in consistency between the EHRC guidelines or consultation response
The author asserts (without reference) that the correct comparator for a trans women without a GRC claiming gender reassignment discrimination in the case of a single sex space is always a cisgender male. This is incorrect.
A careful examination of the Court of Appeal case of Croft v Royal Mail  EWCA Civ 1045 and subsequent legislative changes leads to the conclusion that the EHRC statutory guidance is fully consistent with prior law. Further, courts are required by statute to have regard to the EHRC statutory guidance. And although the statutory guidance is not the law, I cannot see circumstances where a court would reject the guidance.
The author appears to be relying on the 2013 High Court case of Green EWHC 3491 (Admin) for his assertion. However, Green is a “difficult” case. A narrow view of Green leads to it being confined to its facts, or to prisons, or to trans women in single sex male spaces. Alternatively, a wider view of Green leads to the inescapable conclusion that it is per incuriam on the grounds of failing to properly apply a binding CA case (Croft) and ignoring a relevant statute.
In summary the author is on a sticky wicket as he seeks to argue that statutory guidance is incorrect and the only support for his view is a single High Court case. Things become even more perilous when a close look at Green reveals manifest errors of law (e.g. para. 8) and the judge’s admission that the Equality Act point was not argued at length (e.g. para. 64).
One final point. Claire McCann, a barrister who practices in this area of law and who has represented transgender clients including at the Supreme Court, prepared a legal opinion for the Women and Equalities Committee report. She considered on what (if any) grounds it would be legal to exclude a trans women with the protected characteristic of “gender reassignment” from single sex services. Her answer was this could only occur if the single sex exceptions were satisfied.
[BTW If I have time, I will write up case legislative history and also fully highlight the flaws with the reasoning in Green on my personal blog]