Briefing Note: Impact of Gender Recognition Reform on Sex Based Rights

This briefing note provided to us by Employment Solicitor Rebecca Bull examines the interaction between the Equality Act 2010 (“EqA 2010”) and the Gender Recognition Act 2004 (“GRA 2004”). The note can be accessed here:

Impact of gender recognition on sex-based rights. 11 Feb 2020

Summary

“The Scottish Government’s Equality Impact Analysis fails to understand the current law with regards to when a person has obtained female legal sex status using a Gender Recognition Certificate (“GRC”). It has not identified nor has it analysed the impact of Gender Recognition Reform on sex -based rights.

There are many sex-based rights, which are negatively affected and, in the case of equal pay, completely extinguished by suspending recognition of a person’s biological sex.

Currently there are sex discrimination exceptions in the Equality Act which allow single sex service providers to exclude both men and transwomen who do not have a GRC. Once a transwoman obtains a GRC a service provider may only rely upon a gender reassignment discrimination exception. This disallows a public body from undertaking the supporting public functions required to provide the service such as allocating budget to it.

There is cause for significant concern that single sex service provision on the lines of natal sex will be rendered unworkable and severely compromise the rights which women currently have to single sex services. Scotland is already experiencing a chilling effect on the use of the sex exceptions, which is, in my view putting local authorities at risk of breaching women’s human rights.”

Disclaimer

This note has been produced by a lawyer with a background in discrimination law as a contribution to discussion of and comment on the Scottish Government’s proposals to reform the Gender Recognition Act. It should not be treated as legal advice, but as a commentary on the legal position. It raises questions about the assumptions which appear to underpin the Scottish Government’s proposals, particularly its assessment of their impact in law, and further strengthens the case for the Scottish Government clarifying its understanding of the relevant law, setting out in detail the basis for that understanding, and commissioning an independent review of its Equality Impact Assessment via an appropriately qualified legal practitioner.