Question 14: Do you think that the operation of the occupational requirement exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
[third draft, 11/10/18]
As with question 13, a change to the GRA which makes it possible for a broader range of people to change their legal sex has the potential to affect this provision in two divergent ways. I think both are likely to occur in different contexts.
Organisations which employ people for whom being of a particular sex is an occupational requirement will have to reconsider how they use this exception, if there is an enlarged group of people whose legal sex has been changed but who are not necessarily undergoing a medical transition.
Some organisations will conclude that excluding all transsexuals from these posts, including those with a GRC, is the only way to ensure that their service users receive an appropriate service.
This therefore increases the likelihood that a conflict will arise between the privacy provisions in Section 22 of the GRA and the application of a genuine occupational requirement that a particular post must be held by a person who is of a particular sex and not transsexual. If an applicant for such a post has a GRC and does not disclose their trans status, then the employer has no way to confirm that they are not eligible for the post.
Other organisations will conclude that employing people of a particular sex is not a proportionate means of achieving a legitimate aim, and will drop the occupational requirement altogether.
The current highly charged nature of the political discourse around these issues means that organisations are likely to come under some pressure to take this latter course of action. The application of these exceptions is already a matter of political lobbying by organisations such as Stonewall and Gendered Intelligence, who suggested in their evidence to the Women and Equalities Select Committee Trans Inquiry that all the single-sex exceptions in the Equalities Act should be dropped (https://womansplaceuk.org/references-to-removal-of-single-sex-exemptions/).
Although the government has now stated that it will not make changes to the Equality Act at this time, this view remains very influential. A change to the procedure for obtaining a GRC would add weight to the view that gender identity is a more meaningful category than sex, and that single-sex occupational requirements are therefore not legitimate.
A third likely change is that employers who advertise posts that are available only to people of a certain sex (and not transsexual people) are more likely to be challenged in court. This is because there will be an enlarged group of people who will be (lawfully) discriminated against in this way, and among this enlarged group there are activists in a vocal movement which argues for the exceptions to be removed from the law.
Having observed the long-running and costly legal case pursued against Vancouver Rape Relief, when a transwoman was refused voluntary employment there in 1995 (https://en.wikipedia.org/wiki/Kimberly_Nixon_Rape_Relief_Case), it would not be surprising if some organisations choose not to apply an occupational requirement for their employees not to be transsexual, rather than jeopardise the operation of their whole service by risking a court challenge, or a boycott campaign.
While this is an understandable response by service providers, it would be directly harmful to those service users who need to be supported by female workers. People who have experienced rape or sexual abuse are often living with complex PTSD. If they cannot access a support service for fear of being retraumatised, this will be a grave injustice.
The government should issue new guidance which unambiguously reaffirms that use of the exceptions is lawful and advises employers to consult with their service users when deciding whether to apply a single-sex occupational requirement to a post. The crucial assessment of whether such a requirement is proportionate and legitimate should give more weight to the needs of the people directly affected (the users of the service) than the views of the public at large, or campaigners with a particular interest.