With Woman

Gender Recognition Certificate

In the UK getting a Gender Recognition Certificate (GRC) is a means of having your preferred new gender identity legally recognised and your sex changed on your birth certificate to either male or female. This was introduced under the Gender Recognition Act 2004. It is not possible to choose non-binary or any of the other new gender identities.

To apply for a GRC the applicant needs to be:

People can apply even if they have not had any gender affirming surgery or treatments, or do not plan to have any.

A GRC has the function of changing the treatment of a person’s sex in law (sometimes referred to as “legal sex“). This has been reinforced in Lady Haldane’s ruling that sex is “not limited to biology” and that “a person with a GRC” in the female gender comes within the definition of “woman” for the purposes of section 11 of the Equality Act”.

It’s estimated that about 5000 people have a Gender Recognition Certificate – it’s clear most people who identify as trans do not have one.

The Equality Act

You may feel you want to know more about the Equality Act 2010. It can seem complex, but it’s worth being familiar with the basic points. One of our colleagues has shared some guidance to help you:

The Equality Act outlaws discrimination, harassment or victimisation in employment and services on the basis of nine protected characteristics (PCs). These include ‘sex’ (which means biological sex) and ‘gender reassignment’ (we explain more about what this means below) . For the purpose of making a discrimination claim against an employer or service provider, an individual compares their situation with an actual or hypothetical individual in the same situation but who does not share their protected characteristic. For example, for a claim on grounds of religion or belief to succeed, the claimant would have to show that they had been treated less favourably than someone with a different religion or belief has been (or, hypothetically, would be). This is known as the comparator.

Sex

All of us have a sex, and so are covered by the Protected Characteristic (PC) of sex. This means that in employment and the provision of services both men and women are protected against discriminatory treatment.

An individual, or a group of individuals, can bring a claim against an employer or service provider if they are treated less favourably than a person of the opposite sex, because of their sex. For sex discrimination claims, the comparator is someone of the opposite sex.

The Equality Act does, however, permit some rational discrimination on grounds of sex. These are known as single-sex exceptions. Discriminating between women and men is legal in the following six situations (Equality Act 2010, Part 16, Schedule 3, Part 7, Para 26) where the provision of separate-sex or single-sex services is a proportionate means to achieve a legitimate aim. in employment, where being of a particular sex is a genuine occupational requirement.

You can read further examples of where sex discrimination is lawful here.

Gender Reassignment

Gender reassignment is also a Protected Characteristic (PC) . This PC covers anyone planning to undergo, in the process of undergoing or having undergone some form of gender reassignment. It applies to anyone at any stage of “transition” and does not require a gender recognition certificate or indeed surgery or any medical intervention. It is understood to be a process and not an identity, and there is no reference to “Gender Identity” in the Equality Act. The PC of gender reassignment gives legal protection if discriminated against in employment or services.

• Discrimination means being treated less favourably in comparison with someone who does not have the protected characteristic of gender reassignment. The Equality and Human Rights Commission has given guidance which states that the comparator of someone without a Gender Recognition Certificate is a person of the same birth sex. It should therefore be noted that while the PC of Gender Reassignment provides protection against discrimination, it does not give rights to access single-sex spaces and services of the opposite sex, or genuine occupational requirements reserved for the opposite sex, or other single-sex exceptions.

• Where it remains a “proportionate means of achieving a legitimate aim“, someone with a GRC could still be excluded from single-sex provision (and the explanatory notes for service provision clearly anticipate this) but the legal threshold would be considerably higher than in the case of someone without a GRC. In practice, that means that exclusion of a male person who has a GRC, and is thus legally female, would rely on specific provisions of the Equality Act relating to exclusion on grounds of gender reassignment, rather than more general provisions relating to exclusion on grounds of sex. These specific provisions are not available across all of the single-sex exceptions – for example existing for services, but not for associations.

• For example, rightly you can not say “your contract is not being renewed because you are trans“. However, this does not mean that the organisation has to treat the person as the gender or sex they identify with. A male who identifies as a transwoman cannot be discriminated against because of their gender reassignment but this doesn’t mean they have the right to use the women’s changing rooms at work.

• Due to the complexity and difficulty in implementing the law, some campaigners have asked the government to make clear that sex in the equality act refers to biological sex. Organisations or employers may have an equality statement describing how they follow the Equality Act and promote equality. They can include a range of attributes that are not in the Equality Act (Protected Characteristics) but they must list the nine PCs. If they omit the word “sex” this is unlawful and removes an important protection. Read more here.

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