Update for members on the recent EHRC trans guidance

On April 4 2022 the Equality and Human Rights Commission (EHRC) updated its guidance on trans peoples' use of single and same sex environments. We believe this guidance does not support trans inclusion and conflicts with the Equality Act.

Read our update and find out more below.

The EHRC have issued guidance that we believe muddies the waters in relation to trans rights and Trans inclusion, which appears to contradict their own website and conflicts with the Equality Act which in our view could risk an organisations breaching their statutory equality duties if followed.

What the Equality Act says about gender reassignment discrimination

Extract from the EHRC website 5 April 2022:

“The Equality Act 2010 says that you must not be discriminated against because you are transsexual, when your gender identity is different from the sex assigned to you when you were born. For example:

  • a person who was born female decides to spend the rest of his life as a man

In the Equality Act it is known as gender reassignment. All transsexual people share the common characteristic of gender reassignment.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one.

You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it. 

The Equality Act says that you must not be discriminated against because:

  • of your gender reassignment as a transsexual”.

The new EHRC guidance

Because the guidance (which we understand is not legally binding in anyway) appears to step away from the basic principle that any employee should be treated as they identify, the guidance is likely to be subject to judicial review and certainly any employers who follow this new guidance may in our view be at risk of successful discrimination claims at Employment Tribunal.

The Guidance proposes a range of scenarios where people can make judgements about the appropriateness of a trans inclusive approach, to the detriment of trans colleagues.

https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-provisions-equality-act

Our suggestions to members are:

  • Continue to apply the principles of the Equality Act
  • Reach out to your networks to offer support as this new guidance is causing considerable upset and fear for trans colleagues

Disclaimer

The information contained in this guidance note is for general information purposes only. The information is provided by Inclusive Employers Limited and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the information, contained. Any reliance you place on such information is strictly at your own risk.