Gender recognition and the Equality Act 2010

The Gender Recognition Act 2004 enables adults to apply for a gender recognition certificate which changes their gender for most legal purposes. There is some uncertainty as to how it interacts with the Equality Act 2010, which protects people from discrimination on the basis of certain protected characteristics, including sex and gender reassignment.

Gender recognition  

The Gender Recognition Act (GRA) enables people whose gender identity does not correspond with the sex originally registered on their birth certificate (trans people) to obtain a gender recognition certificate (GRC); this provides legal recognition in their acquired gender. The act provides that legal recognition in the person’s acquired gender changes “for all purposes” the person’s sex to correspond with that gender. Thus, once in possession of a GRC, someone who was registered as male at birth would become a woman and vice versa, under the GRA. The sex recorded on their birth certificate would be amended to reflect this. The acquired gender can only be man or woman.

The legal recognition granted to GRC holders is limited by the GRA in various areas. For instance, in relation to peerages, succession, parental status regarding existing children, and certain gender-specific offences. In these circumstances, a GRC holder may lawfully be treated according to their sex registered at birth. The GRA also specifies that future legislation, including secondary legislation, may introduce further exemptions to the scope of a GRC.

In July 2018, Theresa May’s government announced a consultation on reforming the GRA in England and Wales. It said that many trans people felt that the system was intrusive, humiliating and burdensome and it wanted to make it easier for trans people to achieve legal recognition.

By the time the government responded to the consultation in 2020 Theresa May was no longer Prime Minister. The government decided not to take forward any proposals for reform, concluding that the GRA struck the right balance “in that there are proper checks and balances in the system and also support for people who want to change their legal sex”. However, it lowered the cost of applications and introduced an online process. 

The Labour Party’s manifesto for the 2024 general election contained a commitment to “modernise, simplify, and reform the intrusive and outdated gender recognition law”, while retaining the need for someone to have a diagnosis of gender dysphoria from a specialist doctor before obtaining a GRC.

Equality Act 2010

The Equality Act 2010 (EA 2010) prohibits direct and indirect discrimination, harassment and victimisation on the basis of ‘protected characteristics’. There are nine protected characteristics, including gender reassignment and sex.

It applies in various scenarios, including at work, in education, in relation to the provision of services and public functions, and to membership of clubs and associations.

The act protects men and women from discrimination on the basis of the protected characteristic of sex.

A man is defined as a “male of any age” and a woman as a “female of any age”. Those definitions do not state expressly whether “sex” in the act means biological sex, or whether it could mean ‘legal sex’; in the latter case, trans people with GRCs could be protected from sex discrimination on the basis of their acquired gender.

The EA 2010 also prohibits discrimination on the basis of gender reassignment. Someone has this characteristic if they have undergone or will undergo a process for the purpose of reassigning their sex.

People who hold a GRC will have the protected characteristic of gender reassignment, but it is not necessary to have a GRC to have this protected characteristic.

There are a number of exceptions to the prohibition on discrimination. For example, sports competition organisers are able to lawfully exclude  trans people from participating in “gender-affected activity” where this is necessary to ensure fairness or the safety of other competitors.

Separate and single-sex services, such as women-only counselling groups, may also be permitted, where their provision is a proportionate means of achieving a legitimate aim.

Interaction between equality law and gender recognition

The question of how these pieces of legislation interact, and specifically of whether a GRC is capable of changing a person’s sex for the purpose of the EA 2010, has been the subject of some uncertainty and considerable debate.

The Conservative Party manifesto for the 2024 general election said that they would amend the EA 2010 to clarify that sex meant biological sex. The Labour Party’s position during the campaign was that the existing exceptions were sufficient, but that updated guidance would help clarify the position.  

The UK Supreme Court is due to hear an appeal on the subject in November 2024. The campaign group For Women Scotland challenged statutory guidance produced by the Scottish Government which said a GRC did change a person’s sex for this purpose. They were unsuccessful in the Scottish courts, with the Inner House of the Court of Session finding that a person with a GRC possesses “the protected characteristic of sex according to the terms of their GRC” as well as the protected characteristic of gender reassignment.

The outcome of the case will have significant implications for how the EA 2010, including the exceptions, applies to trans people with GRCs as compared with trans people without a GRC. It may also have ramifications for any proposals to change the process of applying for a GRC. 

This briefing provides an analysis of the legal issues relevant to the question of how these pieces of legislation interact.