Trans women can be excluded from 'female-only' jobs, new EHRC guidance reads
July 19, 2024Trans women who do not have a gender recognition certificate (GRC) are not eligible to apply for jobs designated exclusively for women, according to a decision by the Equality and Human Rights Commission (EHRC).
In the updated guidance issued on Tuesday (16 July), the EHRC stated that companies can legally exclude trans women from positions advertised as “for women only,” such as roles in domestic abuse shelters.
This guidance targets those posting job advertisements, aiming to “support employers and individuals to understand where adverts are lawful and where they are potentially unlawful and discriminatory.”
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According to ‘MSN’, it clarifies that “discriminatory” ads are those that limit employment opportunities to individuals “with a protected characteristic covered by the Equality Act 2010,” such as religion, sexual orientation, or disability. For instance, it would be illegal to advertise a position for “gay people only” unless there is a legitimate reason.
The EHRC’s statement emphasises that such job ads are “unlawful except in very limited circumstances where the Equality Act specifically permits such a restriction,” such as specific jobs for women if required for the role.
The latest guidance specifies that when a “protected characteristic is sex,” sex refers to a person’s legal sex as indicated on their birth certificate or GRC. This means a trans woman with a GRC is legally recognised as a woman.
The update aligns with current law, as the UK has not adopted self-ID, which would allow trans individuals to legally change their gender without a medical diagnosis of gender dysphoria.
EHRC chairwoman Kishwer Falkner stated that the commission would “take action to uphold the Equality Act” and evaluate companies not adhering to the guidance on a “case-by-case basis.” She added, “We recognize the need for clarity regarding the lawful use of the occupational requirement exemptions set out in the Equality Act. So, we have taken action to provide it.
“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them comply.”
The EHRC faced criticism in 2023 after advising then equalities minister Kemi Badenoch that the definition of “sex” in the Equality Act could be revised to mean “biological sex.”
In June, ahead of the general election, the Conservative government announced plans to make this change if they won. Prime Minister Rishi Sunak posted on Twitter/X, “Biological sex matters. We’re protecting women and girls.”
The EHRC clarified to PinkNews that an earlier version of the guidance was published in 2016 and was updated in July 2024.
“The guidance advises that employers can require a job applicant or employee to have a particular protected characteristic, but only where having that protected characteristic is necessary for the role,” the organisation told PinkNews.
“When an occupational requirement applies, the employer must ensure it is objectively justifiable (a proportionate means of achieving a legitimate aim).
“Examples of jobs that an employer could objectively justify as being women-only include an attendant for a female public changing room or a role in a specialist support service for women, such as rape counselling.”
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