A lawyer contacted by HR magazine explained that the EHRC's guidance, updated on Tuesday (16 July), was intended to clarify that the definition of sex as a requirement for job roles is the legal record of individuals' sex on their birth certificate or Gender Recognition Certificate (GRC).
The EHRC explained that employers can only exclude people on the basis of their sex when necessary for the role.
However, it advised that where the candidate is required to be a woman this could exclude transgender women, even those with a GRC, if “objectively justifiable”.
The guidance makes clear that employers must be able to prove they have a legitimate reason for excluding transgender people from roles, explained Bobbi Pickard, CEO of consultancy, charity and training organisation Trans in the City.
She told HR magazine: “The Equality Act hasn’t changed since 2010 and the EHRC guidance reports its current position correctly.
“That said, 'sex' is not defined in the act explicitly and is assumed to be the sex that has been assigned to you on your birth certificate either at birth or via the GRC process.
“The provision to exclude transgender people, and as always the focus here appears only focused on trans women, has always been in place in the act.
“The important phrase is 'objectively justify'. To exclude trans women, you must prove objectively why they cannot be included or able to be in an environment.”
Read more: How HR can create a trans inclusion policy
The guidance noted that employers can only advertise a job with requirements for the candidate to have a protected characteristic, such as sex, as an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010.
It pointed to roles such as rape counselling as examples of where a job could be advertised as only for women – including those recorded as female at birth and transgender women with a GRC. This would exclude transgender women without a GRC.
The ERHC guidance stated: “Schedule 9 permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include those who have obtained a GRC”.
Pickard added that the application of the guidance would be unlikely to exclude many transgender candidates from roles.
“The reality of the situation, and perhaps something that might lead to questions about why this subject is receiving such attention, is that the situations where it could be proven that a trans women’s exclusion could be objectively justified are very small.
“Additionally the amount of trans women in the UK is tiny, approximately 48,000. The amount of potential candidates for any such role therefore, with both the motivation and qualifications to apply, would be incredibly small.”
A tribunal earlier this year, in May, showed that the Equality Act balances rights for transgender individuals with the requirement of a role. Ros Adams, a female counsellor working at a rape crisis centre, asked a nonbinary colleague to reveal their assigned sex at birth to a service user.
The tribunal ruled that the centre had assumed the counsellor’s views were transphobic, or “gender realist”, which led to Adams’ resignation as she did not feel safe at work.
The judge said: "This is one of these cases where sex does matter in that the respondents are a rape crisis centre," where female service users could feel unsafe receiving rape counselling from someone assigned male at birth.
Read more: "Sex realist" unfairly dismissed from rape crisis centre, tribunal rules
Simon Fanshawe, co-founder of diversity and inclusion consultancy Diversity by Design, told HR magazine that some people who would rather that the Equality Act be amended with a clear distinction between for biological sex and gender might disagree with the guidance.
“What the guidance represents is a statement of the law,” he said. “The problem is that the law has within it an inconsistency and a confusion. That's why people have been urging EHRC to say that sex means biological sex.”
He added that the EHRC guidance reflects the broad definition of sex under the Equality Act.
Fanshawe continued: “What the EHRC has said is that legal sex means both biological women and those with a GRC. However, it also makes clear that there are very obvious examples where the sex exemptions should be taken into account.
“If people don't like it, the problem is that the law needs to be changed rather than give EHRC a hard time. The guidance is correct but there is a clear issue that needs to be resolved.”
The EHRC guidance also addressed how employers should approach encouraging candidates from particular groups, including ethnic minorities and the LGBTQ+ community, to apply for roles.
“Guidance on discriminatory adverts” can be found on the EHRC website, here.
