The Sex Discrimination (Gender Reassignment) Regulations 1999

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972, extend the Sex Discrimination Act 1975 (“the 1975 Act”) to cover discrimination on grounds of gender reassignment in employment and vocational training, following the judgment of the European Court of Justice in Case No. C-13/94 P v S and Cornwall County Council. They come into force on .

Regulation 2 inserts a new section 2A into the 1975 Act. This extends the 1975 Act to cover direct discrimination on the ground of gender reassignment in employment and vocational training in circumstances where an individual is treated less favourably by another person on the ground that the individual intends to undergo, is undergoing or has undergone gender reassignment. Section 2A(2) to (4) makes it unlawful for a person who is absent as a result of undergoing gender reassignment to be treated less favourably than he would be if the absence was due to sickness or injury, or some other cause, having regard to the circumstances of his case and it is reasonable for him to be treated no less favourably. The provision further amends section 82 of the 1975 Act (general interpretation provisions) by inserting a definition of gender reassignment.

Regulation 3 disapplies section 6(4)—(6) of the 1975 Act in respect of its application to any discrimination falling within section 2A. The effect of this is that discrimination in relation to pay which falls within section 2A is to be treated as falling under the 1975 Act rather than under the Equal Pay Act 1970. A corresponding amendment is made to section 8 of the 1975 Act.

Regulation 4 inserts new sections 7A and 7B into the 1975 Act. Section 7A disapplies section 6(1) and (2) of the 1975 Act in certain circumstances. It is not unlawful to discriminate on the grounds of gender reassignment where a person’s sex is a genuine occupational qualification for that job and the employer can show that his treatment of the person is reasonable in view of section 7(2) or any other relevant circumstances. Section 7B disapplies section 6(1)(a) and (c) and section 6(2)(a) and (b) in specific circumstances where sex is a genuine occupational qualification. These circumstances are supplementary to those set out in section 7(2) of the 1975 Act. Regulation 4 also makes provision for similar amendments with respect to genuine occupational qualifications in section 9 and section 11 of the 1975 Act (discrimination against contract workers and those in partnerships with others).

Regulation 5 amends section 19 of the 1975 Act (ministers of religion etc.) by disapplying the provisions of the 1975 Act in relation to discrimination under section 2A if a limitation is imposed to comply with the doctrines of a religion or to avoid offending the religious susceptibilities of a significant number of the religion’s followers.

Regulation 6 amends section 29 of the 1975 Act (discrimination in provision of goods, facilities or services) only as regards vocational training, by providing that subsection 29(1)(b) can apply to discrimination falling within section 2A in respect of goods, facilities or services relating to vocational training.

Regulation 7 amends section 53 of the 1975 Act (establishment and duties of the Commission) by inserting a paragraph which extends the duties of the Equal Opportunities Commission to promote equality of opportunity in the field of employment and vocational training for persons who intend to undergo, are undergoing or have undergone gender reassignment. It also amends section 56A of the 1975 Act (codes of practice) by empowering the Equal Opportunities Commission to issue Codes of Practice which cover the promotion of equality of opportunity in the field of employment for persons who intend to undergo, are undergoing, or have undergone gender reassignment.