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Equality: Hidden risks for business
It may surprise you to learn that the EDI policies and practices of organisations, in all sectors throughout the country, contain unlawful elements. Why? Because organisations were misled by incorrect official guidance on the 2010 Equality Act – shocking but true. See our ‘Equality Matters’ booklet below.
The guidance was ultra vires, ie outside of the law, and thereby unlawful. That guidance was also disseminated by training agencies and management consultancies. Organisations, including private sector companies, understandably followed official guidance or guidance from trusted sources. Here’s an ultra vires extract from the policy of a household-name company:
‘Transgender individuals who plan to make, are making or have made a permanent change to their gender must be allowed to use the toilets of their acquired gender. Insisting that a transperson uses facilities that are not of their acquired gender contravenes the Equality Act 2010.’
That misstates the law in a number of ways.
Download for further detail.
Incorrect guidance was published by the Equality and Human Rights Commission (EHRC) and the Government Equalities Office (GEO).
Due to AEA’s intervention, in July and August 2020 a large number of EHRC guidance documents were amended or removed entirely from its website. There was no public announcement and external organisation were not notified. The guidance had been in place for 10 years. GEO’s guidance has existed for 6 years but is currently under review.
However, that incorrect guidance continues to be disseminated by management consultancies and training agencies.
As a consequence, misguidance is reflected in the policies and practices of countless companies. Unwittingly, such organisations are at risk of reputational hard and may well be legally exposed.
What did EHRC guidance say?
EHRC guidance was aimed at all types of organisations, including the private sector.
EHRC’s guidance routinely used the term ‘gender’ – which isn’t a protected characteristic – instead of ‘sex. Including, confusingly, in sections about service provision and the single-sex exception. That incorrect usage has been amended.
Additionally, many guidance documents contained variations of this statement:
‘Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single-sex services.’
That breached the 2010 Equality Act and [thanks to AEA’s interventions] was removed from guidance.
Someone with a GRC can be lawfully excluded, provided it is a proportionate means to achieve a legitimate aim.
The most important development in June was the judgement in Forstater v CGD Europe, which ruled that ‘gender critical’ beliefs are protected under the Equality Act Protected Characteristic ‘Religion or belief’; and also by Articles 9 & 10 of the European Court of Human Rights and the UK’s Human Rights Act. This has wide-ranging implications. Organisations need to be aware of the potential for litigation on grounds of belief discrimination or harassment.
- Akua Reindorf QC was commissioned by Essex University to review its EDI policies. Essex University is a Stonewall Champion. It received policy-advice from Stonewall.
- The Reindorf Report stated that Essex University policy states “the law as Stonewall would prefer it to be, rather than the law as it is”. By misstating the law, Essex University is legally exposed.
17 February 2020. AEA complained to the Equality & Human Rights Commission (EHRC) about unlawful statements in its guidance on the 2010 Equality Act. After prolonged correspondence, EHRC corrected its guidance in July and Aug 2020.
6 May 2021. AEA’s High Court Hearing. Permission for a Judicial Review of EHRC not granted. However, in order to defend itself, EHRC was forced to publicly make significant clarifications and concessions, stating that:
- People with a Gender Recognition Certificate can be lawfully excluded from single-sex services
- A policy which states that trans persons must be allowed access to the single-sex services of their choice is directly inconsistent with the law
- EHRC has informed some organisations that their policies are unlawful and will do the same with other organisations that come to its attention
- EHRC isn’t responsible for service-providers’ unlawful policies and that complainants should take legal action against service providers