|
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57. This clause replaces similar provisions in the Sex Discrimination Act 1975 but |
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changes the definition by no longer requiring a person to be under medical supervision to |
| |
| |
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• A person who was born physically male decides to spend the rest of his life living as a |
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woman. He declares his intention to his manager at work, who makes appropriate |
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arrangements, and she then starts life at work and home as a woman. After discussion |
| |
with her doctor and a Gender Identity Clinic, she starts hormone treatment and after |
| |
several years she goes through gender reassignment surgery. She would be undergoing |
| 10 |
gender reassignment for the purposes of the Bill. |
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• An unemployed person who was born physically female decides to spend the rest of |
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her life as a man. He starts and continues to live as a man. He decides not to seek |
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medical advice as he successfully ‘passes’ as a man without the need for any medical |
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intervention. He would be undergoing gender reassignment for the purposes of the |
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Clause 8: Marriage and civil partnership |
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58. This clause defines the protected characteristic of marriage and civil partnership. |
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People who are not married or civil partners do not have this characteristic. |
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59. The clause also explains that people who have or share the common characteristics of |
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being married or of being a civil partner can be described as being in a marriage or civil |
| |
partnership. A married man and a woman in a civil partnership both share the protected |
| |
characteristic of marriage and civil partnership. |
| |
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60. This clause replaces similar provisions in the Sex Discrimination Act 1975. |
| |
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• A person who is engaged to be married is not married and therefore does not have this |
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protected characteristic. |
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• A divorcee or a person whose civil partnership has been dissolved is not married or in |
| 30 |
a civil partnership and therefore does not have this protected characteristic. |
| |
| |
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61. This clause defines the protected characteristic of race. For the purposes of the Bill, |
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“race” includes colour, nationality and ethnic or national origin. |
| 35 |
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|
| |
| |
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(a) | a reference to a person who has a particular protected characteristic is |
| |
a reference to a transsexual person; |
| |
(b) | a reference to persons who share a protected characteristic is a |
| |
reference to transsexual persons. |
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8 | Marriage and civil partnership |
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(1) | A person has the protected characteristic of marriage and civil partnership if |
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the person is married or a civil partner. |
| |
(2) | In relation to the protected characteristic of marriage and civil partnership— |
| |
(a) | a reference to a person who has a particular protected characteristic is |
| |
a reference to a person who is married or is a civil partner; |
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(b) | a reference to persons who share a protected characteristic is a |
| |
reference to persons who are married or are civil partners. |
| |
| |
| |
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|
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62. The clause explains that people who have or share characteristics of colour, |
| |
nationality or ethnic or national origin can be described as belonging to a particular racial |
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group. A racial group can be made up of two or more different racial groups. |
| |
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63. This clause replaces similar provisions in the Race Relations Act 1976. |
| 5 |
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• Colour includes being black or white. |
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• Nationality includes being a British, Australian or Swiss citizen. |
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• Ethnic or national origin includes being from a Roma background or of Chinese |
| |
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• A racial group could be “black Britons” which would encompass those people who |
| |
are both black and who are British citizens. |
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Clause 10: Religion or belief |
| |
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64. This clause defines the protected characteristic of religion or philosophical belief or |
| 15 |
lack of such religion or belief. It is a broad definition in line with Article 9 of the European |
| |
Convention on Human Rights. The main limitation for the purposes of Article 9 is that the |
| |
religion or belief must have a clear structure and belief system. Denominations or sects within |
| |
a religion can be considered to be a religion or belief, such as Protestants and Catholics within |
| |
Christianity. Political beliefs and beliefs in scientific theories are not religious or |
| 20 |
philosophical beliefs for these purposes. This clause provides that people who are of the same |
| |
religion or belief share the protected characteristic of religion or belief. Depending on the |
| |
context this could mean people who, for example, share the characteristic of being Protestant |
| |
or people who share the characteristic of being Christian. |
| |
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65. This clause replaces similar provisions in the Employment Equality (Religion or |
| |
Belief) Regulations 2003 and the Equality Act 2006. |
| |
| |
• The Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, |
| |
Rastafarianism, Sikhism and Zoroastrianism are all religions for the purposes of this |
| 30 |
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• Communism, Darwinism, Fascism and Socialism are not beliefs that fall within the |
| |
definition; nor is adherence to a particular football team. However, beliefs such as |
| |
atheism and humanism would be covered. |
| |
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|
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| |
| |
| |
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(c) | ethnic or national origin. |
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(2) | In relation to the protected characteristic of race— |
| |
(a) | a reference to a person who has a particular protected characteristic is |
| 5 |
a reference to a person of a particular racial group; |
| |
(b) | a reference to persons who share a protected characteristic is a |
| |
reference to persons of the same racial group. |
| |
(3) | A racial group is a group of persons defined by reference to race; and a |
| |
reference to a person’s racial group is a reference to a racial group into which |
| 10 |
| |
(4) | The fact that a racial group comprises two or more distinct racial groups does |
| |
not prevent it from constituting a particular racial group. |
| |
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(1) | Religion means any religion and a reference to religion includes a reference to |
| 15 |
| |
(2) | Belief means any religious or philosophical belief and a reference to belief |
| |
includes a reference to a lack of belief. |
| |
(3) | In relation to the protected characteristic of religion or belief— |
| |
(a) | a reference to a person who has a particular protected characteristic is |
| 20 |
a reference to a person of a particular religion or belief; |
| |
(b) | a reference to persons who share a protected characteristic is a |
| |
reference to persons who are of the same religion or belief. |
| |
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|
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| |
| |
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66. This clause is a new provision which explains that references in the Bill to people |
| |
having the protected characteristic of sex are to mean being a man or a woman, and that men |
| |
share this characteristic with other men, and women with other women. |
| 5 |
Clause 12: Sexual orientation |
| |
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67. This clause defines the protected characteristic of sexual orientation as being a |
| |
person’s sexual orientation towards: |
| |
• people of the same sex as him or her (in other words the person is a gay man or a |
| 10 |
| |
• people of the opposite sex from him or her (the person is heterosexual) |
| |
• people of both sexes (the person is bisexual). |
| |
68. It also explains that references to people sharing a sexual orientation mean that they |
| |
are of the same sexual orientation. It relates to a person’s feelings rather than their actions. |
| 15 |
| |
69. The definition is designed to replicate the effect of similar provisions in the |
| |
Employment Equality (Sexual Orientation) Regulations 2003 and the Equality Act 2006. |
| |
| |
• A man who experiences sexual attraction towards both men and women is ‘bisexual’ |
| 20 |
in terms of sexual orientation even if he has only had relationships with women. |
| |
• A man and a woman who are both attracted only to people of the opposite sex from |
| |
them share a sexual orientation. |
| |
• A man who is attracted only to other men is a gay man. A woman who is attracted |
| |
only to other women is a lesbian. So a gay man and a lesbian share a sexual |
| 25 |
| |
| |
|
| |
| |
| |
| |
In relation to the protected characteristic of sex— |
| |
(a) | a reference to a person who has a particular protected characteristic is |
| |
a reference to a man or to a woman; |
| |
(b) | a reference to persons who share a protected characteristic is a |
| 5 |
reference to persons of the same sex. |
| |
| |
(1) | Sexual orientation means a person’s sexual orientation towards— |
| |
(a) | persons of the same sex, |
| |
(b) | persons of the opposite sex, or |
| 10 |
(c) | persons of either sex. |
| |
(2) | In relation to the protected characteristic of sexual orientation— |
| |
(a) | a reference to a person who has a particular protected characteristic is |
| |
a reference to a person who is of a particular sexual orientation; |
| |
(b) | a reference to persons who share a protected characteristic is a |
| 15 |
reference to persons who are of the same sexual orientation. |
| |
| |
|
| |
| |
| |
Chapter 2: Prohibited conduct |
| |
Clause 13: Direct discrimination |
| |
| |
70. This clause defines direct discrimination for the purposes of the Bill. |
| |
71. Direct discrimination occurs where the reason for a person being treated less |
| 5 |
favourably than another is a protected characteristic listed in clause 4. This definition is broad |
| |
enough to cover cases where the less favourable treatment is because of the victim’s |
| |
association with someone who has that characteristic (for example, is disabled), or because the |
| |
victim is wrongly thought to have it (for example, a particular religious belief). |
| |
72. However, a different approach applies where the reason for the treatment is marriage |
| 10 |
or civil partnership, in which case only less favourable treatment because of the victim’s status |
| |
amounts to discrimination. |
| |
73. This clause uses the words “because of” where the current legislation contains various |
| |
definitions using the words “on grounds of”. This change in wording does not change the |
| |
legal meaning of the definition, but rather is designed to make it more accessible to the |
| 15 |
ordinary user of the Bill. |
| |
74. The clause also provides that: |
| |
• for age, different treatment that is justified as a proportionate means of meeting a |
| |
legitimate aim is not direct discrimination; |
| |
• in relation to disability it is not discrimination to treat a disabled person more |
| 20 |
favourably than a person who is not disabled; |
| |
• racial segregation is always discriminatory; |
| |
• discrimination because of religious belief can occur even where both discriminator |
| |
and victim are of the same religion or belief; |
| |
• in non-work cases, treating a woman less favourably because she is breast-feeding a |
| 25 |
baby who is more than six months old amounts to direct sex discrimination; and |
| |
• men cannot claim privileges for women connected with pregnancy or childbirth. |
| |
| |
75. The clause replaces the definitions of direct discrimination in current legislation and is |
| |
designed to provide a more uniform approach by removing the current specific requirement |
| 30 |
for the victim of the discrimination to have one of the protected characteristics of age, |
| |
disability, gender reassignment and sex. Accordingly, it brings the position in relation to these |
| |
| |
|
