Can men be lawfully excluded from jobs reserved for women?
Due to the nature of the work, some occupations and job roles need to exclude all men from applying. For example, jobs that involve intimate care or body searches of women, staff working in female-only rape or domestic violence shelters or therapy groups are often designated female-only. Schedule 9 Part 1 of the Equality Act 2010 is the work exception which describes these Genuine Occupational Requirements.
The purpose and scope of this work exception is set out in the Explanatory notes which accompany the Equality Act.
“787: This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.
Examples are also given of when this work exception may be applied in relation to sex:
Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.
Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.
A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.
Can men who identify as transwomen be lawfully excluded from jobs reserved for women?
The vast majority of men who identify as transwomen remain members of the male sex in the eyes of the law, and can therefore be excluded from a female-only role in the same way as any man. Even if that man has obtained a Gender Recognition Certificate to change his legal sex status to female he can still be excluded from a female-only role. The last example in the explanatory notes puts it beyond doubt that employers can combine the requirement to be female and to not be a transsexual person. This means that any biological male can be excluded from a role at work regardless of gender identity or GRC status whenever this can be objectively justified.
Some employers are still getting it wrong.
Despite the law being clear, some employers are misusing the Genuine Occupational Requirement and opening up applications to “self-identifying women”. This means female service users cannot be sure that they are getting the female-only service they are expecting.
Fair Play For Women has been collecting examples since 2021 and notifying the Equality and Human Rights (EHRC) of these breaches. The EHRC has a statutory duty to encourage good practice and to promote awareness and understanding of rights under the Equality Act 2010. It is their job to make sure employers use the exceptions properly. This can involve contacting the employer directly about an inaccurate job application and publishing guidance on their website. We have repeatedly asked for specific guidance to be published in relation to Schedule 9, because this problem is widespread. We understand that work to address this problem is in hand and we will continue our engagement with EHRC to ensure a satisfactory resolution.
Examples of job adverts misusing Schedule 9 are listed at the end of this article. Please let us know if you see any others so we can report them.
Employers are getting bad advice.
It is perhaps no surprise that employers are still getting this wrong, and employees and service users uncertain about their rights.
The trade union Unite has published inaccurate advice in its “trans equality at work guide”. They tell employers it would be unlawful to exclude a man who has obtained a certificate saying he is legally female. They even go as far as to say that under these circumstances a biological male must be allowed to do a job that involves intimate contact working in the woman’s private home.
“Occupational Requirement:The Equality Act 2010 allows for an employer to recruit workers of a particular gender for jobs where there is an ‘occupational requirement’ eg. a women’s refuge. However, an employer is not allowed to discriminate against a trans person who has gained legal recognition for their acquired gender. This applies to all exemptions including, if the job involves intimate body searches and working in a private home involving intimate contact.
Examples of job adverts reported to EHRC:
EXAMPLE 1: In August 2021, Edinburgh Rape Crisis Centre advertised for a COO. The advert stated “Only women need apply for the above posts under Schedule 9, Part 1 of the Equality Act 2010”. However, they then went on to say they “especially welcome applications from … trans women“.
EXAMPLE 2: In March 2022, Kirklees & Calderdale Rape and sexual abuse centre (KCRASAC) advertised for a Domestic Violence Counsellor. The advert stated “Under the Equality Act 2010, Schedule 9, Part 1, this post is restricted to women or non-binary identifying persons“.
Schedule 9 does not cover male people who identify as non-binary.
EXAMPLE 3: In April 2022 Sheffield Rape and Sexual Abuse Centre (SRASAC) advertised for posts stating: “Please note that it is an occupational requirement that all post holders are women, in line with the Equality Act 2010, schedule 9, part 1 and paragraph 1. SRASAC is trans inclusive“.
EXAMPLE 4: In April 2023 an advert appeared for a Women’s Accommodation Support Worker for Brighton Women’s Centre.
“*This post is restricted to self-identifying women only as a genuine occupational requirement under Schedule 9 paragraph 1, Equality Act 2010 and is subject to an enhanced DBS check.”
EXAMPLE 5: Also in April 2023 there was an advert for CEO of Nottingham Women’s Centre (NWC)
“Due to the nature and sensitivity of the project’s client group, the post holder must be a self-identifying woman.”