Trans women can be excluded from female-only jobs, new EHRC guidance reads
Trans women can be excluded from female-only jobs, new EHRC guidance reads (Getty Images)
Trans women without a gender recognition certificate (GRC) can’t apply for jobs deemed only right for women, the Equality and Human Rights Commission (EHRC) has decided.
In updated guidance released on Tuesday (16 July), the EHRC said companies can legally exclude trans women from jobs advertised “for women only”, such as positions in domestic abuse shelters.
The guidance is specifically focused on those publishing the ads, to “support employers and individuals to understand where adverts are lawful and where they are potentially unlawful and discriminatory”.
It explains that “discriminatory” adverts are those which restrict jobs to people “with a protected characteristic covered by the Equality Act 2010”, such as religion, sexual orientation or disability. It would be illegal to advertise vacancy to “gay people only”, for example unless there was a legitimate reason.
The EHRC’s statement highlights that such adverts are “unlawful except in very limited circumstances where the Equality Act specifically allows such a restriction”, such as specific jobs for women if it is necessary for the role.
The latest guidance states that where a “protected characteristic is sex”, sex refers to a person’s legal sex as recorded on their birth certificate or GRC. This means a trans woman with a GRC is legally a woman.
The update follows the law as it stands because the UK has not introduced self-ID, which would allow trans people to legally change their gender without a medical diagnosis of gender dysphoria.
EHRC chairwoman Kishwer Falkner said the commission will “take action to uphold the Equality Act” and will assess companies not upholding the guidance on a “case-by-case basis”, adding: “We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in the Equality Act. So, we have taken action to provide it.
“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them comply.”
The EHRC came under fire in 2023 after advising then equalities minister Kemi Badenoch that the definition of “sex” in the Equality Act could be changed to mean “biological sex”.
In June, ahead of the general election, the Conservative government said that’s what they planned to do if they won the election. Prime minister Rishi Sunak posted on Twitter/X: “Biological sex matters. We’re protecting women and girls.”
The EHRC clarified to PinkNews that a previous version of the guidance was published in 2016 and was clarified in July 2024.
“The guidance advises that employers can require a job applicant or employee to have a particular protected characteristic, but only where having that protected characteristic is necessary for the role,” the organisation told PinkNews.
“Where an occupational requirement applies, the employer must make sure that it is objectively justifiable (a proportionate means of achieving a legitimate aim).
“Examples of jobs that an employer could objectively justify as being women-only include an attendant for a female public changing room or a role in a specialist support service for women, such as rape counselling.”
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