Saturday, 24 May 2008

Protection for transsexual people in goods & services...

Amending the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 to implement the Gender Directive – goods, facilities, services and premises


Introduction

The Gender Directive implements the principle of equal treatment between men and women in relation to the access to and supply of goods and services. The Sex Discrimination Act 1975 (SDA) and the Sex Discrimination (Northern Ireland) Order 1976 (SDO), which apply to both women and men, are the main pieces of legislation in Great Britain and Northern Ireland which prohibit certain kinds of discrimination on the ground of sex, including intention to undergo, undergoing or having undergone gender reassignment.

Scope – excluded matters

The Directive does not cover:

(a) Education (including vocational training);
(b) The content of media and advertisements;
(c) The provision of goods, facilities or services (not normally provided on a commercial basis) at a place (permanently or for the time being) occupied or used for the purposes of an organised religion.”.

That means that the SDA and SDO have not been amended so far as they relate to these areas.

Indirect discrimination

The Regulations have extended the Directive-based definition of indirect discrimination that already applies in the employment field to goods, facilities, services and premises other than in relation to the excluded matters.

Harassment

The Regulations apply the freestanding definition of sex harassment, sexual harassment and gender reassignment harassment that applies in the employment field to goods, facilities, services and premises other than in relation to the excluded matters.

Gender reassignment

The Regulations extend the protection against direct discrimination and harassment, in the employment field to also apply to goods, facilities, services and premises other than in relation to the excluded matters. This is because European case law means that sex includes gender reassignment for these purposes

Single-sex exceptions


The Regulations also amend the single-sex provisions in the SDA and SDO, other than in relation to the excluded matters, to allow for different treatment of transsexual people on the ground of gender reassignment where such treatment is a proportionate means of achieving a legitimate aim.

Insurance

The premiums and benefits for a transsexual person should only be based on that person’s acquired gender if they hold a Gender Recognition Certificate and have therefore legally changed their gender from their birth sex; in all other cases premiums and benefits will be based on birth gender.

Burden of proof

The Regulations amend the SDA and SDO so that as is already the case in the employment field, in goods, facilities, services and premises other than in relation to the excluded matters, it is first up to the claimant to establish facts which could, in the absence of an adequate explanation from the respondent, lead to a conclusion that there had been discrimination. The burden of proof then shifts from the claimant to the respondent to show that there is a non-discriminatory reason for their actions.

Making a claim – the questionnaire procedure

With a view to helping a person who considers they may have been wronged under the SDA or SDO decide whether to bring a claim to a tribunal or court, whichever applies, a questionnaire is provided – the SD74. The Regulations now require that in respect of claims under the goods, facilities, services and premises provisions other than in relation to the excluded matters, once the questionnaire is served on a respondent, the respondent must reply within eight weeks beginning on the day when the questionnaire was served on them, which is already the case in the employment field.
Further information and advice

Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) champions equality and human rights for all, working to eliminate discrimination, reduce inequality, protect human rights and build good relations. The EHRC can also advise individuals who consider that their rights have been breached.


Addresses and phone numbers


England

Equality and Human Rights Commission Helpline England
Freepost RRLL-GHUX-CTRX
Arndale House
Arndale Centre
Manchester
M4 3EQ
0845 604 6610 - England main number 0845 604 6620 - England textphone
0845 604 6630 - England fax
9:00 am-5:00 pm, Monday to Friday (an out-of-hours service will start running soon)

Wales

Equality and Human Rights Commission Helpline Wales
Freepost RRLR-UEYB-UYZL
1st Floor
3 Callaghan Square
Cardiff
CF10 5BT
0845 604 8810 - Wales main number 0845 604 8820 - Wales textphone
0845 604 8830 - Wales fax
9:00 am-5:00 pm, Monday to Friday (an out-of-hours service will start running soon)

Scotland

Equality and Human Rights Commission Helpline Scotland
Freepost RRLL-GYLB-UJTA
The Optima Building
58 Robertson Street
Glasgow
G2 8DU
0845 604 5510 - Scotland Main 0845 604 5520 - Scotland Textphone
0845 604 5530 - Scotland – Fax
9:00 am-5:00 pm, Monday to Friday (an out-of-hours service will start running soon)

Equality Commission for Northern Ireland

Equality Commission for Northern Ireland
Equality House
7 - 9 Shaftesbury Square
Belfast
BT2 7DP

Telephone : 028 90 500 600 Textphone : 028 90 500 589
Enquiry Line : 028 90 890 890
Fax : 028 90 248 687
Email : information@equalityni.org

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