1. The Equality Act 2010 & The Equality and Human Rights Commission Lynn Welsh Head of Legal 1

2. Equality Act 2010 Slide Number 2

3. Equality Act 2010 16 Parts; 28 Schedules – eg: Key concepts (P2 and sch 1) Services and public functions (P3, sch 2&3) Premises (P4, sch 4&5) Work and employment services (P5, Sch 6,7,8 & 9) Education (P6, Sch 10,11,12,13 &14) Associations (P7, Sch 15 &16) Other unlawful conduct (P8) Enforcement (P9, sch 17) Advancing equality (P11, Sch 18 &19) Exceptions (P14, sch 22 &23) 3

4. Key concepts – Protected characteristics Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion and belief Sex Sexual orientation 4

5. Gender reassignment Where a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. 5

6. Summary of definition A person is protected from discrimination if they: Have proposed to undergo gender reassignment Are in the process of reassigning their sex Undergone the process, or part of the process, previously It may include medical gender reassignment treatment, but does not require medical treatment. 6

7. Gender Recognition Certificates Holders of Gender Recognition certificates must be treated according to their acquired gender. Can have a GRC despite being pre-operative (and not visually indistinguishable from acquired gender). May not have a GRC (out of choice, due to cost or due to being married and not wishing to divorce) 7

8. Key concepts - Prohibited conduct Direct discrimination Indirect discrimination Harassment Victimisation 8

9. Direct discrimination A discriminates against B if, because of a protected characteristic, A treats B less favourably than he treats or would treat others. Discrimination by association or perception included Direct discrimination can never be justified except in relation to age 9

10. Indirect discrimination A applies a provision, criterion or practice (PCP) to everyone The PCP puts, or would put, people with a particular characteristic at a disadvantage when compared with people without that characteristic The PCP puts, or would put, B at that disadvantage and The PCP is not a proportionate means of achieving a legitimate aim. 10

11. Harassment A harasses B if he engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Includes association and perception 11

12. Exceptions to services and public functions Insurance (Sch 3, Part 5, para 22 & 23) Marriage (Sch 3, Part 6) Separate and single sex services (Sch 3, Part 7) Communal accommodation (Schedule 23, Para 3) 12

13. Exceptions – other Charities (s193 & s194) Competitive sports (s195) Gender reassignment harassment in schools (s85(10(a)) 13

14. Role and power of the Commission Slide Number 14

15. Equality and Human Rights Commission Established October 2007 as the Commission for Equality and Human Rights Replaced EOC, CRE, DRC With a remit to cover nine equality strands and human rights in GB But excluding issues which would be addressed by the Scottish Human Rights Commission

16. General duties Promote equality and diversity Promote human rights Promote good relations between groups Monitor the law Monitor progress towards change

17. Commission powers To provide information and advice Conduct inquiries To publish codes of practice To make grants Enter into binding agreements Enforce the public sector duties - assessments and compliance notices

18. Legal powers Provide legal assistance to an individual bringing a claim under the EA, or which involves equality and human rights, but not human rights alone Intervene in cases at any level, which involve equality or human rights or both Bring Judicial Review proceedings in Commission’s name, which involve equality or human rights or both Apply for an interdict Conduct investigations, including issuing unlawful act notices, and action plans 18

19. EHRC strategic priorities for using litigation powers Where action would: bring a significant positive impact in terms in an organisation or across a sector create greater understanding of rights and obligations under the equality enactments or human rights law address significant disadvantage or major abuse or denial of human rights clarify an important point of law under the Equality Act 2010 or Human Rights Act extend or strengthen protections and rights under the Equality Act 2010 and human rights law. 19

20. Test case issues ‘proposing’ to undergo gender reassignment – how someone ‘manifests’ this proposal Association and perception Indirect Discrimination Public functions Discrimination and harassment in schools Occupational Requirements complying with EU Framework Directive GRCs in single sex services/communal accommodation When someone without a GRC should be recognised for purposes of exceptions? Insurance exception Discrimination by Associations Instructing and causing discrimination 20

21. The Commission’s legal team in Scotland Strategic human rights and equality litigation www.equalityhumanrights.com/legal-and-policy/strategic- human-rights-and-equality-litigation/ Legal Team Bulletin www.equalityhumanrights.com/scotland/legal-news-in- scotland/equality-law-bulletin/ Requests for assistance: legalrequestscotland@equalityhumanrights.com 21