Sex discrimination

Sex discrimination is when you are treated differently because of your sex, in certain situations covered by the Equality Act 2010.

The treatment could be a one-off action or could be caused by a rule or policy. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to sex is lawful. 

You must not be discriminated against because:

• you are (or are not) a particular sex
• someone thinks you are the opposite sex (this is known as discrimination by perception)
• you are connected to someone of a particular sex (this is known as discrimination by association)

In the Equality Act 2010, sex is understood as binary being either male or female. It can mean a group of people like men or boys, or women or girls.    

Under the Act, a person’s legal sex is the sex recorded on their birth certificate or their Gender Recognition Certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. 

There are four main types of sex discrimination.

Direct discrimination

Direct discrimination happens when, because of your sex, someone treats you worse than someone of the opposite sex who is in a similar situation.

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that applies in the same way to both sexes but which puts you at a disadvantage because of your sex.

Indirect sex discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as objective justification.

Harassment

There are three types of harassment relating to sex.

The first type of harassment is the same for all of the protected characteristics. It is when someone makes you feel humiliated, offended or degraded.

The second type of harassment is called sexual harassment. This is when someone makes you feel humiliated, offended or degraded because they treat you in a sexual way. This is known as 'unwanted conduct of a sexual nature' and covers verbal and physical treatment, like sexual comments or jokes, touching, or assault. It also covers sending emails of a sexual nature, or putting up pornographic pictures.

The third type of harassment is when someone treats you unfairly because you refused to put up with sexual harassment.

It can also cover unfair treatment even if you had previously accepted sexual conduct.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

Victimisation

Victimisation is when you are treated badly because you have made a complaint of sex related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of sex discrimination.

The Equality Act has some exceptions that allow employers or organisations to discriminate because of your sex. 

A difference in treatment may be lawful if:

• Being a particular sex is essential for a job: this is called an occupational requirement. This includes some jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are provided. For example, a gym could employ a changing room attendant that is the same sex as the users of that room. 
   
• An organisation is taking positive action. Positive action might be used to encourage or develop people of a sex that is under-represented or disadvantaged in a role or activity. For example, an engineering firm places a job advert for a trainee engineer stating that applications from women are welcome. 

Other exceptions

The armed forces can refuse to employ a woman, or limit her access to training or promotion if it means they can ensure the combat effectiveness of the armed forces.

In competitive sports the organisers can hold separate events for men and women because the differences in stamina, strength and physique would otherwise make the competition unfair.

There are several situations in which an organisation can lawfully provide single sex services. In all circumstances they must be able to justify it. For example:

• offering a women-only support service to victims of domestic violence who are women is likely to be justifiable even if there is no parallel service for men due to insufficient demand

A religious organisation can sometimes restrict employment to one sex if the role is for religious purposes. For example:

• an orthodox synagogue can require its rabbi to be a man