Strand Two: Key Finding 3

Comparing legal protections

To understand the effects of decertification on Equality Law provisions, we explored the frameworks adopted for other “protected characteristics” (e.g., religion and disability).

We concluded that there would be value in merging two protected characteristics in Equality Law: ‘sex’ and ‘gender reassignment’ to create a new ground of ‘gender’. This ground would include protection from discrimination and the Public Sector Equality Duty for people facing inequality on grounds of sexed embodiment, gender transitioning, identity and expression as agender and nonbinary, stereotypical gender assumptions, and inequality based on the subordination of ‘feminised’ traits, norms, and values.

Some research participants expressed concern that Equality Law protections would be hindered if people’s sex/gender no longer constituted a legal status. However, social inequalities can exist as grounds for Equality Law without forming a legal characteristic. Sexual orientation and race, for instance, are recognised equality grounds. Neither requires people to have a legal sexuality or race. It would be troubling to imagine, for instance, a system in which the state registered a person’s sexuality and required them to undergo a state-based system of scrutiny and permission before they could change it.

As a possible future equality ground, gender can develop in different ways. The protected characteristic of “religion and belief” offers one set of legal thoughtways based on beliefs, practices, and community. Disability offers another set of legal thoughtways attuned to bodily impairment, social disadvantage, and fluctuation by time and context.

For further discussion on rethinking equality protection on grounds of gender/ sex, see F Renz and D Cooper, “Reimagining gender through equality law: what legal thoughtways do religion and disability offer?” Feminist Legal Studies 2022 (forthcoming).

Read more about Strand Two’s key findings:

 Equality governance