Using the Law to Protect Women's Rights & Where the Law Can Go Further

International Women's Day: Using the Law to Protect Women's Rights & Where the Law Can Go Further Presented by: Sarah McKeown, Nikolas Clarke, Eleanor Sibley, Natalie York, Anna Dannreuther Date: March 08, 2022 Equality Act 2010 ('EQA') The protected characteristics The following characteristics are protected characteristics: 1. Age 2. Disability; 3. Gender reassignment 4. Marriage and civil partnership 5. Pregnancy and maternity 6. Race 7. Religion or belief 8. Sex 9. Sexual orientation Sex In relation to the protected characteristic of sex: a. A reference to a person who has a particular protected characteristic is a reference to a man or to a woman. b. A reference to persons who share a protected characteristic is a reference to persons of the same sex. General Interpretation - "man" means a male of any age - "woman" means a female of any age Gender Reassignment 1. A person has the protected characteristic of gender reassignment if the 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. 2. A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment. 3. In relation to the protected characteristic of gender reassignment4. A reference to a person who has a particular protected characteristic is a reference to a transsexual person; 5. A reference to persons who share a protected characteristic is a reference to transsexual persons. Direct Discrimination - A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. - If the protected characteristic is sex: 1. Less favorable treatment of a woman includes less favorable treatment of her because she is breast-feeding; 2. In a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. - Subsection (6)(a) does not apply for the purposes of Part 5 (work). Indirect Discrimination - A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. - For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if: a. A applies, or would apply, it to persons with whom B does not share the characteristic, b. It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, c. It puts, or would put, B at that disadvantage, and d. A cannot show it to be a proportionate means of achieving a legitimate aim. - The relevant protected characteristics are: 1. Age; 2. Disability; 3. Gender reassignment; 4. Marriage and civil partnership; 5. Race; 6. Religion or belief; 7. Sex; 8. Sexual orientation. Discrimination Under The ECHR Article 14 - Prohibition of Discrimination "1. The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." - No independent existence - another ECHR right (e.g. Art. 8 right to respect for private and family life) must be engaged, although it need not necessarily be breached - Prohibits discrimination on "any ground"/"any other status" - has been interpreted broadly. Includes gender identity - Prohibits direct and indirect discrimination: and can require differential treatment:  Direct discrimination - difference in treatment of persons in analogous or relevantly similar situations, based on an identifiable characteristic or status  Indirect discrimination - neutrally formulated measure which has a disproportionately prejudicial impact on a particular group  MS can treat groups differently to correct "factual inequalities." Failure to do so can breach Art. 14 - Differences in treatment (or failures to treat differently) are discriminatory if no objective and reasonable justification:  Has there been a difference in treatment of persons in analogous/relevantly similar situations or a failure to treat differently persons in different situations?  If so does it pursue a legitimate aim, and are the means employed reasonably proportionate to the aim pursued?