56. The P v S decision led to the adoption of the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) (“the 1999 Regulations”). The 1999 Regulations amended the SDA 1975 in important ways.
57. First, regulation 2 inserted section 2A which defined discrimination as including treating a person, B, less favourably “on the ground that B intends to undergo, is undergoing or has undergone gender reassignment” for the purposes of any provision in Part 2 or, subject to a limited exception, Part 3 of the SDA 1975. A definition of “gender reassignment” was inserted into section 82 of the SDA 1975:
“‘gender reassignment’ means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process …”
58. The 1999 Regulations did not insert a free-standing prohibition on discrimination separate from section 6. Rather, the prohibition on discriminating against a woman now prohibited direct discrimination as defined by section 2A, namely on the grounds of gender reassignment, but only in the employment field. It was therefore unlawful under section 6 for A to discriminate against a woman in the ways caught by section 6 on the ground that she intended to undergo or was undergoing or had undergone gender reassignment. In light of section 2 of the SDA 1975, this also made it unlawful under section 6 for A to discriminate against a man if A treated him less favourably on that ground. However, the subsections of section 6 which prevented the overlap with the Equal Pay Act 1970 were disapplied so that discrimination in respect of pay and pensions on the grounds of gender reassignment was prohibited under section 6: see the new section 6(8) inserted by regulation 3(1) of the 1999 Regulations.
59. Regulation 4 of the 1999 Regulations inserted section 7A which provided for an exception to the prohibition of discrimination in section 6(1) and (2) of the SDA 1975 where the discrimination fell within section 2A but where “being a man” or “being a woman” was a GOQ for the job and the treatment was reasonable in view of the circumstances described in section 7(2) and any other relevant circumstances.
60. Further, section 7B was inserted into the SDA 1975 to provide an additional exception to the unlawfulness of discrimination under certain elements of section 6(1) where there was a “supplementary genuine occupational qualification” for the job. A supplementary GOQ was defined in the new section 7B(2) as arising only in the circumstances set out in subsection (2). Thus:
- (a) The holder of the job was “liable to be called upon to perform intimate physical searches pursuant to statutory powers”: section 7B(2)(a).
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