- (b) The holder of the job had to live in a private home and the job involved a degree of physical or social contact with a person living in the home or knowledge of the intimate details of that person’s life and that person might reasonably object to the job being held by someone who was undergoing or who had undergone gender reassignment: section 7B(2)(b).
- (c) The holder of the job would have to share accommodation provided by the employer with other employees who, for the purpose of preserving decency and privacy, might reasonably object to sharing the accommodation and facilities with someone whilst the job holder was undergoing gender reassignment: section 7B(2)(c) and 7B(3).
- (d) The holder of the job provided personal services to vulnerable individuals and the employer’s reasonable view was that the services could not be effectively provided by someone undergoing gender reassignment: section 7B(2)(d) and 7B(3).
61. Some of these exceptions (such as that described in (b) above) were limited to where the person was undergoing or had undergone gender reassignment and did not except discrimination where the person intended to undergo gender reassignment. Others (such as that described in (c) above) applied only where the person intended to undergo or was undergoing gender reassignment but not where the person had undergone gender reassignment. Similar exceptions to discrimination were also provided for other forms of employment, including contract workers (regulation 4(2)-(3) amending section 9 of the SDA 1975), and partnerships (regulation 4(4)-(5) amending section 11 of the SDA 1975).
62. The 1999 Regulations did not amend the definitions of “man” and “woman” in the SDA 1975.
(8) The GRA 2004 as enacted
63. The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (Application No 28957/95) (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 (“Bellinger”). In Goodwin, the applicant’s biological sex was male but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the applicant’s right to respect for private life under article 8 of the Convention for there to be no legal recognition of her acquired gender. The ECtHR described the applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital. The Court referred to various difficulties faced by the
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