203. The consequence of an interpretation of sex in the EA 2010 as extending to certificated sex pursuant to section 9(1) and (2) of the GRA 2004 would also create an odd inequality of status between those who share the protected characteristic of gender reassignment but do or do not hold a GRC, with the smaller group (holders of a GRC) given additional rights, and no obvious means of distinguishing between the two groups. We can see no good reason why the legislature should have intended that people with the protected characteristic of gender reassignment should be regarded and treated differently under the EA 2010 depending on whether or not they possess a (confidential) certificate, even though in many (if not most) cases there will be no material distinction in their personal characteristics, either as regards gender identity, or appearance, or as to how they are perceived or treated by others or society at large. The difficulty this interpretation would create for service-providers, employers and other organisations in applying equality law to these groups is obvious. Research referred to by Sex Matters shows that, since it is in practice impossible for organisations to distinguish between people with the protected characteristic of gender reassignment who do and do not have a GRC, many organisations feel pressured into accepting de facto self-identification for the purposes of identifying whom to treat as a woman or girl when seeking to apply the group-based rights and protections of the EA 2010 in relation to the protected characteristic of sex. The result in some cases is that certain women-only groups, organisations, and charities have come under pressure (including from funders and commissioners) to include trans women and policy decisions have been taken simply to accept members or users of the opposite biological sex, either assuming that they hold a confidential GRC or on the basis of self-identification.
204. The second core provision is section 12 of the EA 2010 which defines the protected characteristic of sexual orientation and is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.
205. Section 12 provides as follows:
“12 Sexual orientation
(1) Sexual orientation means a person’s sexual orientation towards— (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex.
(2) In relation to the protected characteristic of sexual orientation— (a) a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation; (b) a reference to persons who
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