simplifications, clarity and/or reductions in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers. It therefore merits further consideration.”
(20) Why this interpretation would not be disadvantageous to or remove protection from trans people with or without a GRC
248. Finally, we have concluded that a biological sex interpretation would not have the effect of disadvantaging or removing important protection under the EA 2010 from trans people (whether with or without a GRC). Our reasons for this conclusion follow. We consider protection from both direct and indirect discrimination and harassment, and equal pay.
(i) Direct discrimination and harassment
249. It is now well-established that direct discrimination because of a protected characteristic (section 13 of the EA 2010) encompasses not only cases where the complainant affected by discrimination has the protected characteristic in question, but also where the discriminator perceives that the complainant has the characteristic, or in some other way associates the complainant with the protected characteristic. This can occur, for example, where the complainant is discriminated against because of caring responsibilities for a person with a protected characteristic, such as disability (as happened in Coleman v Attridge Law [2008] ICR 1128; EBR Attridge LLP v Coleman [2010] ICR 242) or where the complainant is treated detrimentally because it is thought that she or he has a particular protected characteristic even if they do not (English v Thomas Sanderson Blinds Ltd [2009] ICR 543, paras 37 to 40 per Sedley LJ, where the protected characteristic was sexual orientation). What is required is that the protected characteristic is a ground for the treatment in question. Terms such as “associative discrimination” and “discrimination by perception” are not a critical part of the analysis. What matters in the former is whether the treatment of the complainant was done because of the protected characteristic of the other person. In a case of perceived discrimination, the correct comparator is someone who is not perceived to have that protected characteristic: Chief Constable of Norfolk Constabulary v Coffey [2020] ICR 145. In Coffey the EAT (Judge David Richardson) held that where a claimant is treated less favourably on the basis of a mistaken perception that she was disabled, the correct hypothetical comparator was a person who was not perceived to be disabled and who had the same abilities as the claimant. On appeal, Underhill LJ (who gave a judgment with which the other members agreed) upheld the decision and expressly endorsed this comparator (see para 68 referring to para 66 of the EAT judgment [2018] ICR 812. (The perception-based approach was approved by Lord Mance JSC in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728 at para 85.)
Page 79
