by section 9(1). Instead, the application of such a criterion would fall to be considered as a case of indirect discrimination, with the potential for a justification defence. A certificated sex reading of sex would therefore remove this important aspect of protection in relation to direct discrimination under section 13. It is difficult to see why the GRA 2004 could have intended to remove such protection.
(ii) Indirect discrimination
258. Pursuant to section 19 of the EA 2010, unlawful indirect discrimination occurs where the discriminator applies a PCP which places the claimant and persons who share the same protected characteristic at a particular disadvantage, and the treatment in question cannot be justified. Section 19A extends that protection to persons who do not share the same protected characteristic but suffer the same disadvantage as those who do (section 19A(1)(e)).
259. Section 19A was introduced with effect from 1 January 2024 by the Equality Act 2010 (Amendment) Regulations 2023 (made under sections 12(8) and 13 of the Retained EU Law (Revocation and Reform) Act 2023) in order to preserve the effect of EU law, and in particular, to reproduce the principle established by the Court of Justice of the European Union (“the CJEU”) in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Case C-83/14) [2015] IRLR 746. In that case, the CJEU held that the principle of discrimination by association extends to both direct and indirect discrimination, so that where a group which shares a protected characteristic is put at a particular disadvantage, a person who is also put at that same disadvantage may claim discrimination even if she does not share the characteristic in question (paras 56–60). (See also British Airways plc v Rollett [2024] EAT 131, [2025] ICR 242 where Eady J, President of the EAT, confirmed that, prior to the UK’s exit from the EU, the EA 2010 would have been interpreted so as to give effect to CHEZ so that a claimant need not have the same protected characteristic as the disadvantaged group to bring an indirect discrimination claim (para 61).)
260. Consequently, transgender people (irrespective of whether they have a GRC) are protected by the indirect discrimination provisions of the EA 2010 without the need for a certificated sex reading of the EA 2010, both in respect of any particular disadvantage suffered by them as a group sharing the characteristic of gender reassignment and, where members of the sex with which they identify are put at a particular disadvantage, insofar as they are also put at that disadvantage. Again, this does not entail any practical disadvantage or involve any discordance between the claim and the individual’s position in society. On the contrary, the claim will be founded on the facts of a particular shared disadvantage. Transgender people are also protected from indirect discrimination where they are put at a particular disadvantage which they share with members of their biological sex.
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