Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999

Explanatory Note

(This note is not part of the Regulations.)

These Regulations which are made under section 2(2) of the European Communities Act 1972, extend the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”) to cover discrimination on grounds of gender reassignment in employment and vocational training, following the judgment of the European Court of Justice in Case No. C-13/94 P v S and Cornwall County Council. They come into operation on 1st August 1999.

Regulation 2 inserts a new Article 4A into the Order. This extends the Order to cover direct discrimination on the ground of gender reassignment in employment and vocational training in circumstances where an individual is treated less favourably by another person on the ground that the individual intends to undergo, is undergoing or has undergone gender reassignment. Article 4A(2) to (4) makes it unlawful for a person who is absent as a result of undergoing gender reassignment to be treated less favourably than he would be if the absence—

(a) was due to sickness or injury; or

(b) was due to some other cause and, having regard to the circumstances of the case, it is reasonable for him to be treated no less favourably.

Regulation 2(1) amends Article 2 of the Order (interpretation provisions) by inserting a definition of gender reassignment.

Regulation 3 disapplies Article 8(4) to (6) of the Order in respect of its application to any discrimination falling within Article 4A. The effect of this is that discrimination in relation to pay which falls within Article 4A is to be treated as falling under the Order rather than the Equal Pay Act (Northern Ireland) 1970. A corresponding amendment is made to Article 11 of the Order.

Regulation 4 inserts new Articles 10A and 10B into the Order. Article 10A disapplies Article 8(1) and (2) of the Order in certain circumstances. It is not unlawful to discriminate on the ground of gender reassignment where a person’s sex is a genuine occupational qualification for that job and the employer can show that his treatment of the person is reasonable in view of Article 10(2) and any other relevant circumstances. Article 10B disapplies Article 8(1)(a) and (c) and Article 8(2)(a) and (b) in specific circumstances where sex is a genuine occupational qualification. These circumstances are supplementary to those set out in Article 10(2) of the Order. Regulation 4 also makes provision for similar amendments with respect to genuine occupational qualifications in Article 12 and Article 14 of the Order (discrimination against contract workers and those in partnerships with others).

Regulation 5 amends Article 21 of the Order (ministers of religion etc.) by disapplying the provisions of the Order in relation to discrimination under Article 4A if a limitation is imposed to comply with the doctrines of a religion or to avoid offending the religious susceptibilities of a significant number of the religion’s followers.

Regulation 6 amends Article 30 of the Order (discrimination in provision of goods, facilities or services) only as regards vocational training, by providing that Article 30(1)(b) can apply to discrimination falling within Article 4A in respect of goods, facilities or services relating to vocational training.

Regulation 7 amends Article 54 of the Order (establishment and duties of the Commission) by inserting a paragraph which extends the duties of the Equal Opportunities Commission for Northern Ireland so that they include the promotion of equality of opportunity in the field of employment and vocational training for persons who intend to undergo, are undergoing or have undergone gender reassignment. It also amends Article 56A of the Order (codes of practice) by empowering the Equal Opportunities Commission for Northern Ireland to issue Codes of Practice which cover the promotion of equality of opportunity in the field of employment for persons who intend to undergo, are undergoing, or have undergone gender reassignment.