Regulator updates guidance around job adverts and transgender applicants

Updated guidance has been published around when job adverts can exclude transgender people after campaigners complained some employers were “misusing the law”.

The Equality and Human Rights Commission (EHRC) published updated guidance on discriminatory adverts after reports of some organisations advertising for those who self-identify as female to fill what campaigners described as women-only roles.

The regulator said it recognised the “need for clarity” around the use of particular legal exemptions and that employers “can feel confident” the updated guidelines “will help them to comply with the law”.

Campaign group Fair Play For Women, which describes itself as working to protect the rights of women and girls in the UK, welcomed the guidance as “a step in the right direction” but said a “loophole” remained.

In a post on X, formerly Twitter, the group said the new guidance “makes clear men who self-identity as women are not female and should not be recruited as such”.

The organisation added: “This makes it fairer on the women who apply and the people who rely on a woman being in that role for reasons of privacy, dignity and safety.

“However, this new guidance also says men who change their legal status to female by obtaining a GRC (gender recognition certificate) can be recruited into a female role. This highlights the absurdity of a law that expects a woman to waive her need for privacy or safety simply because a man gets a certificate.”

The group said it had been reporting “rogue employers each time they misuse the law by advertising for ‘self-identifying women’ to fill women-only roles”.

In the guidance, published on Tuesday, the commission gave an example of an applicant for a role within specialist support services for women, such as a rape counsellor, being required to be someone recorded as female at birth or a transgender woman with a GRC.

But the commission said there was also an option to exclude transgender people “where it is objectively justified, and this can include those who have obtained a GRC”.

It stated that transgender women who have not obtained a GRC do not have legal status as women under the Equality Act 2010.

Another example given is of a public changing-room attendant being required to be the same sex as the people using the facilities.

The guidance said: “The requirement is intended to achieve the legitimate aim of protecting the privacy and dignity of services users. It is likely to be proportionate as there is unlikely to be a less discriminatory way of doing so. It may therefore be lawful.”

Baroness Kishwer Falkner, EHRC chairwoman, said: “As Britain’s equality regulator, we have a duty to promote and uphold Britain’s equality laws.

“We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in Schedule 9 of the Equality Act. So we have taken action to provide it.

“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them to comply with the law.

“Employers should also be aware that the EHRC will take action to uphold the Equality Act. Where we are made aware of potential misapplication of Schedule 9 provisions, we will continue to assess and take action to resolve these on a case-by-case basis.”

Fair Play For Women said Prime Minister Sir Keir Starmer “must take seriously calls to clarify that sex means biological sex in the Equality Act”.

In its election manifesto, Labour pledged to “modernise, simplify, and reform the intrusive and outdated gender recognition law to a new process” while also stating pride in the Equality Act “and the rights and protections it affords women”.

The party added: “We will continue to support the implementation of its single-sex exceptions.”