Exceptions for genuine occupational qualifications
4.—(1) After Article 10 of the Order (exception where sex is a genuine occupational qualification) there shall be inserted the following Articles—
“Corresponding exception relating to gender reassignment
10A.—(1) In their application to discrimination falling within Article 4A, paragraphs (1) and (2) of Article 8 do not make unlawful an employer’s treatment of another person if—
(a)in relation to the employment in question—
(i)being a man is a genuine occupational qualification for the job; or
(ii)being a woman is a genuine occupational qualification for the job; and
(b)the employer can show that the treatment is reasonable in view of the circumstances described in the relevant sub-paragraph of Article 10(2) and any other relevant circumstances.
(2) In paragraph (1) the reference to the employment in question is a reference—
(a)in relation to any sub-paragraph of Article 8(1), to the employment mentioned in that sub-paragraph;
(b)in relation to Article 8(2)—
(i)in its application to opportunities for promotion or transfer to any employment or for training for any employment, to that employment;
(ii)otherwise, to the employment in which the person discriminated against is employed or from which that person is dismissed.
(3) In determining for the purposes of paragraph (1) whether being a man or being a women is a genuine occupational qualification for a job, Article 10(4) applies in relation to dismissal from employment as it applies in relation to the filling of a vacancy.
Supplementary exceptions relating to gender reassignment
10B.—(1) In relation to discrimination falling within Article 4A—
(a)Article 8(1)(a) or (c) does not apply to any employment where there is a supplementary genuine occupational qualification for the job;
(b)Article 8(2)(a) does not apply to a refusal or deliberate omission to afford access to opportunities for promotion or transfer to or training for such employment; and
(c)Article 8(2)(b) does not apply to dismissing an employee from, or otherwise not allowing him to continue in, such employment.
(2) Subject to paragraph (3), there is a supplementary genuine occupational qualification for a job only if—
(a)the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers;
(b)the job is likely to involve the holder of the job doing his work, or living, in a private home and needs to be held otherwise than by a person who is undergoing or has undergone gender reassignment, because objection might reasonably be taken to allowing to such a person—
(i)the degree of physical or social contact with a person living in the home, or
(ii)the knowledge of intimate details of such a person’s life,
which is likely, because of the nature or circumstances of the job or of the home, to be allowed to, or available to, the holder of the job;
(c)the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in premises provided by the employer, and—
(i)the only such premises which are available for persons holding that kind of job are such that reasonable objection could be taken, for the purpose of preserving decency and privacy, to the holder of the job sharing accommodation and facilities with either sex whilst undergoing gender reassignment, and
(ii)it is not reasonable to expect the employer either to equip those premises with suitable accommodation or to make alternative arrangements; or
(d)the holder of the job provides vulnerable individuals with personal services promoting their welfare, or similar personal services, and in the reasonable view of the employer those services cannot be effectively provided by a person whilst that person is undergoing gender reassignment.
(3) Sub-paragraphs (c) and (d) of paragraph (2) apply only in relation to discrimination against a person who—
(a)intends to undergo gender reassignment; or
(b)is undergoing gender reassignment.”.
(2) In Article 12 of the Order (discrimination against contract workers), in paragraph (3) at the beginning there shall be inserted the words “Subject to paragraph (3A),”.
(3) After that paragraph there shall be inserted the following paragraphs—
“(3A) Paragraph (3) does not apply in relation to discrimination falling within Article 4A.
(3B) In relation to discrimination falling within Article 4A, the principal does not contravene paragraph (2)(a), (b), (c) or (d) by doing any act in relation to a woman if—
(a)he does it at a time when, if the work were to be done by a person taken into his employment—
(i)being a man would be a genuine occupational qualification for the job; or
(ii)being a woman would be a genuine occupational qualification for the job; and
(b)he can show that the act is reasonable in view of the circumstances relevant for the purposes of sub-paragraph (a) and any other relevant circumstances.
(3C) In relation to discrimination falling within Article 4A, the principal does not contravene paragraph (2)(b) by doing any act in relation to a woman at a time when, if the work were to be done by a person taken into his employment, there would be a supplementary genuine occupational qualification for the job.”.
(4) In Article 14 of the Order (partnerships), in paragraph (3) at the beginning there shall be inserted the words “Subject to paragraph (3A),”.
(5) After that paragraph there shall be inserted the following paragraphs—
“(3A) Paragraph (3) does not apply in relation to discrimination falling within Article 4A.
(3B) In relation to discrimination falling within Article 4A, paragraph (1) does not make unlawful a firm’s treatment of a person in relation to a position as partner where—
(a)if it were employment—
(i)being a man would be a genuine occupational qualification for the job; or
(ii)being a woman would be a genuine occupational qualification for the job; and
(b)the firm can show that the treatment is reasonable in view of the circumstances relevant for the purposes of sub-paragraph (a) and any other relevant circumstances.
(3C) In relation to discrimination falling within Article 4A, paragraph (1)(a), (c) and, so far as it relates to expulsion, (d)(ii) do not apply to a position as partner where, if it were employment, there would be a supplementary genuine occupational qualification for the job.”.
(6) In Article 2(2) of the Order (interpretation) in the definition of “genuine occupational qualification” at the end there shall be inserted the words “, except in the expression “supplementary genuine occupational qualification”, which shall be construed in accordance with Article 10B(2);”.