Women-only jobs cannot be open to men who self-identify as the opposite sex, Britain’s equalities watchdog has warned bosses.
New guidance from the Equality and Human Rights Commission (EHRC) tells employers they can specify that applicants have to be female if there is a ‘legitimate aim’.
A recruitment ad for an attendant in a female changing room could be restricted to women, for instance, as a proportionate and justifiable way of ‘protecting the privacy and dignity’ of those undressing there.
The rules made clear that under the Equality Act, ‘occupational requirements’ for some roles can ‘exclude transgender persons’ if it is ‘objectively justified’.
And it said that job ads for female candidates ‘cannot include transgender women who have not obtained’ a Gender Recognition Certificate – changing their legal sex from male to female – as they ‘do not have legal status as women under the Equality Act 2010’.
The EHRC said it was publishing the guidelines on Tuesday because it had seen evidence that ‘some employers have incorrectly applied occupational requirement exceptions’ – and warned it could take action against job ads that break the Equality Act.
Its chairman Baroness Falkner said: ‘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.’
The new guidance was welcomed by women’s rights groups.
But they also want the government to go further and amend the Equality Act so that it defines sex as biological sex, which would exclude transgender women with GRCs from women-only spaces.
Such a move was recommended by the EHRC last year and the Conservatives vowed to introduce it if they won the election.
But Sir Keir Starmer said during the campaign that it was not necessary – even though he eventually agreed that transgender women do not have the right to access female-only spaces – and Labour wants to make it easier for transgender people to obtain GRCs.
Maya Forstater of charity Sex Matters said: ‘We welcome this long overdue guidance from the EHRC which sets out that self-ID is not the law.
‘Women’s rights campaigners have been complaining to the EHRC for years about ads for female-only jobs and services that say they will accept men who identify as women.’
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She added: ‘The EHRC could be even clearer with its guidance. ‘Adverts’ include signs and symbols in everyday language.
‘Employers can only restrict a service or a job to women with good reason, and it is never appropriate for men to try to access these services, regardless of how they dress, or whether they have a piece of paper claiming they’re women.’
Nicola Williams of Fair Play for Women said: ‘We welcome this new guidance that makes clear men who self-identity as women are not female and should not be recruited as such.
‘We have been reporting rogue employers who misuse the law by advertising for ‘self-identifying women’ to fill women-only roles. That means males doing jobs reserved for females.
‘That is unfair on the women who apply and the people who rely on a woman being in that role for reasons of privacy, dignity and safety.’