The duty on public authorities to have due regard to the need to promote equality of opportunity between men and women is a new aspect of the SDA. In order to achieve actual equality of opportunity, it is necessary to recognise that in certain circumstances women and men, because of their sex or gender roles, are not in the same position. In some circumstances it may therefore be appropriate for public authorities to treat women and men differently, if that action is aimed at overcoming previous disadvantage.
For example, where one sex is under-represented in particular work, a public authority could promote equality of opportunity by taking positive action to encourage members of the under-represented sex to apply for such work, or to provide training to equip the under-represented sex for such work. It would not, however, be lawful to discriminate in favour of one sex in the actual appointments procedure. See Chapter 6 for more detail.
As another example, women make up the substantial majority of victims of domestic violence and rape. It would not be appropriate, therefore, for a local council to seek to fund refuge services on a numerically equal basis for men and for women. The promotion of equal opportunities between men and women requires public authorities to recognise that the two groups are not starting from an equal footing and identical treatment would not be appropriate.
In some instances, promoting equality of opportunity may require separate provision to be offered, as an alternative approach to improve take-up of services by the under-represented sex, where this is permitted under the SDA. An example of this might be to encourage men to increase their low take-up of primary health care services. For more detail, see Chapter 6 on single-sex activities.
The gender equality duty and gender reassignment
The gender equality duty requires public authorities to have due regard to the need to eliminate unlawful discrimination and harassment against transsexual people in the fields of employment and vocational training (including further and higher education). This section gives further details on issues relating to the gender duty and gender reassignment.
S2A SDA (margin note)
The SDA provides that people who intend to undergo, are undergoing or have undergone gender reassignment are protected against discrimination and harassment in the fields of employment and related areas and in vocational training (including further and higher education). This means that public authorities must have due regard to the need to eliminate unlawful discrimination and harassment in those fields against transsexual people when discharging their gender duty.
The scope of legal protection against discrimination on grounds of gender reassignment will be extended in the SDA, by 21 December 2007, by the implementation of the Goods and Services Directive 2004/113. As a matter of domestic law, as a consequence, by that date (or the date of implementation if earlier), public authorities will be under a duty to have due regard to the need to eliminate unlawful discrimination and harassment on grounds of gender reassignment in the provision of goods and services.