Public authorities may wish to take the need to have due regard to the need to eliminate gender reassignment discrimination and harassment into account when discharging their gender equality duty in relation to the provision of goods and services, before they are required to do so following the implementation of the Goods and Services Directive.
What does the general duty mean? Due regard, proportionality and relevance
S76A SDA (margin note)
Public authorities will be expected to have due regard to the need to eliminate unlawful discrimination and harassment and promote equality of opportunity between women and men in relation to all their functions and to provide evidence that they have done so. This includes their core functions of policy development, service design and delivery, decision-making and employment, the exercise of statutory discretion, enforcement and any services and functions which have been contracted out. For details on contracted-out services see Chapter 5 on procurement.
Having due regard means that the weight given to the need to promote gender equality is proportionate to its relevance to a particular function. In practice, this principle will mean public authorities should prioritise action to address the most significant gender inequalities within their remit, and take actions which are likely to deliver the best gender equality outcomes. This is likely to mean focussing on functions or policies that have most effect on the public, or on the authority’s employees, or on a section of the public or on a section of the authority's employees. The authority should ask whether particular functions could affect women and men in different ways, and whether functions can be carried out in a way which promotes equality of opportunity between men and women.
The general duty applies to public authorities whatever their size, but the way in which it is implemented should be appropriate to the size of the authority and its functions. For example, a primary school may wish to train its staff in gender equality in order to meet the duty, but does not have sufficient budget to meet this training need alongside other competing needs. It decides to meet the duty by arranging gender equality training for the head teacher, who then runs a feedback session for staff and governors at the next in-service training day. This could be a proportionate means of meeting the duty.
Gender equality will be more relevant to some functions than others. Relevance is about how much a function affects people's gender equality, as members of the public or as employees of the authority. For example, a school may decide that gender equality is more relevant to the way that it designs its teaching methods than to its building maintenance work. Public authorities should therefore assess whether, and how, gender equality is relevant to each of their functions. A public authority may decide that little or no action is required to discharge the gender equality duty in some of its services, for example those which are purely technical, such as traffic control or weather forecasting. Gender equality will always be relevant, however, to the employment side of any of a public authority's functions.
The requirement for proportionality and relevance should not be interpreted, however, as a simple question of the numbers of people affected. Public authorities should also take into account the seriousness or extent of the discrimination, harassment or gender inequality, even if the number of people affected is small. This would often be the case