Sexual Discrimination – July 2017


Prior to April 2007, sex discrimination law in England and Wales was based on various items of primary legislation and statutory instruments, and a range of guidance documents. The primary legislation included the Equal Pay Act 1970 (EP 1970), the Sex Discrimination Act 1975 (SDA 1975), both as developed by case law and regulations, and the Equality Act 2006 (EA 2006) which came into force in April 2007. The SDA 1975 had been amended in certain respects in September 1986 (SDA 1986) following a European Court of Justice (ECJ) decision earlier that year in the Marshall case on the unequal compulsory retirement ages previously allowed for men and women. Allowable sex discrimination (or ‘positive action’) in training opportunities and in employment advertisements was confirmed at the same time.

The subsequent Equality Act 2010 (EA 2010) repealed the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the Sex Discrimination Act 1986. The SDA 1975 had covered essentially discrimination in employment, education and the provision of goods, facilities and services to the public. It largely excluded other areas including other legislation which conflicts. The EA 2006 introduced a ‘gender equality’ provision and set up a new Equality and Human Rights Commission (EHRC), in place of the three previous commissions on Equal Opportunities, Racial Equality, and Disability Rights. The new Act imposed a more rigorous obligation on public authorities, and all organisations and private companies which work for them, to eliminate unlawful discrimination and harassment, and to promote equality of opportunity between men and women.

The Human Rights Act 1998 prescribes certain rights pertaining to the liberty of a person, including a fair hearing of any civil or criminal charges, presumption of innocence until proven guilty, and non-discrimination on any ground in the enjoyment of such rights.

New Code of Practice:

In the wake of the EA 2006, the EOC produced a Code of Practice for the new ‘Gender Equality Duty’ under the Act, also to apply from April 2007. The Code is admissible as evidence in criminal or civil proceedings and can be taken into account if relevant when determining a case. The Code allows public service provision to take into account “the different needs of men and women” (as well as their ‘differences’) a flexibility which, without strict control, can be exploited unfairly. The EA 2010 introduced a new over-arching ‘Public Sector Equality Duty’, which can permit the unequal treatment of like persons similarly affected if they do not share the same protected characteristic. The Duty requires public authorities, in the exercise of their functions, and amongst other aims, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. Sub-section (6) of the Act indeed admits that compliance with the duties in this section may involve some persons being more favourably treated than others.

Statutory sex discrimination arises where one sex is specifically treated by law differently from the other. For instance, in protective legislation where women are barred from working manually in mines. However, it still also applies in other areas, such as child benefit provisions, where the main title is to the mother (unless she waives it in writing) and there is no provision to apportion the benefit when separated parents both care for the children. This is a direct discrimination.

Non-statutory sex discrimination arises where the law is sex neutral but the sexes are treated differently for particular reasons, for instance as a result of political or priority considerations, this resulting in one sex being treated less favourably than the other, regardless of equality considerations.

Both direct and indirect forms can occur in both statutory and non-statutory measures. Unequal state pension ages for men and women, and the associated basket of social security benefits which are pension age-related, is a statutory direct form. Family law provisions and benefits which are gender neutral in terminology, but are likely to affect many more fathers less favourably than mothers, are a form of statutory indirect sex discrimination. For instance, when determining child support payments by the non-resident parent (usually the father), the income of the resident parent (usually the mother) is not taken into account at all.

Minimal public funding for male victims of domestic violence: government funding to local authorities in respect of domestic violence is essentially to help female victims [see Male Victims of Domestic Abuse] with relatively few authorities providing even emergency accommodation for male victims and almost none refuge or safe-house provision.

Gender conflict issues:

In gender conflict issues, such as family breakdown, sex offences, harassment and domestic violence, there appears to be a disturbing trend, both in legislation and the criminal justice system, towards a form of feminist jurisprudence, now already well established in North America. Indeed as one English woman journalist has put it, in such matters “the state is taking the side of women against men”.

Increasing imbalance:

The present imbalance between equitable and effective reconciliation of men’s and women’s issues, must either be addressed by extending the ministerial brief of present equality ministers specifically to represent both sexes, or by fielding key ministers and spokespersons on behalf of both sexes. Otherwise, generally, men will be increasingly marginalised.

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