Protected characteristics
Sunday, 3 October 2021 18:10
Section 4 of the Equality Act 2010 lists protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
(EU law includes gender reassignment and pregnancy under the singular term 'sex')
Gender reassignment:
- The Gender Recognition Act 2004 allows a person to obtain a birth certificate in their acquired
gender (rather than their birth gender)
- The Equality Act 2010, Section 7(1) provides:
○ 'A person has the protected characteristic of gender reassignment if the person is
proposing to undergo, is undergoing or has undergone a process (or part of a process)
for the purpose of reassigning the person's sex by changing physiological or other
attributes of sex.'
Race:
- The Equality Act 2010, Section 9(1) provides:
○ 'Race' includes colour, nationality, and ethnic or national origins
- Race is a cultural, rather than scientific expression
- Recital (6) to the Race Directive's (2000/43/EC) preamble states:
○ 'The European Union rejects theories which attempt to determine the existence of
separate human races. The use of the term 'racial origin' in this Directive does not imply
an acceptance of such theories.'
- Ealing LBC v CRE [1972] AC 342 (HL) 362 (Lord Simon):
○ '…"racial" is not a term or art, either legal or … scientific. I apprehend that
anthropologists would dispute how far the word 'race' is biologically at all relevant to
the species amusingly called homo sapiens.'
'Ethnic origins'
- Sub-category of race
- Mandla v Dowell Lee [1983] AC 548 (HL) 562 (Lord Fraser):
○ Essential characteristics: 1) A long shared history, of which the group is conscious as
distinguishing it from other groups, and the memory of which it keeps alive; 2) A cultural
tradition of its own, including family and social customs and manners, often but not
necessarily associated with religious observance.
○ Relevant characteristics: 1) either a common geographical origin, or descent from a
small number of common ancestors; 2) a common language, not necessarily peculiar to
the group; 3) a common literature peculiar to the group; 4) a common religion different
from that of the neighbouring groups or from the general community surrounding it; 5)
being a minority or being an oppressed or a dominant group within a larger community
Overlapping characteristics:
- Section 9(4) of the Equality Act 2010:
○ 'The fact that a racial group comprises two or more distinct racial groups does not
prevent it from constituting a particular racial group.'
- R (A) v Governing Body of JFS [2010] 2 AC 728 (SC)
a. There can be sub-groups of a racial group
Equality Law Page 1
Sunday, 3 October 2021 18:10
Section 4 of the Equality Act 2010 lists protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
(EU law includes gender reassignment and pregnancy under the singular term 'sex')
Gender reassignment:
- The Gender Recognition Act 2004 allows a person to obtain a birth certificate in their acquired
gender (rather than their birth gender)
- The Equality Act 2010, Section 7(1) provides:
○ 'A person has the protected characteristic of gender reassignment if the person is
proposing to undergo, is undergoing or has undergone a process (or part of a process)
for the purpose of reassigning the person's sex by changing physiological or other
attributes of sex.'
Race:
- The Equality Act 2010, Section 9(1) provides:
○ 'Race' includes colour, nationality, and ethnic or national origins
- Race is a cultural, rather than scientific expression
- Recital (6) to the Race Directive's (2000/43/EC) preamble states:
○ 'The European Union rejects theories which attempt to determine the existence of
separate human races. The use of the term 'racial origin' in this Directive does not imply
an acceptance of such theories.'
- Ealing LBC v CRE [1972] AC 342 (HL) 362 (Lord Simon):
○ '…"racial" is not a term or art, either legal or … scientific. I apprehend that
anthropologists would dispute how far the word 'race' is biologically at all relevant to
the species amusingly called homo sapiens.'
'Ethnic origins'
- Sub-category of race
- Mandla v Dowell Lee [1983] AC 548 (HL) 562 (Lord Fraser):
○ Essential characteristics: 1) A long shared history, of which the group is conscious as
distinguishing it from other groups, and the memory of which it keeps alive; 2) A cultural
tradition of its own, including family and social customs and manners, often but not
necessarily associated with religious observance.
○ Relevant characteristics: 1) either a common geographical origin, or descent from a
small number of common ancestors; 2) a common language, not necessarily peculiar to
the group; 3) a common literature peculiar to the group; 4) a common religion different
from that of the neighbouring groups or from the general community surrounding it; 5)
being a minority or being an oppressed or a dominant group within a larger community
Overlapping characteristics:
- Section 9(4) of the Equality Act 2010:
○ 'The fact that a racial group comprises two or more distinct racial groups does not
prevent it from constituting a particular racial group.'
- R (A) v Governing Body of JFS [2010] 2 AC 728 (SC)
a. There can be sub-groups of a racial group
Equality Law Page 1
