Gender Equality in UK Law

It is perfectly sensible for the government to wait until policy has been adequately formulated for there to be a clear basis upon which its gender equality impact can be assessed. The point at which that is reached is in my judgment very much a question of rationality not of duty. The judgment of whether it has reached that position is in my judgment clearly a matter for rationality and there is no prospect of the government's assessment that it is sensible to wait being shown to be unlawful.

This is because, as I see it, cases of direct discrimination under section 1(1)( a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex?

What, in fact, has happened in this case is that the decision-maker has taken a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact.

Whilst I accept Mr Pointer's submission that the judge has a duty to assess each and every one of the section 25(2) criteria that bear on outcome and equally that judges of the Family Division have great expertise in making value judgments, I do not accept that the duty requires a detailed critical appraisal of the performance of each of the parties during the marriage.

This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.

Secondly, the “due regard” duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question.

But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified.