Protected characteristics

The protected characteristics for the schools provisions are:

  • Disability.
  • Gender reassignment. 
  • Pregnancy and maternity.
  • Race.
  • Religion or belief. 
  • Sex.
  • Sexual orientation.

Age and marriage and civil partnership are NOT protected characteristics for the schools provisions.  

Disability

A person is a disabled person (someone who has the protected characteristic of disability) if they have a physical and/or mental impairment which has what the law calls ‘a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.

There is no need for a person to have a medically diagnosed cause for their impairment; what matters is the effect of the impairment not the cause.

In relation to physical impairment:

  • Conditions that affect the body such as arthritis, hearing or sight impairment (unless this is correctable by glasses or contact lenses), diabetes, asthma, epilepsy, conditions such as HIV infection, cancer and multiple sclerosis, as well as loss of limbs or the use of limbs are covered.  
  • HIV infection, cancer and multiple sclerosis are covered from the point of diagnosis.  
  • Severe disfigurement (such as scarring) is covered even if it has no physical impact on the person with the disfigurement, provided the long-term requirement is met (see below).  
  • People who are registered as blind or partially sighted, or who are certified as being blind or partially sighted by a consultant ophthalmologist, are automatically treated as disabled under the Act.

Mental impairment includes conditions such as dyslexia and autism as well as learning disabilities such as Down’s syndrome and mental health conditions such as depression and schizophrenia. The other tests to apply to decide if someone has the protected characteristic of disability are:

  • The length the effect of the condition has lasted or will continue: it must be long term. ‘Long term’ means that an impairment is likely to last for the rest of the person’s life, or has lasted at least 12 months or where the total period for which it lasts is likely to be at least 12 months. If the person no longer has the condition but it is likely to recur or if the person no longer has the condition, they will be considered to be a disabled person.  
  • Whether the effect of the impairment is to make it more difficult and/or time-consuming for a person to carry out an activity compared to someone who does not have the impairment, and this causes more than minor or trivial inconvenience.
  • If the activities that are made more difficult are ‘normal day-to-day activities’ at work or at home.  
  • Whether the condition has this impact without taking into account the effect of any medication the person is taking or any aids or assistance or adaptations they have, like a wheelchair, walking stick, assistance dog or special software on their computer. The exception to this is the wearing of glasses or contact lenses where it is the effect while the person is wearing the glasses or contact lenses, which is taken into account.  

For example:

Someone who has ADHD might be considered to have a disability even if their medication controls their condition so well that they rarely experience any symptoms, if without the medication the ADHD would have long-term adverse effects. Progressive conditions and those with fluctuating or recurring effects are included, such as depression, provided they meet the test of having a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

Gender reassignment

Gender reassignment is a personal process (rather than a medical process) which involves a person expressing their gender in a way that differs from or is inconsistent with the physical sex they were born with.  

This personal process may include undergoing medical procedures or, as is more likely for school pupils, it may simply include choosing to dress in a different way as part of the personal process of change.

A person will be protected because of gender reassignment where they:

  • make their intention known to someone – it does not matter who this is, whether it is someone at school or at home or someone like a doctor:  
    • once they have proposed to undergo gender reassignment they are protected, even if they take no further steps or they decide to stop later on  
    • they do not have to have reached an irrevocable decision that they will undergo gender reassignment, but as soon as there is a manifestation of this intention they are protected  
  • start or continue to dress, behave or live (full-time or part-time) according to the gender they identify with as a person  
  • undergo treatment related to gender reassignment, such as surgery or hormone therapy, or  
  • have received gender recognition under the Gender Recognition Act 2004.

It does not matter which of these applies to a person for them to be protected because of the characteristic of gender reassignment.

This guidance uses the term ‘transsexual person’ to refer to someone who has the protected characteristic of gender reassignment.

Pregnancy and maternity

The Act lists pregnancy and maternity as a protected characteristic. Pregnancy and maternity discrimination is covered in Key concepts
 

Race

Race means a person’s:

  • colour, and/or
  • nationality (including citizenship), and/or
  • ethnic or national origin

and a racial group is composed of people who have or share a colour, nationality or ethic or national origins.

A person has the protected characteristic of race if they belong to a particular racial group, such as ‘British people’.

Racial groups can comprise two or more racial groups such as ‘British Asians’.
 

Religion or belief

The protected characteristic of religion or belief includes any religion and any religious or philosophical belief. It also includes a lack of any such religion or belief.

A religion need not be mainstream or well known to gain protection as a religion. It must, though, be identifiable and have a clear structure and belief system. Denominations or sects within religions may be considered a religion. Cults and new religious movements may also be considered religions or beliefs.

Belief means any religious or philosophical belief and includes a lack of belief.

‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to person within the same religion.

A belief which is not a religious belief may be a philosophical belief, such as humanism or atheism.

A belief need not include faith or worship of a god or gods, but must affect how a person lives their life or perceives the world.

For a belief to be protected by the Equality Act:

  • It must be genuinely held.
  • It must be a belief and not an opinion or viewpoint based on information available at the moment.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion and importance.
  • It must be worthy of respect in a democratic society.
  • It must be compatible with human dignity and not conflict with the fundamental rights of others.

Sex

A person’s sex refers to the fact that they are male or female. In relation to a group of people, it refers to either men or women or to either boys or girls.
 

Sexual orientation

Sexual orientation means the attraction a person feels towards one sex or another (or both), which determines who they form intimate relationships with or are attracted to.

  • Some people are only attracted to those of the same sex (lesbian women and gay men).
  • Some people are attracted to people of both sexes (bisexual people).
  • Some people are only attracted to the opposite sex (heterosexual people).

Everyone is protected from being treated worse because of sexual orientation, whether they are bisexual, gay, lesbian or heterosexual.

Sexual orientation discrimination also covers discrimination connected with manifestations of that sexual orientation.
 

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