In brief
As a spin-off of the project on Diversity Recognition, I started researching discrimination as a topic as well.
The currently dominant approach to discrimination is the grounds-based approach, according to which discrimination on the basis of certain protected characteristics (such as sex, race, age, ...) is prohibited. I argue that this approach is inappropriate and should be replaced by an understanding of anti-discrimination which returns to its most fundamental goal - that is, to protect the moral equality of persons.
All instances of unfair treatment due to an arbitrary characteristic, attribute or identity should at least presumptively be considered as discrimination because they violate the moral equality of persons (by ‘arbitrary,’ I mean ‘not relevant to the matter at hand’). This is a fundamentally different, but more inclusive and accurate approach, I argue, which will require reform of equality and policy laws.
In this context, especially the UK's 2010 Equality Act has tested my patience for being discriminatory in itself. I have written the text below as a first expression of these ideas, which need much further research, to be fair.
Moral equality in the UK 2010 Equality Act?
The common understanding of equality and anti-discrimination is based on a grounds-based approach: people should be protected against unfair treatment because of certain specified personal attributes or identities. For example, the UK’s 2010 Equality Act (EA for short) defines nine protected characteristics:
Surprisingly, even critical reports (such as these reports by Don’t Divide Us and Policy Exchange) advocating reform of the EA, do not challenge the grounds-based approach at its foundation. This is even more remarkable since the EA also forms the basis of many practical Diversity and Inclusion policies, including the Public Sector Equality Duty requiring public authorities to have due regard to considerations of equality.
Recently, Reform UK has proposed to scrap the EA and Conservative leader Kemi Badenoch advocates abolishing the Public Sector Equality Duty. Many have argued that this will fuel discrimination, and I agree. I will actually suggest to make it more robust by replacing the grounds-based approach by an approach based on the moral equality of all persons as the leading principle for reform.
I would like to give some examples to illustrate some striking problems faced by the EA specifically and the grounds-based approaches in general. I hope to continue building this with the addition of other characteristics and arguments. After that, I will discuss my proposal for reform.
- Age;
- Disability;
- Gender reassignment;
- Marriage and civil partnership;
- Pregnancy and maternity;
- Race;
- Religion or belief;
- Sex; and
- Sexual orientation.
Surprisingly, even critical reports (such as these reports by Don’t Divide Us and Policy Exchange) advocating reform of the EA, do not challenge the grounds-based approach at its foundation. This is even more remarkable since the EA also forms the basis of many practical Diversity and Inclusion policies, including the Public Sector Equality Duty requiring public authorities to have due regard to considerations of equality.
Recently, Reform UK has proposed to scrap the EA and Conservative leader Kemi Badenoch advocates abolishing the Public Sector Equality Duty. Many have argued that this will fuel discrimination, and I agree. I will actually suggest to make it more robust by replacing the grounds-based approach by an approach based on the moral equality of all persons as the leading principle for reform.
I would like to give some examples to illustrate some striking problems faced by the EA specifically and the grounds-based approaches in general. I hope to continue building this with the addition of other characteristics and arguments. After that, I will discuss my proposal for reform.
Marriage and civil partnership
The EA protects people who are married or civil partners from discrimination on that basis. For example, preventing married women from working night shifts because the employer thinks they should be at home in the evening is discriminatory. It is of course important to fight against such instances of discrimination, but it also means that single people cannot appeal to the EA in case they are unfairly treated on the basis of their unpartnered status.
Singlism – discrimination on the basis of not being married or having a partner – is rather ubiquitous. On the rental market, couples are often favoured over singles; employers expect more flexibility from singles than from employees with a family; and while life in general is more expensive for singles, it is married or partnered people who enjoy tax benefits in many countries.
All of these are consequences of the widespread assumption that a romantic partnership is a universal human goal and one of the main organising norms of society. On this assumption, termed amatonormativity by Elizabeth Brake, being single – whether voluntarily or involuntarily – is at best seen as a temporary stage in one’s life and as a failure, at worst. This deeply embedded attitude structurally disadvantages unpartnered people, but to add insult to injury, stereotyping and stigmatising singles is often perceived as unproblematic, especially in comparison to discrimination against other stigmatized groups, and singles are often unaware of their disadvantages.
A second group of people in this area neglected by the EA are people in polyamorous or other types of consensual non-monogamous (CNM) relationships. Such relationships are not legally recognised as marriage or partnership, limiting the scope of the 2010 EA on the dimension of this protected characteristic to monogamous relationships only. However, multiple studies consistently demonstrate a stigma surrounding CNM and a halo effect surrounding monogamy, with polyamorous people in particular experiencing stigmatisation, discrimination, harassment and violence due to their relational practices. By only including (legally recognised) marriage and civil partnership, the EA de facto affirms monogamy as the only privileged form of consensual relationships, which has been coined monogamism by Eric Anderson.
Singlism – discrimination on the basis of not being married or having a partner – is rather ubiquitous. On the rental market, couples are often favoured over singles; employers expect more flexibility from singles than from employees with a family; and while life in general is more expensive for singles, it is married or partnered people who enjoy tax benefits in many countries.
All of these are consequences of the widespread assumption that a romantic partnership is a universal human goal and one of the main organising norms of society. On this assumption, termed amatonormativity by Elizabeth Brake, being single – whether voluntarily or involuntarily – is at best seen as a temporary stage in one’s life and as a failure, at worst. This deeply embedded attitude structurally disadvantages unpartnered people, but to add insult to injury, stereotyping and stigmatising singles is often perceived as unproblematic, especially in comparison to discrimination against other stigmatized groups, and singles are often unaware of their disadvantages.
A second group of people in this area neglected by the EA are people in polyamorous or other types of consensual non-monogamous (CNM) relationships. Such relationships are not legally recognised as marriage or partnership, limiting the scope of the 2010 EA on the dimension of this protected characteristic to monogamous relationships only. However, multiple studies consistently demonstrate a stigma surrounding CNM and a halo effect surrounding monogamy, with polyamorous people in particular experiencing stigmatisation, discrimination, harassment and violence due to their relational practices. By only including (legally recognised) marriage and civil partnership, the EA de facto affirms monogamy as the only privileged form of consensual relationships, which has been coined monogamism by Eric Anderson.
AGE
The protected characteristic of age refers to a particular age or to a range of ages, but does not further specify this. However, in reality, ageism – discrimination on the basis of age – has predominantly been considered to apply to older people, with discrimination of young people being discussed significantly less. For example, the Equality Office’s guidance leaflet refers to Age UK for more information. Age UK is one of the main charities in the UK fighting ageism, but it focuses solely on the discrimination of older people. Moreover, some of the most important legal cases in the UK regarding ageism (such as Homer v Chief Constable of West Yorkshire Politics (UKSC 15) and Seldon v Clarkson Wrigt and Jakes (UKSC 16)) concern workplace discrimination of older people.
Discrimination against elderly people is of course an important problem and quite pervasive in society, but I would argue that discrimination of young people is widely underestimated and downplayed. For example, in Lockwood v Department of Work and Pensions & Anor (EWCA Civ 1195), another key UK case regarding ageism, the Court of Appeal held that the discrimination of a young employ (receiving half of the redundancy payment of older employees with identical length of service) was objectively justified based on the expectation that younger people can react more easily and more rapidly to the loss of their jobs, and the greater flexibility that can be expected of younger people in view of their lesser family and financial obligations.
In addition, young people remain remarkably underrepresented in parliaments around the globe and young MPs report that they experience having less influence in parliament due to their age. Youth are marginalised in the public and political debate because there are intense discussions about, rather than with them. Moreover, young people may be discriminated against on the labour market due to the lack of experience and young parents experience discrimination in their encounters with welfare services.
The discrimination of young people seems pervasive. “Maturity” is often seen as a virtue versus the “immaturity” of youth and the perception of (lack of) experience or competence is often based on age-related prejudices rather than objective facts. Nonetheless, discrimination of young people has received much less attention in the public debate than discrimination of older people.
Discrimination against elderly people is of course an important problem and quite pervasive in society, but I would argue that discrimination of young people is widely underestimated and downplayed. For example, in Lockwood v Department of Work and Pensions & Anor (EWCA Civ 1195), another key UK case regarding ageism, the Court of Appeal held that the discrimination of a young employ (receiving half of the redundancy payment of older employees with identical length of service) was objectively justified based on the expectation that younger people can react more easily and more rapidly to the loss of their jobs, and the greater flexibility that can be expected of younger people in view of their lesser family and financial obligations.
In addition, young people remain remarkably underrepresented in parliaments around the globe and young MPs report that they experience having less influence in parliament due to their age. Youth are marginalised in the public and political debate because there are intense discussions about, rather than with them. Moreover, young people may be discriminated against on the labour market due to the lack of experience and young parents experience discrimination in their encounters with welfare services.
The discrimination of young people seems pervasive. “Maturity” is often seen as a virtue versus the “immaturity” of youth and the perception of (lack of) experience or competence is often based on age-related prejudices rather than objective facts. Nonetheless, discrimination of young people has received much less attention in the public debate than discrimination of older people.
SEX AND SEXUAL ORIENTATION
The EA interprets sex as the protected characteristic of being a man or a woman [sic]. In a 2025 decision, the UK Supreme Court affirmed sex as a binary category which should be interpreted as ‘biological sex’ – one’s sex as recorded at birth. This binary approach is extended to sexual orientation: for the EA, the options are attraction towards persons of the same sex, persons of the opposite sex, or persons of either sex.
In this way, the EA ignores the existence of people with intersex variations, and the 2025 Supreme Court decision is generally considered to be a set-back for transpeople.* On the dimension of sexual orientation, the EA denies the vastly more complex variations, including pansexuality, polysexuality and the spectrum of asexuality.
On top of this, many instances of discrimination do not relate to biological sex, but rather to presumptions regarding gender roles, prejudices towards gender identities and biases against certain gender expressions. Transgender and gender nonconforming people are subject to frequent and intense gender-related discrimination, stigma, rejection and violence, which lead to psychological distress and impacts their mental health. Yet, the EA does not provide any recourse due to its reductive binary approach and focus on biological sex (aka. cisgenderism).
Due to the conservative, binary approach to sex, gender and sexual orientation the EA does not offer protection to some of the most vulnerable and stigmatised people: intersex, trans, and gendernonconforming people.
* The Supreme Court (2025, paras. 248–263 & 265(xvii)) argues that the ‘biological sex’ reading does not cause disadvantage to trans people because they have the protected characteristic of gender reassignment and are also protected from discrimination based on being perceived as or associated with a sex which differed from their biological sex. However, it does exclude trans people from using single or separate sex spaces, facilities and services on the basis of the sex they identify with, despite research finding that fears of increased safety and privacy violations in such spaces cited by opponents of trans-inclusivity is empirically unfounded.
In this way, the EA ignores the existence of people with intersex variations, and the 2025 Supreme Court decision is generally considered to be a set-back for transpeople.* On the dimension of sexual orientation, the EA denies the vastly more complex variations, including pansexuality, polysexuality and the spectrum of asexuality.
On top of this, many instances of discrimination do not relate to biological sex, but rather to presumptions regarding gender roles, prejudices towards gender identities and biases against certain gender expressions. Transgender and gender nonconforming people are subject to frequent and intense gender-related discrimination, stigma, rejection and violence, which lead to psychological distress and impacts their mental health. Yet, the EA does not provide any recourse due to its reductive binary approach and focus on biological sex (aka. cisgenderism).
Due to the conservative, binary approach to sex, gender and sexual orientation the EA does not offer protection to some of the most vulnerable and stigmatised people: intersex, trans, and gendernonconforming people.
* The Supreme Court (2025, paras. 248–263 & 265(xvii)) argues that the ‘biological sex’ reading does not cause disadvantage to trans people because they have the protected characteristic of gender reassignment and are also protected from discrimination based on being perceived as or associated with a sex which differed from their biological sex. However, it does exclude trans people from using single or separate sex spaces, facilities and services on the basis of the sex they identify with, despite research finding that fears of increased safety and privacy violations in such spaces cited by opponents of trans-inclusivity is empirically unfounded.
Some further problems
It is bitter irony that the EA and the discourse regarding discrimination on its basis excludes some vulnerable people (including single and young people) from protection against discrimination. Moreover, there are a lot of highly salient characteristics that are not included in the list, such as caring responsibilities, parental status (both parents and childless people experience discrimination and stereotyping), physical appearance, etcetera. Socioeconomic status is omitted as well, even though it is highly determinative of people’s lives.
Yet another problem is formed by exceptions – legitimate instances of discriminatory practices – on all protected characteristics, such as affirmative action in recruitment, age-related holidays, or the exclusion of wheelchair users from certain jobs due to specific physical requirements. The grounds-based approach remains ambiguous as to when such exceptions are justified or not.
Reform?
Can the EA be extended to incorporate the currently omitted protected characteristics? Can we revise the interpretations and specifications of the protected characteristics to meet the problems above? Such reform will be necessary in view of the problems mentioned above if we would like to hold on to a grounds-based approach. However, this will never suffice: characteristics are fluid; there is a proliferation and fragmentarisation of identities; and there are multiple intersections of characteristics that may require a tailored approach.
In addition, a grounds-based approach creates a dynamic of Othering by reifying how people who share a protected characteristic deviate from the (unchallenged) norm of the dominant group. In general, the grounds-based approach almost inevitably reflects the perspective of the dominant social group about the relevance of certain characteristics, their specifications and interpretations as well as its willingness to make accommodations for those who deviate from the norm (rather than challenging the norm itself). We saw this exemplified above: amatonormativity and the subordinate position of young people are de facto consolidated in the EA, at the expense of single and young people. The EA’s definition of sex and the 2025 Supreme Court decision solidifies cisgenderism and heteronormativity in the law, excluding intersex, trans, and gender nonconforming people.
Rather than holding on to the grounds-based approach, reform of anti-discrimination laws and policies should return to their most fundamental goal – that is, to protect the moral equality of persons. All instances of unfair treatment due to an arbitrary characteristic, attribute or identity should at least presumptively be considered as discrimination because they violate the moral equality of persons (by ‘arbitrary,’ I mean ‘not relevant to the matter at hand’).
Anti-discrimination laws and policies designed on this basis do not a priori limit their scope to a number of characteristics and are therefore more consistent with the goal to protect the moral equality of all persons. Some may say that this is over-inclusive; according to them, discrimination law should be kept to tackle structural inequality. This may be easy to see in typical examples as race, sex or disability, but it seems less obvious in cases of singlism, ageism, and discrimination of nonbinary people. Nonetheless, to me these seem morally and socially salient instances of discrimination, irrespective of one’s view on structural inequality. Moreover, again, limiting the scope of anti-discrimination law is likely to reflect the majority’s view on what structural inequality is.
This also increases the burden of proof for claimants – yet another way in which well-intended anti-discrimination law may work to reify the societal hierarchies. If the relevant characteristic is not on the list, or not a typical example of structural inequality, claimants would first have to proof that this characteristic is worthy of protection, before they can actually challenge unfair treatment on its basis as discriminatory. In contrast, abandoning the grounds-based approach in favour of protecting the moral equality of all persons, claimants and activists no longer have to waste energy on the first step, but can focus on tackling the actual discriminatory practice.
Due to its wider, non-prejudiced scope, anti-discrimination law protecting the moral equality of all detaches itself from the current views of the majority on which forms of unfair treatment are worthy of consideration as discrimination. It communicates a robust vision of inclusivity that supports broad societal reform to tackle discrimination, stigmatisation and marginalisation, whatever ground it may be based on. Finally, the proposed approach has the flexibility to accommodate the complexity, fluidity, fragmentarisation and intersectionality of identities with which the more rigid grounds-based approach inherently has difficulties to cope.
