Surrogacy is a life-changing path to parenthood for many individuals and couples, including members of the LGBTQ+ community. In England and Wales, whilst surrogacy is legal, it is governed by complex laws.

What is Surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents). There are two types of surrogacy:

• Traditional (or ‘straight’) surrogacy: the surrogate uses her own egg, making her the genetic mother.
• Gestational (or ‘host’) surrogacy: the surrogate has no genetic link to the child; the embryo is created using the egg and sperm of the intended parents or donors.

Is Surrogacy Legal in England and Wales?

Yes, surrogacy is legal, but commercial surrogacy is not. This means:

• Surrogates cannot be paid for their services beyond reasonable expenses.
• It is illegal to advertise that you’re looking for a surrogate or willing to act as one (although nonprofit organisations may facilitate matches).
• Surrogacy agreements are not legally binding, even if both parties sign a written contract.

Surrogacy and LGBTQ+ Individuals: A Growing Path to Parenthood

The LGBTQ+ community is increasingly turning to surrogacy to build families, particularly:

• Same sex male couples may pursue gestational surrogacy with the assistance of an egg donor.
• Transgender individuals may use surrogacy when they are unable or choose not to carry a pregnancy themselves.

The law in England and Wales has evolved to recognise same-sex couples and individuals as legal parents, however, there are important steps to follow.

Legal Parenthood

One of the key legal hurdles in surrogacy is who is considered the legal parent(s) at birth.

At Birth:

• The surrogate is always the legal mother, regardless of genetics.
• If she is married or in a civil partnership, her spouse or civil partner is the second legal parent (unless they did not consent).
• This means the intended parents have no automatic parental rights at birth.

After Birth:

To become the child’s legal parents, the intended parents must apply for a Parental Order under the Human Fertilisation and Embryology Act 2008. To be eligible, the following criteria must be met:

• The child must be genetically related to at least one of the intended parents.
• The application must be made within six months of the child’s birth.
• The child must be living with the intended parents.
• The surrogate (and her spouse/civil partner, if applicable) must consent freely and fully after the birth.
• The intended parents must be either:
  • A married couple, civil partners, or living as partners (same-sex or opposite-sex), or
  • A single person (since changes to the law in 2019).

Once a parental order is granted, the intended parents become the legal parents, and the surrogate’s name is removed from the birth certificate.

Ongoing Legal Reform

The Law Commission of England and Wales published a 2023 report recommending a major overhaul of surrogacy law. Key proposals include:

• New Pathway to Parenthood: intended parents could be recognised as legal parents from birth, subject to pre-approval.
• Clearer rules on expenses, eligibility, and safeguarding.
• Continued prohibition of commercial surrogacy.

As of mid-2025, these proposals have not yet been enacted into law, but reform is likely in the coming years.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Pride Month is a time to celebrate diversity, honour the LGBTQ+ community, and reflect on the progress made toward equality. However, it also serves as a timely reminder that legal and cultural work still needs to be done, particularly in the workplace.

As employment lawyers, we regularly advise clients on navigating the Equality Act 2010 (Act) and the protection it affords against discrimination. Sexual orientation is one of the nine protected characteristics under the Act, yet individuals still face both overt and subtle forms of discrimination from exclusionary workplace cultures to more explicit forms of bias. In this article, we explore what the law says, how employers can stay compliant, and what practical steps an organisation can take to foster truly inclusive working environments.

Legal Framework

The Act forms the foundation of anti-discrimination law in the UK, which seeks to protect individuals from various forms of discriminatory treatment based on nine ‘protected characteristics’, one of which is sexual orientation.

The Protected Characteristic – Sexual Orientation

Sexual orientation is defined under the Act as a person’s sexual orientation towards:

1. Persons of the same sex;
2. Persons of the opposite sex; or
3. Persons of either sex.

Importantly, the Act protects all sexual orientations and applies not only to employees, but also to job applicants, workers, apprentices, shareholders, and certain self-employed individuals.

It is also important to note that sexual orientation discrimination does not require someone to actually have or be the sexual orientation that they are believed to have. The Act also protects people from discrimination based on:

• Perception: Believing someone has a particular sexual orientation, even if they do not.
• Association: Being connected to someone who is a particular sexual orientation, such as a colleague, friend, or family member.

Types of discrimination

There are four main types of discrimination which are applicable in respect of sexual orientation as a protected characteristic:

1. Direct Discrimination

Direct Discrimination occurs when someone is treated less favourably than another because of their sexual orientation.  For example, if an employee were refused a promotion because they have a same-sex partner, this could be direct sexual orientation discrimination.

2. Indirect Discrimination

This occurs when a provision, criterion or practice (PCP) (e.g. a company policy) applies to everyone but disadvantages people of a particular sexual orientation. For instance, requiring all employees to attend work drinks at a venue which is known for being unwelcoming to LGBTQ+ patrons could amount to indirect sexual orientation discrimination.

It is important to note that in respect of indirect discrimination, an employer may have a defence if they can show their actions were objectively justified. This is known as a ‘proportionate means of achieving a legitimate aim’, essentially, whether there was a genuine business need, and whether the PCP was reasonably necessary to meet that need.

3. Harassment

Harassment is unwanted conduct related to sexual orientation that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This can include jokes, innuendo, or repeated comments about someone’s sexuality as well as violence, or indeed, threats of violence.

4. Victimisation

Victimisation occurs when someone is treated unfairly because they have done, or are intending to do, what is known as a ‘protected act’.  This includes the following:

1. Bringing proceedings under the Act;
2. Giving evidence or information in connection with proceedings under the Act, whether or not the proceedings were brought by that individual;
3. Doing any other thing for the purpose of or in connection with the Act; or
4. Alleging that the discriminator or any other person has contravened the Act.

For example, an employee who supports a colleague’s grievance about homophobic bullying and is then denied a training opportunity as a result may be experiencing victimisation.

Employer Responsibilities

Employers have a legal duty to prevent discrimination in the workplace and can be held vicariously liable for acts of their employees, unless they can demonstrate that they took all reasonable steps to prevent such behaviour occurring.

Reasonable steps may include:

• Implementing strong anti-discrimination and equal opportunities policies within their staff handbooks.
• Conducting regular EDI (equality, diversity, and inclusion) training.
• Ensuring managers understand how to handle complaints appropriately.
• Encouraging an inclusive and respectful workplace culture.

Common Issues and Practical Challenges

Even with robust policies in place, many LGBTQ+ employees face day-to-day challenges which may not meet the legal threshold for discrimination but still significantly impact their wellbeing. Common issues can include:

• Microaggressions: Subtle, often unintentional behaviours or comments that convey stereotypes or undermine an individual’s identity.
• A culture of ‘banter’: What some may consider harmless joking can amount to harassment if it targets or belittles someone’s sexual orientation.
• Outing – Disclosing someone’s sexuality without their consent may constitute harassment, as well as potentially causing significant distress to the individual, even if it was well-intentioned.

Fostering a Culture of Allyship and Inclusion

Legal compliance is the baseline, not the end goal. Creating a truly inclusive workplace will often mean going beyond the law. Employers can:

• Celebrate Pride Month meaningfully, not just performatively.
• Spotlight LGBTQ+ voices within the organisation.
• Support employee networks and mentoring schemes.
• Encourage inclusive language and behaviour.
• Review policies regularly with input from LGBTQ+ staff.
• Training should be ongoing, not one-off, and be inclusive of everyone from senior leadership to new joiners.

What does this mean for you and your business

Understanding your rights under the Act can be key to feeling safe, respected, and valued at work. If you’re an LGBTQ+ employee, or someone perceived to be, the law protects you from discrimination in all aspects of employment, from recruitment and promotions to everyday workplace interactions.

If you experience or witness behaviour that may amount to discrimination or harassment, you have the right to speak up, whether informally or formally, through internal procedures, or by seeking legal advice. Your employer is under a legal duty to take your concerns seriously and to prevent further harm.

Pride Month is an opportunity for reflection, education, and action. It reminds us that while legal protections are essential, culture change is equally important. Employers that champion diversity and inclusion not just during Pride Month but all year round stand to benefit from stronger legal compliance, more engaged employees and a safer workplace for all.

If you would like any further guidance on how your business can be legally compliant with sexual orientation discrimination, or indeed advice on how you can celebrate and support your employees, please feel free to contact our Employment Law team on 01604 936512 / 01908 953674 or email employment@franklins-sols.co.uk.

As we celebrate Pride, it’s a good moment to highlight how the legal landscape in the UK has evolved significantly over the years to protect the rights of LGBTQ+ individuals, but also emphasise that true equality requires continuous effort and vigilance.

Statistics and surveys indicate that a significant portion of LGBTQ+ employees still experience discrimination and harassment at work. According to Stonewall’s Workplace Equality Index, over one-third of LGBTQ+ employees have hidden their identity at work for fear of discrimination.

Legal Framework Against Gender Discrimination

The cornerstone of anti-discrimination law is the Equality Act 2010. This comprehensive legislation consolidates previous anti-discrimination laws and provides a robust framework for protecting individuals from discrimination, harassment, and victimisation based on nine protected characteristics, including sex, gender reassignment, and sexual orientation.

Under the Equality Act 2010, it is unlawful for employers to discriminate against employees or job applicants on the grounds of these protected characteristics. This includes:

• Direct Discrimination: Treating someone less favourably because of their gender identity or sexual orientation.
• Indirect Discrimination: Implementing policies or practices that, although not intended to disadvantage a particular group, disproportionately affect them.
• Harassment: Engaging in unwanted conduct related to a person’s gender identity or sexual orientation that creates an intimidating, hostile, degrading, humiliating, or offensive environment.
• Victimisation: Treating someone unfairly because they have made or supported a complaint about discrimination.

Key Protections for Transgender Individuals

One of the significant advancements brought about by the Equality Act 2010 is the specific inclusion of “gender reassignment” as a protected characteristic. This ensures that transgender individuals are safeguarded against discrimination in various aspects of employment, including hiring, promotions, and workplace conditions. Employers are required to respect the preferred gender of their employees and make reasonable adjustments to accommodate their needs.

Workplace Policies and Best Practices

Despite these legal protections, gender discrimination in the workplace remains a pervasive issue. Employers play a crucial role in fostering an inclusive environment through proactive policies and practices:

1. Diversity and Inclusion Training: Regular training sessions help raise awareness about gender issues and promote respectful behaviour among employees.
2. Inclusive Policies: Implementing policies that explicitly protect LGBTQ+ employees, such as gender-neutral bathrooms and flexible dress codes, can make a significant difference.
3. Support Networks: Establishing LGBTQ+ employee resource groups provides a support system and a platform for raising concerns.
4. Reporting Mechanisms: Clear and confidential processes for reporting discrimination and harassment are essential to address issues promptly and effectively.

Case Law and Real-World Impact

Case law highlight both the progress made and the ongoing struggles faced by LGBTQ+ individuals in the workplace. For instance, the landmark case of Taylor v Jaguar Land Rover in 2020, where a tribunal ruled in favour of a non-binary employee, underscored the importance of recognising non-binary identities under the Equality Act’s protection for gender reassignment.

Facts

• Claimant’s Background: An engineer at Jaguar Land Rover’s plant who identified as transgender, gender fluid, and non-binary from 2017.
• Workplace Issues: Faced insults, abusive jokes, and toilet facility issues based on their clothing. Received inadequate support from HR and management, who often dismissed complaints.

Decision

• Tribunal Ruling: The tribunal recognised the claimant’s gender reassignment characteristic under the Equality Act 2010, despite no surgical transition.
• Findings: The claimant experienced harassment, direct discrimination, and victimisation. They were also constructively unfairly dismissed.
• Outcome: Awarded £180,000 in damages. Jaguar Land Rover was recommended to appoint a Diversity and Inclusion Champion and conduct annual diversity reports. The tribunal criticised Jaguar Land Rover’s equality practices.

Analysis

• Legal Implications: The case affirmed that transitioning individuals are protected under the Equality Act 2010. However, the protection status for non-binary individuals not undergoing a transition remains unclear.

Takeaways

• Employer Responsibilities: To avoid discrimination claims, employers must provide comprehensive equality and harassment training, promote policies, and enforce sanctions for non-compliance.

• Creating Supportive Workplaces: Employers should foster a supportive environment for non-binary and gender fluid employees and ensure clear expectations and procedures for addressing unlawful treatment.

Moving Forward

While the legal framework in the UK provides a strong foundation for combating gender discrimination, the real challenge lies in changing workplace cultures and attitudes. Employers must go beyond compliance, actively championing diversity and inclusion to create environments where every employee, regardless of their gender identity or sexual orientation, feels valued and respected.

If you require any advice on your employment rights or how these changes may affect you, please contact our Employment Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

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