Good, Bad and Ugly: Equality Act Code of Practice

I’m a little tardy in this but I haven’t seen it handled elsewhere yet so it’s still worth writing about. Last week, the Equality and Human Rights Commission published their Codes of Practice for the Equality Act 2010 – one on Employment, one on Services and a final one on Equal Pay. (I’ll use paragraph numbers from the Services document here as much of the content is replicated across all three documents)

Although laid before parliament, the Codes of Practice are not law themselves but interpretations of the law. Having said that, employment lawyers have suggested that they are still influential documents in determining how judges interpret law and more critically, what happens on the ground. To my mind, that’s more important to those that are discriminated against than the outcome of an appeal on a point of law years after the event.

The Codes of Practice are somewhat of a mixed bag. There are some good bits, some bad bits and one particularly ugly bit that I suspect many people really won’t like – although I can see why it is in there from the point of view of the Commission.

We’ll start, logically, with the good. For those having problems with employers or anyone providing a service, the Codes of Practice provide one convenient document appropriate to the situation that can be printed off, rolled up (If you can figure out how to roll up documents that are nearly 300 pages long) and used to beat them over the head with. Granted, it might be more useful to actually hand them the document or point them at an online link but at least you have that option to relieve stress.

Perhaps more practically, the definition of “gender reassignment” is now interpreted as much broader than previously. (2.20-2.21) You don’t need to be seeing a doctor – perhaps of more use to trans men than women, and that is indeed the example given. However it also mentions that this may be of help to trans children, as schools can’t discriminate against trans children who might have difficulty accessing medical services.

You also don’t need to actually be transitioning to get protection, considering it or having considered it is enough. (2.22-2.24) This is interesting because the example given says that you can, for example, tell someone who wants to come crossdressed to a party “for a laugh” that they can’t because that wouldn’t be discrimination. But, as soon as you’re dealing with someone who is at all transgender identified, it gets a bit more complex. I’ve known quite a few people who were “just” crossdressers who went on to transition, so it would seem that you could make a case out here for protection of anyone with a history of transgender identification.

Remember the example of the children. you don’t need to say out loud “I’m thinking of transitioning” to get protection, as children do not have the necessary wherewithal to be able to express themselves in such a way. (I don’t believe this would extend as far as toilets or changing facilities however, due to the “someone might be offended” clauses in the act.)

Another good point is that it is explicitly stated that you should not ask for a Gender Recognition Certificate (2.27) as that’s a breach of privacy. Instead, if you are uncertain of a persons legal gender, you can ask for a birth certificate. (Although this could be problematic for anyone not born in the UK as they may not have an accurate birth certificate and only a GRC) This is slightly confusing in context, as the act does make having a GRC/updated birth certificate largely pointless except for the ability to marry, from what I can tell.

The bad is that the codes of practice do not go any way to clearing up the whole mess around rape counselling and similar services. They give a positive example of a health spa where it would be unlawful to discriminate because other users felt uncomfortable around one person but do not elaborate as much as I would have liked.

It seems this is partially because the commission itself are not quite sure what the effect of the law may be. This is particularly so on the topic of Gender Recognition Certificates apparently no longer fully protecting someone against employment discrimination.

One positive point – and it is not, sadly, in the code of practice – but I’m aware that the commission consider it would be illegal to operate a blanket ban on trans people for any service and it has to be considered for each individual case. This would mean you could not have a “women-born-women” only policy for anything, even rape counselling.

Which brings us on to the ugly (13.58) and part of the reason it seems they believe it needs to be considered case-by-case. I’m going to quote verbatim from the Code of Practice for this one:

Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transseuxal person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

This just makes me cringe. It’s passing privilege enshrined within official guidance, saying “If you’re lucky enough to pass or can afford facial surgery, well done! You’re protected”. However, if you’re unlucky enough not to pass and do actually need the protection? The message is “Sorry, you’re out of luck.”

Given that the gender reassignment protections work even if you are not transsexual and just look a bit like you might be, it could be said that the Equality Act specifically allows discrimination against “ugly” people.

Still, I notice the nice get-out for those of us that do pass – “strong reasons to the contrary”. Ugh.

9 comments

    1. Perhaps we should suggest a scientific study to generate a “passability scale” so they can further refine exactly how much discrimination someone should face in a given situation?

  1. The clause which as you say basically amounts to ‘passing ability’ is quite astounding!

    Surely it would be obvious that those that ‘pass’ are generally less likely to experience discrimination than those that do, so, it’s those that don’t ‘pass’ that are going to need to be protected?

    My eyes were very much drawn to point 2.27 too!

    … then their (new) birth certificate should be sufficient confirmation.

    Should?!! Well, what the hell is the point of issuing a new birth certificate (and originally saying that it was technically illegal to ask for a gender recognition certificate), if the legislation is drafted so vaguely?

    Were PfC or other trans group, etc. involved or even consulted in the drawing up of the Equality Act? It just seems incredible such clauses exist?!

    1. Surely it would be obvious that those that ‘pass’ are generally less likely to experience discrimination than those that do, so, it’s those that don’t ‘pass’ that are going to need to be protected?

      I don’t believe that when the act is drafted they really thought about it in that level of detail, so it simply never occurred to them!

      Should?!! Well, what the hell is the point of issuing a new birth certificate (and originally saying that it was technically illegal to ask for a gender recognition certificate), if the legislation is drafted so vaguely?

      The only case I can think of where you need the GRC is the foreign birth certificate one – other than that, I can only guess that use of the word “should” may just be a case of “we can’t be 100% certain there aren’t situations we didn’t think of”. I can’t imagine a situation in which someone would want to prove they are Trans. (I can think of many – mostly bigotry-driven – in which you’d want to prove you’re not, but that is as far as I’m aware impossible)

      Were PfC or other trans group, etc. involved or even consulted in the drawing up of the Equality Act? It just seems incredible such clauses exist?!

      I believe some PfC types may have been involved a little on the act, but there’s a bit of a disconnect with the grass roots which is why there wasn’t much publicity at the time. (It took Zoe Brain’s post – and she’s in Australia – to get things moving)

      Rather more critically, because the whole thing was part of the end-of-parliament “washup” it went through faster than usual at a time when everyone was also busy worrying about election campaigns.

  2. You know ultimately what this reminds me of, is the paralell to some writers who, in demonstrating the outrageousness of a particular incident of transmisogynistic behavior, will mention that she was post-op as though that makes it worse.

    We need to stop exending rights based on how well one assimilates. It merely compounds fortune or misery.

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