Posts Tagged equalities act 2010
News in this afternoon, via a statement on their web site and an email to those that complained, is that Conway Hall have cancelled the booking for the controversial RadFem2012 conference.
The statement is quite interesting, in that it includes the line “In addition, we are not satisfied it conforms with the Equality Act (2010)” and – this is the interesting bit – “We had sought assurances that the organisers would allow access to all“. Note they don’t say “transwomen”, they say “all”: it’s as much about excluding men from a feminist conference being unlawful as it is transwomen, which is right and proper.
Basically, you can run a women-only workshop as part of a conference for rape victims. You can run a cis-only workshop for partners of trans people. These are good ideas and, as long as sensitively handled, to be encouraged.
You absoultely can not run a whole conference on the basis that you hate transwomen, men and anyone who identifies as anything other than pure female so much you’re going to exclude them.
From an activism point of view, it’s good to note that the legal advice received by venues hosting events such as this is sufficient to make them think twice and I also see that the RadFem2012 web site currently mentions simply that “the venue has been changed”. I suspect they’ll only tell paid-up attendees where it is this time, and try to keep it from everyone else.
I have not seen last night’s episode – I’ll watch it tonight – but I understand that there was a scene in My Transsexual Summer that some people have expressed surprise at where Drew is refused employment in a Bridalwear shop on account of being a Transwoman.
Unfortunately, this is not only permitted under the Equality Act (EA2010), it’s one area where Trans folk had rights stripped away as a result of the new legislation. Prior to the EA2010, if someone had a Gender Recognition Certificate (GRC) then they could not – except for a tightly defined set of circumstances involving intimate searches and the like – be discriminated against. This came from the Gender Recognition Act 2004 (GRA2004) amendments to the Sex Discrimination Act 1975. The explanatory notes from the GRA2004 say:
If, for example, the nature of the job requires a woman, it is open to the employer to show that it is reasonable to treat a male to female transsexual person as being unsuitable for that job. The amendments made by Schedule 6 mean that these exceptions will not be available once a person has been recognised in the acquired gender
I don’t know if Drew has a GRC or not, but it’s now irrelevant. The EA2010 removed this rule regarding having a GRC, such that it’s just as legal to discriminate against someone just because you think they might be Trans. (They do not actually have to be Trans, you just have to have “reasonable grounds” to believe they might not be cisgendered)
To add insult to injury, there’s a “passing clause” in the guidelines issued by the Equalities and Human Rights Commission. If you’re “visually and for all practical purposes indistinguishable from a non-transseuxal person of that gender” then it’s much harder, almost impossible, to justify discrimination.
Paradoxically, every other protected characteristic allows you to employ a person with that characteristic – you can insist someone is from a certain ethnic background for example, if you can show that it’s needed to do the job. It’s reversed for Gender Reassignment in that you can insist someone is cisgendered, (Not Transgendered) such as in this case. You can not however insist that someone is Transgendered, no matter how relevant that is to the job as that would be unlawful discrimination.
There’s possibly some room for debate on if being cisgendered might be a “Genuine Occupational Qualification” in this case. It’s arguable that it’s not, but as Sarah put it, “I wouldn’t want to take that one on as a test case”. There’s a strong possibility you’d be having to stuff people into tight-fitting wedding dresses and wield the tape measure, so it’s a step up from just the “changing room problem”.
I’m just on my way back from a meeting with the Equalities and Human Rights Commission regarding the Equalities Act that was informative, if not entirely productive.
There is apparently a degree of debate between the EHRC and the Government Equalities Office (Who actually write and implement these laws) on what the Equalities Act means in practice, with the EHRC positioning themselves during the meeting as wanting more from the GEO in the code of practice than the GEO were willing to approve.
Firstly, and quite worryingly, the EHRC legal team told us that the GEO believe that a GRC “does not apply to single sex services or accommodation“. (i.e. you can be discriminated against even if you have one) This seems to mean that a GRC is increasingly being rendered worthless in practice, particularly as the EHRC also believe that the apparent removal of employment protection if you have a GRC is a deliberate act and not in fact a drafting error!
I should be meeting with the GEO next month and I will put the above points to them.
On the “passing” clause – you only have full protection if you pass – we were told this was an interpretation of existing law. The case mentioned was A v West Yorkshire Police but having read the final House of Lords judgement, I can not see the relevance. It may be in one of the other appeals, but I shall try to find out more.
The EHRCs approach on matters in general is to seek test cases to simultaneously clarify grey areas and raise public awareness of equality duties. It was pointed out by several people present that this is far from ideal for those trapped in discriminatory situations as it can take years and much stress to resolve.
On that point, Sarah raised the issue of NHS primary care trusts restricting gender services to a single provider (e.g. Charing Cross) as being a good example of both direct and indirect discrimination as this does not happen with other services. It also goes against the EHRCs stated aims of reducing class-based inequality in terms of things like health as those that can afford to go private will, whereas those who can not will not get treatment. (Not just for Gender-related issues either – being Trans taints every medical issue you may ever encounter) Unfortunately, she was unable to secure a commitment to use this as a test case from the EHRC, only vague assurances that they were working with the Department of Health on the issue so it seems likely that any court action, if they are serious about this, would need to be against a private organisation rather than the state. (I would, given the chance, argue that most Trans discrimination still emanates from the state. Capitalist organisations will often blindly take your money and use your services anyway!)
And finally, a couple of minor points raised were that the EHRC believe direct discrimination provisions within the act will generally “mop up” any areas not covered under harassment clauses for LGBT people and that the exceptions allowing discrimination do not apply to perceived membership of a group, only actual membership. This means that they think you should not be discriminated against just because someone believes you are Trans but only if you are actually Trans, but good luck proving you are cisgendered or if you are a grey area. (E.g. transitioned male or female to neutrois) On raising this last issue, we returned to “well, I think we’d need a test case…”
On Monday, there is a meeting at the Equalities and Human Rights Commission to do with Trans-related aspects of the Equalities Act 2010 and I shall be there. It’s more a chance I think for them to tell us about the act and us ask questions rather than try to influence future policy, but I am told we’ll be able to “raise issues and concerns”. If anyone has any points they’d like me to raise, please let me know either by commenting below or via E-Mail – contact details are on my “About/Contact” page.
Feel free to use a pseudonym and are stealth or would like to comment anonymously. Although I won’t stop anyone from doing so, I’d prefer people didn’t just use names like “Anonymous” though because then I can’t figure out who is who in future!
Issues I’m currently thinking of bringing up are: (In no particular order)
- The apparent conflict between the Gender Recognition Act and Equalities Act in respect of GRCs: The former says you can’t be discriminated against in employment once you have one, the latter says you can. I know the EHRC have already been talking to legal people about this but I’ve not seen any conclusions.
- Concerns that the Code of Practice apparently says you need to pass to get full protection, which I would argue is not a desirable state of affairs.
- Application of the Act in practice. We’re told that it would be illegal to operate a blanket ban on Trans people accessing services such as rape counseling and single-sex wards in Hospitals, but we’ve already seen in the case of Nina Kanagasingham that some parts of the state still continue to operate what appears to amount to a blanket ban if you don’t have a GRC.
- Sarah is also going and planning on asking about PCTs restricting gender services to a single provider. This may be indirect discrimination against Trans folk as they can only do this as Gender Reassignment services are run by mental health services.
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.
“Will transsexuals destroy women’s sport?” is the second largest headline on the front of today’s Spectator Magazine – the largest, predictably, being in relation to the Comprehensive Spending Review. It’s not exactly a positive headline, for a start using “Transsexual” as a noun. For those unfamiliar with the territory don’t do it as it implies it is very othering – man, woman or transsexual? It also contributes to the erasure of trans-male identities in this case as the implication in the headline is that only Trans women exist.
Still, “Sure, if all the women athletes transition to become male, that could damage women’s sport” springs to mind as a humorous response to the front-page headline.
There is a copy of the copy of the Article online, but I fear you will need a paper version or subscription iPad/iPhone version to see the article in the context the editors unfortunately intended. It does improve a little on the contents as the article is billed as “Transsexuals on the track – A new divide in women’s sport”… well, it’s not new, really. Any slightly more positive spin on that page is undone by the photo of a female shot-putter with the caption “Gender games” under it. A shot-putter? Please.
Once we get free from the clutches of the magazine’s editors though, the article by Luke Coppen isn’t that bad. It’s jumping off point is the recent news about Lana Lawless, a Trans woman golfer, who has had to sue a US Golf Association over their Women-born-Women policy. It’s not too bad an article, starting off by listing the concerns of others – “enjoying the physical advantages of men” and then going on to deconstruct them. It doesn a pretty good job of covering most of the well known (Within Trans circles) problems that the International Olympic Committee have had in trying to figure out who they should allow to compete… and the problem that as in this case, if a Trans woman does succeed, it’s clearly because she was “born male”, not actually because she’s a good athlete.
It’s shame this generally positive attitude is spoilt by one particular phrase in the last paragraph: “As long as there is a male-female division in sports, there will be people stealing across the border.” I’m not “stealing” across anyone’s border, thank you very much. And if anyone did try, I think they would be in for a rude awaking given that the penalty for transitioning when one shouldn’t is similar to not doing so when you need to – depression and suicidal thoughts.
There’s a reason for this post, other than just generally getting annoyed at the headline on the front page. Coppen’s article points out recent research shows that any advantage Trans Women have over cis-gendered wimen is lost after around a year on HRT. This is broady in line with current International Olympic Committee guideline that stipulates a 2 year gap between transition and competing in your aquired gender.
So, we return to our old friend, the Equality Act. Sadly, the sort of nonsense that’s happened in the US with this case could happen here too and it’s entirely possible someone in Lana’s position would lose the case because the act just makes vague references to “fairness” and “safety”. (If it’s not safe for someone to compete, regardless of gender, then you’re doing it wrong)
But if a random author of a magazine article can figure out that there’s no advantage to Trans Women (Where are the Trans Men?), why couldn’t the authors of the act figure out how to express it in terms that didn’t give anyone an excuse to discriminate indefinitely and justify it.
Good news: Cambridge City Council have voted on and approved a revised equalities policy saying that they will not use the various (bad) exemptions in the Equalities Act relating to those undergoing gender reassignment. I was there for the discussion last night, but Sarah asked me not to talk about it until the press release went out today.
For those who don’t know, Cambridge had the first Trans mayor in the UK (Second worldwide, I think) a few years ago and has had at least three Trans Councillors that I know of. I think it is proboably one of, if not the most progressive city in the UK in terms of Trans equality.
Hopefully this will set an example that others can follow. The full press release is below, I think it speaks for itself.
Updated: Sarah has also written in her own blog about this and goes into a little more detail.
COUNCILLOR’S VICTORY FOR TRANSGENDER EQUALITY
Cambridge City Councillor, Sarah Brown, has scored a significant victory for the city’s transgender group and given the council a leading edge in the battle for equality.
She called on the council to exceed the requirements of the Equality Act by making sure that workers applying for gender appropriate positions with the council and people using single sex facilities provided by the council were not discriminated against.
The 2010 Act allows discrimination against transgender people in these two areas.
A LGBT activitist, Cllr Brown raised the issue at the council’s Strategy and Resources Scrutiny Committee last night (Monday, October 11) and was successful in changing the council’s Equalities Policy.
She told members she was not challenging the terms of the Act but simply asking to exceed its minimum requirements as an example of best practice.
She said: “I wanted Cambridge City Council to maintain its reputation as being in the vanguard of LGBT best practice in exceeding the requirements of this Act in this area.
“It has been generally agreed throughout the transgender community that these sections of the act were unjust. The city council should be aiming to do better than the minimum standard that the Act allows.
“I am delighted that the committee gave me its backing. It is crucial that transgender workers are not treated differently from other workers and not discriminated against in any way.
“This should prove very reassuring to the transgender community and reinforce the council’s reputation as leading best practice in this area.”
As my last post seems to have struck a chord with some people, it’s become hugely popular and some good points have been bought out in discussion in numerous places. Rather than try to reply in all those places, I’ll put a post up here.
Firstly, I’ll keep up any comment that’s reasonable debate and not a personal attack. Here’s a hint though, if your comment includes phrases like “Suck it up”, it’s going to get deleted. My blog, my rules. Deal.
It also seems some people misinterpreted the post to mean that I no longer identify as a woman. The point is that I do, but the Equalities Act 2010 now brands me a “Transsexual Person”.
On the act itself, much of it isn’t directly regressive in terms of primary legislation but goes against what had been a gradual swing towards equality over the last few years. In terms of equality, things like best practice and secondary legislation are as important if not more important in what happens out there in the wider world than what parliament originally passed. The commencement of this act means all that best practice is being rewritten – to include all the “you’re allowed to discriminate against anyone who you think might be Trans” points. We’ve been over the specifics informally with a few people, including lawyers, since the original posts went up and they broadly agree with the interpretation – not that there is really much to disagree with, given the examples in the explanatory notes are quite graphic. I’ve heard a couple of dissenting voices, but always people I’ve not managed to sit down and go through the act with. Equalities people tend to be quite surprised when we point out the specifics.
There’s been some confusion over access to services in that the act compels discrimination. It does not do this, it just allows for it to take place. However, bitter experience within the Trans community shows that we’re often the ones to suffer if someone objects to our presence. It’s rarely the loud, problematic and transphobic individuals who get excluded from spaces if they create a fuss but us, because we’re seen as an easy target. Someone objects to a fellow patient on a single-sex hospital ward who they think might be Transsexual? Who do you think the hospital are going to move? It’s worse with rape counselling services as such organisations are usually (Understandably) run by feminist-minded people. Whilst the vast majority of feminists are pro-trans there are a few second-wavists who are rabidly anti-Trans, because our very existence disproves some of their most deeply-held beliefs. Under the guise of “Some people might not feel comfortable”, they’re allowed quite legally to operate a blanket ban across the organisation for anyone with non-binary gender expression or to selectively exclude anyone they don’t like.
I’ll resort to the usual cliché here, updated to reflect modern Britain – would it be OK to exclude all Romany (Or people of colour or Hispanics if you’re American) because people might be uncomfortable or because of some constructed fallacy that all sexual assaults are carried out by a particular group? (Hint: Not all sexual assault is men assaulting women) Clearly not, so why are we so special that we deserve to be singled out for discrimination in the laws of the land?
There’s one area that is very obviously regressive though, to the point that one lawyer suggested that it may even be a drafting error in the legislation. (Many thanks to Darren Newman for spotting this one) I’ve mentioned this but never blogged about the details so I think some people are unclear on it. The specific section is Schedule 6 of the Gender Recognition Act 2004. This updated Section 7 of the Sex Discrimination Act 1975, itself modified by the section 4 of the Sex Discrimination (Gender Reassignment) Regulations 1999, with the upshot of the whole thing being that you can’t discriminate against someone at all if they have a Gender Recognition Certificate. Rather than progressively extending protection to other areas, the Equalities Act 2010 undoes the changes put in place by the Gender Recognition Act such that a Gender Recognition Certificate is no longer useful.
Or, to put it another way: Trans folk are made to jump through hoops to get a gender Recognition Certificate, including going through the trauma of state-mandated divorce just to get our Human Rights back. Then, a few years later parliament passes a law which basically tells us it was all for nothing and we’re not going to get our rights back.
Think we might be a little pissed off with this? You bet we are.
As of today, I am no longer a woman.
Today, I can be refused entry to a hospital that only operates single sex wards, despite being at a hugely increased risk of violence.
Today, I can be refused rape counselling, despite being at a hugely increased risk of sexual assault.
Today, I can be refused entry to sheltered accommodation, despite being at a hugely increased risk of domestic violence.
As of today, the Equalities Act comes into force and I am a “transsexual person”, despite holding a full Gender Recognition Certificate.
And if you think this can’t happen to you because you’re not transsexual? You don’t need to be, someone just has to believe you are – or claim to believe – and it’s perfectly legal.
Updated 3rd October 2010: For anyone not getting the point of the above, see this clarification post. There is also more background in my original Equalities Act post and the followup post from the same day.
It seems at least in the circles I move in that it’s quite the in thing to attack S’onewall and Ben Summerskill in particular. Well, just for the record I’m not jumping on the bandwagon because we helped give it a push start in 2008.
It may be that S’onewall haven’t forgiven the Trans community for upsetting their nice awards though. I noticed earlier this year that their mention of IDAHO, the International Day Against Homophobia and Transphobia strangely missed out the Transphobia. More recently I ran across their statement about their membership of the Equality and Diversity Forum which fails to mention Gender Identity, even though it’s present on the EDFs own website.
It concerns me that S’onewall are very good at publicity and education and thus are often consulted by public organisations when promoting and running equality campaigns, such as this example of an anti-Homophobia campaign by Gwent Police. Gwent Police’s portion of the press release fails to mention transphobia, although Gwent Crown Prosecution Service do manage to be more inclusive. Gwent Police no doubt think they’re doing the right thing and are to be applauded for that but I’ll hazard a guess that the beer mats being distributed, if S’onewall had anything to do with them, don’t cover transphobia at all. I’d encourage any organisation running any sort of LGBT equality event to also talk to GIRES who do excellent work on education. (As an aside, I’m still working on a Trans Action Group idea but I have some groundwork to do – GIRES don’t cover the same ground as they’re not political)
More bizarrely, Stonewall “declined” to take part in a Pink News article on Marriage Equality. All the other groups invited did submit their responses, although I’m concerned that only three of the eight organisations that replied thought it would be appropriate to mention, when replying to a request from probably the most Trans-friendly news service in the UK, the state-mandated divorce inflicted on transitioners. Of the three, two were unlikely champions – the Tories and the Christians.
And finally, I move on to one final Pink News story – Trans woman claims she lost her job after wearing women’s clothes. (Original Linconshire Echo story here – health warning, the comments include the usual kind of drivel you’d expect) Assuming the facts given are true, what’s the betting that a case like this would be defended in future using the provisions in the Equality Act 2010 because it made the clients she was working with “uncomfortable”? Luckily that can’t happen in this case as even if it doesn’t end up at tribunal for a while, the EA2010 isn’t yet in force.