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…”