EHRC Equalities Act meeting

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…”   

13 comments

  1. Very good point about their view on the harassment v discrimination issue. It is strange why trans children cannot claim harassment protection but have to resort to discrimination. Yet other kids; ie black, Asian, Muslim, LGB kids, can claim harassment.

    Surely if they can be harassed so can trans kids…

    1. The oddity is that LGB can’t claim harassment either, whereas other strands can. Apparently it’s down to Ben Summerskill from Stonewall claiming during parliamentary hearings that he didn’t think they needed it?! (Which is bizarre enough in and of itself, quite apart from the “LGB organisation influencing T rights” problem)

        1. I dug out Summerskills original evidence, it’s here. Specifically:

          Ben Summerskill: I can certainly say on the issue of harassment we are not convinced that there is a need for protection in this area.

          It’s interesting to contrast that to Stephen Whittle’s evidence, which begins:

          Stephen Whittle: We feel very strongly that the Bill does not go far enough.

            1. It’s not subject to regular elections, no. I believe it’s probably a post appointed by the trustees. I’m not sure how one becomes a trustee, other than being appointed by existing trustees so it does seem somewhat of a closed shop.

              Of the twelve trustees, over half are corporate – banks, consultancy/law firms or similar.

              1. Just looked up the trustees and it is interesting that ‘Rob Berkeley, Director, Runnymede Trust’ who was a witness at the committee meeting linked above, is also a Stonewall trustee.

                Closed shop indeed!

  2. “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!”

    Surprisingly, that is fantastic news to those who hold a GRC! The exceptions for religion rely on the same definition so those exceptions also probably don’t apply to somebody who holds a GRC! Yipee! That is what I thought but it is good to have some sort of confirmation.

    The lack of employment protection is minor because if one were to be dimissed because an employer belived you had undergone gender reassignment, that would be sufficient to trigger protection ie we don’t need to show that we are protected but rather an employer needs to show they didn’t perceive us to have undergone gender reassignment.

    Moreover, for many people it should be possible to bring a case instead on grounds of disability.

    1. Surprisingly, that is fantastic news to those who hold a GRC! The exceptions for religion rely on the same definition so those exceptions also probably don’t apply to somebody who holds a GRC! Yipee! That is what I thought but it is good to have some sort of confirmation.

      Unfortunately, it doesn’t work like that. If you don’t belong to a protected strand – say, you’re ginger to take a recent topical example – then you can be discriminated against without any protection.

      The lack of employment protection is minor because if one were to be dimissed because an employer belived you had undergone gender reassignment, that would be sufficient to trigger protection ie we don’t need to show that we are protected but rather an employer needs to show they didn’t perceive us to have undergone gender reassignment.

      Moreover, for many people it should be possible to bring a case instead on grounds of disability.

      I’m not sure I follow here. The effect of the Equalities Act is to remove previous protections that meant that with a GRC, an employer could not claim a “Genuine Occupational Requirement” that someone was cisgendered. To use the example from A v West Yorkshire Police, a Chief Constable could now impose a requirement that all police officers are cisgendered as that is required to avoid causing offence when searching someone. The disability strand won’t help, because Genuine Occupational Requirement exemptions apply to disabilities.

  3. The genuine occupational requirements are phrased as ‘is not a transsexual person’. We don’t need to argue over what that means because the table of defined terms lists it as a person who has undergone gender reassignment. Someone with a GRC doesn’t meet that definition on the basis of GRA section 9. We drop right out of the Act altogether.

    1. …which would then mean that we have no protection at all, given all other equalities law was repealed by this act.

      The courts would not consider the law to say that as it’s clearly contrary to the wishes of parliament.

  4. Actually I’d argue that courts would *have* to interpret it like that. The right to birth certificates in Goodwin and I was won on the basis of Article 8. If our birth certificates are less valid than those issued at birth then that would seem to offend Article 14 (discrimination).

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