Now, I am protected by British discrimination law because I sought Gender Reassignment: being assigned male at birth, I decided permanently to transition to female. British MPs want to extend that protection to all gender identities and none.
Trans people are protected as soon as they make that decision, but it is the decision to change physiological or other attributes of sex. Generally, people think that means The Operation. The Women and Equalities Committee reporting on Transgender Equality say this is outdated and misleading, and the protected characteristic, the thing which makes bad people discriminate and the law protect us should be “gender identity”. This means that genderqueer people would be protected. This does not go as far as New York, where all variant gender expression is protected.
Don’t hold your breath. In 2011 the Government Equalities Office published Advancing Transgender equality: a plan for action. The committee finds this is “largely unimplemented”. “Within six months” it says the Government must draw up a balance sheet of the previous transgender action plan, confirm those actions which have been completed and agree a new strategy to tackle those issues which remain unaddressed. It must say who is responsible: but there is no time-scale for implementation, five years on. And there must be a wholesale review of issues facing non-binary and non-gendered people– a review, before any agreement on action.
The International Commission of Jurists Yogyakarta principles, and the Council of Europe resolution 2048, call for a universal human right to define your own gender- male, female or anything else, and to have this recognised. We should have access to medical treatment, no diagnosis of mental illness, and recognition with such surgery or hormone alteration, or none, as we deem appropriate.
Right now, what are those “other attributes of sex”? The committee says it is a misapprehension that you need to want genital surgery, and quote, from the explanatory notes to the Equality Act, the example of someone who transitions without any medical intervention claiming he is still protected. How you present is therefore an attribute.
Non-binary people are not protected. The committee obtained a legal opinion saying that some non-binary people would be protected, as the employer discriminates because it “perceives”, or imagines, that the person intends transition. However, if the person came out as non-binary rather than transsexual, they would no longer be protected as the employer would not have that erroneous belief. And, where employers are careful not to appear to discriminate, proof of an erroneous belief would be difficult.
Caroline Dinenage, the Minister for Women and Equalities, said that the case for non-binary people had been considered when the Equality Act was debated, only five years before, but that she would consider amendment “if a case were made”. And the changes would only affect those who chose a non-binary definition of their gender.
The committee seems to imagine it is considering a small number of people who transition and a smaller number who choose to express a non-binary gender identity; rather than everyone, for everyone is constrained by gendered expectations.