Transgender Equality- the Government’s response

The Government says Equality is very important to us- but limits what it will do to achieve it. Often, they do the minimum required under international obligations, which is why leaving the EU is so troubling.

The minister writes, A commitment to equality is at the heart of this Government and is essential to building a strong economy and a fair society. We want to build a society that celebrates and benefits from the talents of everyone; ensuring fairness, protecting the most vulnerable, and prioritising equal opportunities for all. We know that transgender people face continuing transphobia, increased mental health issues, discrimination in the provision of public and private services and bullying in our schools. That is why I made transgender equality a key priority for my department after the General Election last year. 

Yet. The committee recommended that discrimination against trans people be made unlawful. At the moment, I am protected because I have transitioned to female, and anyone who decides to do so is protected. The committee wanted that extended to anyone with a gender identity not male or female or as assigned at birth: those who are transsexual but feel unable to transition, as well as those with other identities. The Government responds, The provision of a protected characteristic of “gender reassignment” in the Act is fully compliant with our obligations under the Equal Treatment Directive (2006/54/EC). They do the minimum required. They say that others might argue they are falsely perceived by the discriminator to intend to transition.

They refer to their guidance to employers on recruitment and retention of transgender staff. It correctly states that When people feel valued by their employer for the contribution they can make to the organisation as an individual, regardless of their personal (or protected) characteristics, they are more likely to:

  • Feel engaged and enthusiastic;
  • Go the extra mile and expend discretionary effort;
  • Have better attendance;
  • Be a better team member;
  • Stay longer and offer loyalty; and
  • Talk about their employer in positive terms.

However, that guidance then defines “gender reassignment”, showing that anything other is not protected.

Similarly, the Committee recommended that there be no exceptions. The rules that discrimination against transsexual people is legal when there is a “Genuine Occupational Requirement” that a worker be cis muddies the waters. It makes certain employers more likely to discriminate, and more likely to defend a court action on discrimination. The Government is keen to ensure that that law in this area operates fairly and is not abused, therefore we are keen to receive further representations and evidence on the availability and use of the exceptions in the Equality Act 2010 from all affected parties to take into account for future policy discussions. That is, they will do nothing about this yet.

Charges for using Employment Tribunals, the abolition of the discrimination questionnaire which could obtain evidence of discrimination, the greater likelihood of costs being awarded against claimants who lose and the cutting of the Equality and Human Rights Commission have all made equality law less valuable, because it is more difficult to enforce.

The Response (pdf)
Guidance on employment of transgender staff (pdf).

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