The Equality Act and trans people

These are the provisions of the Equality Act 2010 referring to trans people. There are Explanatory Notes.

What trans people are protected? Anyone who intends to transition to the other gender as a binary trans person. Non-binary people are not protected. The Act refers to “gender reassignment” but “transsexual persons”, so gender and sex are treated as synonymous.

7 Gender reassignment

(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

Note cis people are not protected. It is lawful to discriminate in favour of trans people. The guidance says the protected characteristic includes people who have completed the process- “has undergone a process” was completely clear, but the notes put it differently. Anyway, a GRC does not mean I am no longer protected, or that the provisions allowing discrimination against trans folk no longer apply to me.

What are we protected from? Direct discrimination, being treated worse than a cis person because we are trans, s13; discrimination because we are off work for medical appointments, treatment or convalescence because we are trans, compared to someone taking time off for appointments for any other medical condition, s16; indirect discrimination, where there is a requirement that cis and trans people equally have to satisfy, but trans people have a particular difficulty satisfying- unless that is a “proportionate means of achieving a legitimate aim”, s19.

We are also protected from harassment, that is bullying because we are trans, s26, and victimisation, bad treatment because we have raised a grievance or made a claim under the Equality Act, s27.

Like the other protected characteristics, we are protected in matters of work, which includes employment but is wider, services provided by companies or public bodies, schools, further and higher education, clubs and associations.

Sporting bodies can impose rules on transsexual people to secure fair competition or the safety of competitors, s195.

All-women shortlists for political candidates can include trans women, s104.

The bits I want to pay particular attention to are the exclusions of trans women from women’s spaces. Schedule 3 applies to the provision of services and public functions.

The armed forces can discriminate against us if that has the purpose of ensuring combat effectiveness. Here, the statute looks at “purpose”- it is a matter of intention, not how effective the discrimination would be in increasing combat effectiveness, or how disproportionate to the aim. Para 4.

Churches can refuse to marry couples where one party has a reassigned gender, para 24. Or when the pastor falsely but “reasonably” believes s/he has.

Single sex services can exclude us. There are two separate provisions. Paras 26-27 apply to sex discrimination, and allow services to be for one sex only. Then para 28 allows trans women to be excluded from women’s services. It applies to gender reassignment discrimination.

28(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2)The matters are—

(a)the provision of separate services for persons of each sex;

(b)the provision of separate services differently for persons of each sex;

(c)the provision of a service only to persons of one sex.

All services are affected, from toilets to rape crisis centres and women’s refuges. It means we can be excluded or treated differently because we have undergone a process of gender reassignment, even if we have a gender recognition certificate.

The Gender Recognition Act 2004 declares my sex and gender are female- s9(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

However the Equality Act still treats me as a trans woman, because it trumps the GRA, which provides, s9(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

Note the test of “proportionate means of achieving a legitimate aim”. The Equality and Human Rights Commission says this is only in exceptional circumstances.

Para 27 regulates when single-sex services may be provided: an establishment for persons requiring special care, supervision or attention, or where “a person of one sex might reasonably object to the presence of a person of the opposite sex”. However, women’s services should generally admit trans women. If they could exclude me arguing my “sex” was male, then para 28 would be superfluous. Parliament is presumed not to enact meaningless and pointless law.

Schedule 9 relates to employment. Para 1: An employer can require an employee to have a particular protected characteristic, if it is a genuine occupational requirement. An employer can also require an employee not to be a transsexual person. This has also to be a “proportionate means of achieving a legitimate aim”.

Here are the explanatory notes on exclusion from services of gender-reassigned people. A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful. I disagree: would you exclude a trans woman if one cis woman would not attend? But the guidance notes are broad.

And on employment: This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim

Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.

A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.

Well, a service specifically for unemployed Muslim women at a Muslim community centre might not use a trans worker, but a service for women could not refuse to employ a trans worker on the off-chance that Muslims might use it. The rule has to be “proportionate”. Possibly, a service could refer Muslim women to another worker; but as that would discriminate, that should not cause problems for the trans worker.

The guidance notes were written quickly at the time of the Act, and since then the Equality and Human Rights Commission has had time to consider the matter more fully, and issue codes of practice. They say, The basic presumption under the Act is that discrimination because of the protected characteristics is unlawful unless any exception applies and any exception to the prohibition of discrimination should generally be interpreted restrictively.

The exceptions are permitted if they are a proportionate means of achieving a legitimate aim. This is the “objective justification” test. It is a defence for the discriminator, so the discriminator must prove it is justified.

The aim must be legitimate- legal and non-discriminatory, representing a real, objective consideration. Ensuring the wellbeing or dignity of those using the service, preventing fraud or abuse, ensuring health and safety, and ensuring services go to those most in need, are legitimate aims.

Proportionate requires a balancing exercise. Could the aim be achieved by less discriminatory means? Cost can only be taken into account if there are other good reasons for the discrimination.

The more serious the disadvantage caused by the discriminatory provision, the more convincing the objective justification must be.

Any public body discriminating must comply with their public sector equality duty. This is in s149 of the Equality Act: in everything it does, the public authority must have regard to its duties to eliminate discrimination, advance equality of opportunity, foster good relations between trans people and others, remove or minimise disadvantages suffered by trans people, take steps to meet their different needs, and encourage trans people to participate in public life. They should tackle prejudice against us, and promote understanding.

In the 1990s, trans people were using the Sex Discrimination Act because discriminating against someone using a female name who the discriminator thought was female was clearly sex discrimination. From 1 May 1999 the Sex Discrimination (Gender Reassignment) Regulations formalised this in employment discrimination claims for a person who “intends to undergo, is undergoing or has undergone gender reassignment”, defined as “a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process”. The Equality Act removed the words “under medical supervision”. From 6 April 2008 the Sex Discrimination (Amendment of Legislation) Regulations extended the protection to goods and services discrimination.

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