Aimee Stephens

Aimee Stephens, who died in May, is a trans heroine. Her case in the Supreme Court of the US shows that discrimination on the ground of sexual orientation or gender identity is discrimination on the ground of sex, which is unlawful under Title VII of the Civil Rights Act of 1964. Why that is, might be a surprising argument for a British lawyer, beautiful in its simplicity. The Court’s judgment, of a majority of six (Alito, Thomas, Kavanaugh dissenting) was written by Neil Gorsuch.

Aimee Stephens was fired by RG & GR Harris Funeral Homes after she announced she intended to transition, and come to work in a conservative skirt suit or dress. Her employer claimed it would violate “God’s commands” to allow her to state she is female or behave in feminine ways. The case was heard together with those of two gay men. Donald Zarda was fired after he came out. Gerald Bostock was fired after his employer found out he was gay.

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Looking at the ordinary meaning of these words resolves the cases. “Sex” means “biological distinctions between male and female”. “Because of” means “By reason of” or “on account of”. This is “but-for” causality: but for their sex, these plaintiffs would not have been sacked. (It’s causa sine qua non, if you really want the Latin.)Those employers finding a female employee was attracted to men would not have sacked her for that. Harris would not have sacked a cis woman for wearing a skirt. “Discriminate” means treat differently, intentionally.

That means it is unlawful to sack or penalize someone, when part of the reason is their sex. Discrimination on the ground of sexual orientation or gender identity is necessarily discrimination because of the individual’s sex. A male worker was entitled to claim discrimination for sexual harassment by other men: it was different in form from the sexual harassment of women. An employer that would not hire women with young children, even though it favoured hiring women over men, was discriminating on the ground of sex, against those mothers as individuals.

It does not matter how people would label the discrimination. Aimee Stephens might say she was sacked because she is trans. It is still because she is seen as male. Sex need not be the sole or main cause of the employer’s action. And even if the employer treats men and women as groups the same, discrimination against an individual is unlawful.

The employers contended that they sacked their employees for sexual orientation or gender identity, and attempted to argue that was different from sex. But the rules are based on the sex of the employees, even though sexual orientation and gender identity are distinct concepts from sex. It does not matter that the Senate and House of Representatives have passed bills at different times to add sexual orientation or gender identity to Title VII, but these have never become law. If Congress had intended for there to be an exception- Discrimination on the ground of sex is unlawful, except when it is on the ground of sexual orientation- it should have said so.

The employers argued that no-one, in 1964, would have expected the law to apply to gay or trans people, but that does not matter because the words of the statute are unambiguous. The Court has to enforce the law’s plain terms.

That is, a conservative Supreme Court has extended protection to gay and trans people though others reading the law, including the sponsors of those failed bills in congress, did not think we were protected. The judgment is available as a pdf.

It is much more elegant than British law. Here, sex, sexual orientation, marriage or civil partnership, and gender reassignment are all separate headings for protection.

The law and trans people

Anti-discrimination law protects far more trans people than it says it does.

The Equality Act protects you from the moment you decide to transition. However, you have a right to privacy, so no-one should ask you if you are transitioning, or have transitioned. There is a statutory code on discrimination in services, which says providers should treat transsexual people according to the gender role in which they present. If you are a man cross-dressing for fun, and you go out, you should not be forbidden to use a women’s loo or changing room. If they ask you if you are transsexual or have decided to transition, you can refuse to answer such an impertinent question. There is no need to lie.

The code has a ridiculous example. Before going to a party in a local hotel, a guest lets it be known that he intends to come dressed as a woman for a laugh. However, the management says he cannot attend the event dressed as a woman as it would create a bad image for the business if there was bad behaviour on the premises. The management also tells a transsexual woman that she can’t come dressed as a woman as they don’t feel comfortable with the idea, notwithstanding the fact that they know she has been living as a woman for several years. The guest would not have a claim for discrimination because he does not intend to undergo gender reassignment and because the reason he is told not to come dressed as a woman relates to the management’s concern that overly boisterous behaviour would give a bad impression of the business, not because they think he is a transsexual person. The transsexual woman would have a claim as the reason for the less favourable treatment was because of her protected characteristic of gender reassignment.

The answer is don’t “let it be known”. Just turn up. Some AMAB people cross dress for pleasure, and some because we intend to transition. The hotel staff looking at you can’t tell which is which. I wondered if they might try to guess, if someone passed particularly badly, but that does not mean that they are not transitioning. We all have to start somewhere.

I don’t like that they say cross-dressing is “bad behaviour”. “Overly boisterous”- some cross-dressers can be meek souls, behaving quietly and respectably. The code is saying the hotel could forbid behaviour not because of how it affects other guests, but because of the motivation. They can’t forbid transitioners, but they can forbid cross-dressers. Not all businesses would: I liked an Italian restaurant in Oldham, and when I asked about going cross-dressed, they were fine about it. I did not want to draw attention to myself.

You might even make a legal claim if you are a cross dresser, refused access to women’s loos. You have to prove that the hotel believed you were transitioning. Unless they know you personally, they have no reason to believe you are not. If they have no firm belief that you are a cross dresser, they are discriminating against you though they may believe you are protected. It is discrimination if you are perceived to be trans: A woman with a medical condition that makes her appear ‘masculine’ is wrongly perceived to be undergoing gender reassignment and refused entry to a women-only sauna session at her local leisure centre. This is likely to be less favourable treatment because of gender reassignment.

If you clearly parody women’s clothes, you might be excluded, but trans people’s dress sense can be pretty bad, so you might get away with it. You may still face street harassment though. If it’s enough to put you in fear, it may be a crime. My street harassment reduced by a great deal when I completed electrolysis.

The code has this example of discrimination: A group of women complain to a health spa manager that they feel uncomfortable around another member of the spa who is a transsexual woman. In response, the manager apologises to the transsexual woman but tells her that she will not be able to use the spa again. This is less favourable treatment of her, as it puts her at a clear disadvantage compared to the spa’s other clients and will not be lawful if the spa’s conduct is because of gender reassignment. Transitioning or transitioned women have the right to be treated like other women.

Trans women have been protected by discrimination law on access to services since the Sex Discrimination (Amendment of Legislation) Regulations 2008. We have self-ID already: all you have to do is dress up. The campaign against trans women in women’s spaces pretends that there is some great change suggested, but that is a lie.

The Discrimination Tribunal

Jessica Yaniv’s claim of discrimination failed in the tribunal though the judge said that her complaint of gender-identity discrimination in a leg wax was justified (paragraph 102). The Judge Devyn Cousineau said she had made the claims in bad faith and for improper motives.

Jessica Yaniv was still using a profile on Facebook in the name Jonathan Yaniv, with a photo Cousineau thought appeared male. She said gender cannot be told from looks.

What if rights to single gender services should be? Where should we draw the line? Can you divine someone’s intention from how they present? I like to think people can be reasonable. We know what presenting male looks like.

We might distinguish use of services and ways of interacting. Gendered ways of interacting are oppressive. You don’t know if the person is non-binary or nonconforming. We might get to know the person rather than apply gender stereotypes. But we still need some single gender services.

The judge found Yaniv’s evidence disingenuous, self-serving, evasive, argumentative, and self-contradictory.

Ms Yaniv told beauticians that she had “male parts” but in tribunal was evasive. Asked “You’re saying you were asking her to wax a vulva?” she replied, “I’m not gonna say whether I have the whole thing. I’ll say it exists.”

I can understand her not wanting to answer questions about her genitals, but the tribunal decided the service of waxing a vulva was different from that of waxing a scrotum, and so there was no discrimination. So it was relevant.

On seeing Jessica as a man, Cousineau wrote, it was a common theme through these complaints that service providers initially perceived Ms. Yaniv to be a man based on her name and picture. Me. Yaniv strongly objected to this, arguing that there was no basis to assume her gender based on these details and that the very assumption was offensive. I disagree. While we may one day live in a society where a person’s gender is not assumed based on signifiers like name or appearance, we have not yet arrived at that point. For the most part, people still make assumptions about gender based on outward characteristics. While in some cases these assumptions are wrong- as they were in this case- they are mostly right. A service provider’s reliance on these assumptions is even more pronounced when they are communicating with potential clients via social media, with very little information.

They thought she was a man because she had a male name, short hair and no makeup. I think that is OK, but the problem arises if she intends to transition but is still part time presenting male. I would have explained the position. She is offering to pay for a service. Some people have two facebook profiles, one male one female.

I learned a little about the “Brozilian” or “Manzilian” wax, of penis and scrotum. I agree with Jessica that those terms are offensive to a trans woman, but they are ok for most people with scrotums, and possibly once she found a beautician who would treat her she could talk of a “genital wax”, but it is a different service from a Brazilian, a vulva wax.

The expert witness had run a business for many years and taught beauticians:

The penis almost always become erect, at least for some portion of the treatment. In her experience, it is not uncommon for the client to then request or expect sexual services and to become abusive when they are denied.

I found that completely shocking. I cannot imagine demanding a hand job from a spa worker.

Waxing does not kill hair follicles, only make them weaker. If your surgeon will use scrotal skin to line the neovagina, you should have laser treatment or electrolysis, having consulted the surgeon.

The skin of the scrotum is thin, and may tear in inexpert hands. She said a scrotum wax can take up to an hour.

The judge considered Yaniv had made the claims for improper motives, or in bad faith, so should lose. In part this is because of racial animus against the respondents. Yaniv considers certain ethnic and cultural groups don’t accept Canadian values, or trans women. The judge said that just as she should not have to endure being misgendered, so she should not judge the Indian-heritage legal representative on racialised stereotypes. Yaniv asserted immigrants were like Neo-Nazis, in that they were taking over her town.

Each of the five grounds for finding improper motives applies. The judge is clear that it is extremely difficult to demonstrate improper motives, and none of the grounds individually would necessarily be enough.

Jessica Yaniv had joined a women’s gym. She is not simply barred from women’s services.

This case has been used by transphobes to monster us, and oppose Equalities legislation supporting us. Yet the legislation has worked. Yaniv’s racist scheme failed.

Two women ceased to trade as aestheticians because of Yaniv’s legal threats; but many laws can be used to make unjust threats of legal action, not just gender discrimination law.

I am not responsible for Yaniv. What she does in another continent has no relevance to my rights.

A feminist case for trans inclusivity

Lorna Finlayson, Katharine Jenkins and Rosie Worsdale argue for trans women in women’s spaces as a feminist cause. Excluding us can lead to misgendering women including butch lesbians, and is intrusive. They summarise the exclusionary case: the prevalence of violence against women by men, the fact that men typically have certain biological features and have been socialised in a certain way, the fact that at least some of this seems to be true of many or even all trans women, and the fact that anyone can self-define as a woman, no matter how cynical or sinister their motivation then refute it.

Access currently depends on self-ID because of the Equality Act, and so some excluders seek to change that. Men are more violent to women than women are, but not necessarily because of qualities trans women share: rather it is because of social factors and expectations of men. Feminists argue there is no proof that biological factors make men and women different. And socialisation affects us differently, because we see ourselves as women. All sorts of factors shape us, and gender identity is an important factor. There is little clear empirical evidence on this, but trans women suffer from extraordinarily high levels of violence and need protection. We should not be excluded without evidence.

Women-only spaces are a best-fit measure for tackling gendered and sexual violence. It is a complex issue, so what is the pragmatic way to increase protection? To protect trans women too. Putting trans women in men’s spaces risks our safety. Third spaces would out us as trans, and policing women’s space might oppress masculine-appearing women.

Who counts as a woman is a political or ethical question, not a scientific or metaphysical one. It’s not that we are women because we feel we are, but in the radical feminist tradition, gender is a matter of social position, being part of a subordinated class. And our feelings, while not conclusive, carry weight. As a tiny, marginalised minority we are not oppressors.

Excluding us is similar to bigotry in that the arguments are similar to bigoted arguments against immigration. Sometimes, excluders are obsessive about the tiny number of instances of violence by trans women, rather than the much larger number of instances by men, just as the racist right obsess over rape by Muslims. Like the hard Right, the excluders foment fear that an inclusive, compassionate system will be exploited by benefits scroungers, bogus asylum seekers, or fake trans women. Including us reduces limited resources for women, just as the Right argues that immigrants “take our jobs”. Attending to the reality of trans women’s situation and our relation to patriarchy suggests that these arguments are Right wing and transphobic.

Giving energy to opposing gender recognition reform is the least effective strategy possible, if you want to oppose violence against women. In prisons, men might have the incentive to pretend to be trans women, but the policies themselves are robust even if the implementation is not. Feminists would be better to work alongside trans women for a better society. GRA reform makes it easier for trans people to live with dignity and respect.

Full argument here.

 

Becoming women

We know that gender recognition reform will not affect anyone apart from trans people. We know that it is a minor reform, only affecting people who transition, like I did. There will be no great influx of men in women’s spaces, no threat to refuges or rape crisis centres, no false statistics showing a huge rise in violent crime by “women”. There is nothing to worry about except the authoritarians being emboldened by the confected dispute to spread hatred against trans people. However, there is a confusion in the law between the Gender Recognition Act and the Equality Act, which if interpreted in a particular way would stop trans folk with a gender recognition certificate from complaining of discrimination at all, whatever was done to us.

The problem is s9 of the Gender Recognition Act. 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). So the law says my sex and my gender are alike Female. It goes on, Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards). So when interpreting the Equality Act, I am female.

The argument is that after I get the GRC, I am a woman. If I am a woman for the purposes of the Equality Act, then I cannot be excluded from women’s spaces. I am not a trans woman, I am simply a woman.

The Women and Equalities Committee obtained counsel’s opinion on the effects of changing the law. Read it if you like. I tried to understand it, then decided that was too much like hard work.

I can get read as trans. The sections which allow me to sue for damages if someone discriminates against me because of that protect me because I have “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”. The same definition allows me to be excluded from women’s spaces, if that is a “proportionate means of achieving a legitimate aim”. If I am simply a woman, rather than a transsexual person, I can’t be excluded from women’s spaces as a transsexual person, but because I can, without legal sanction, be discriminated against as a transsexual person I can be excluded because the person in charge of those spaces thinks I am transsexual. Even though I am not in law. Her space would be for some women and not for others, as she saw fit. I can’t then claim discrimination on the ground of sex, as I am the same sex as the people she lets in.

If I can claim to be a person who has undergone a process, etc, then she can only exclude me if it is a proportionate means of achieving a legitimate aim, which I abbreviate as PMoALA. If I am a woman by the GRA, and am no longer a “person who has undergone a process”, then she can exclude me just because she wants to.

I would rather be protected as a trans person than not. That interpretation would make sense to me.

So I don’t know what the Gender Recognition Act is for. At the time, it governed marriages, so that I could marry a man, but now I can marry a man or a woman (if I can find one willing); and it governed pensions, but now the European Court of Justice says I could get a pension on women’s rules without a GRC. Women’s rules are the same as men’s. I could claim under the equal pay laws if a man was paid more than me for the same job.

Gender recognition is a symbol, that the law calls me a woman. It does not affect my rights at all. It would be ridiculous if it stripped me of the right to claim damages for discrimination, and so it cannot mean that unless that is the plain, unavoidable meaning of the words.

Gender Recognition Act reform

What might the government do to change gender recognition in England and Wales? We don’t know, but can guess. We don’t even have the consultation yet but do have the Scottish consultation, the report of the Women and Equalities Committee, and Justine Greening’s announcement of the English consultation, made on 23 July 2017.

The announcement promised New measures to deliver greater equality for the LGBT community… ahead of the 50th anniversary of the partial decriminalisation of homosexuality. That’s accurate. The criminal offences were not completely expunged from the statute book until this century. Initially, there was a narrow defence to a charge of gross indecency or sodomy, which applied in restricted circumstances. Homophobia was still everywhere, and “normal”.

The new rights for gay men were underwhelming. Men who have had sex with men, even once, could not ever give blood, and that humiliates people who want to do a good thing for society. You can’t because you’re gay. Then a time limit was put in- they could give blood if they had not had sex with a man for a year, which is quite an intrusive question. The proposal was to reduce this to three months, but many people would find that an unbearable sex famine. Stonewall’s response was that there should be individualised risk assessment. Of course- what about faithful couples? The three month limit has now been implemented. These rules are in place to keep blood donors and the patients who receive their blood safe, said the press release.

Given the Women and Equalities Committee report, the new rights for trans people are underwhelming too. They are first described as Proposals to streamline and demedicalise the process for changing gender. It is not a consultation on trans rights, but on the Gender Recognition Act alone.

Proposals will include:

Removing the need for a medical diagnosis of gender dysphoria before being able to apply for gender recognition. The current need to be assessed and diagnosed by clinicians is seen as an intrusive requirement by the trans community; and

Proposing options for reducing the length and intrusiveness of the gender recognition system.

The gender recognition system is intrusive because it requires documentary evidence of expressing our true selves for two years, as well as that medical evidence. And our promise to live in the acquired gender life long is not enough: the statutory declaration which we swear to that effect must be assessed by the gender recognition panel.

However while in Scotland the consultation proposed a simple statutory declaration, the English announcement is considerably more guarded. Many options would “reduce the length and intrusiveness” other than a simple stat dec, and we might even still have to wait two years before starting the process.

While the Committee proposed reforming the Equality Act, to restrict the circumstances in which we could be excluded from women’s spaces, the announcement refers specifically to the Gender Recognition Act and procedure under it. The Equality Act was never on the table.

Suzanna Hopwood of the Stonewall Trans Advisory Group said “I am really pleased… the current system is demeaning and broken.” Indeed it is, and no nearer being fixed now than nearly a year ago.

So it is false for A Woman’s Place to claim that self-ID would mean becoming a woman simply because you sign a form. It is false for them to claim that anyone’s rights would be affected, apart from trans people’s. They are fear-mongering. Making such statements as they do, they have an obligation to establish the truth: if they are ignorant of it, that does not excuse their circulating falsehoods. People should ignore them.

Unfortunately, the Sunday Times is spreading the misrepresentations, fear and lies: “Men identifying as women [they mean trans women] were permitted to swim in the ladies’ pond on Hampstead Heath in North London and a woman with a fear of men was locked in an NHS women’s psychiatric ward with a burly 6ft-tall transgender patient.” They also wrote, “Ministers have vowed to defend women’s rights to exclude transgender people from female-only spaces such as changing rooms, lavatories and swimming sessions. In a significant victory for campaigners, the government has promised not to put the rights of those who identify as women ahead of those who are biologically female.” But there was never any intention of changing the Equality Act. The campaigners have been wasting their time, and won nothing.

That Sunday Times article quotes the government’s response to a petition from gender critical feminists. It adds nothing. “That does not necessarily mean we are proposing self-declaration of gender,” says the response, but they are having a consultation: why consult, if you have decided the outcome beforehand? The Guardian was initially cozened into publishing the same non-story, including an insulting comment from A Woman’s Place, but later added a comment from Stonewall putting the record straight. “The exemptions to this rule only apply to sensitive and complex services, for example refuges, where services can exclude trans people if they can demonstrate that is absolutely necessary, for example if inclusion would put that trans person at risk. However, these exemptions are rarely used and in almost all situations trans people are treated equally as is required by our equality laws.”

That Sunday Times article is a propaganda coup for the transphobes. There was no victory. There was no change proposed to the Equality Act. But they have spun this as them winning concessions pledging to retain the Equality Act exemptions, and their staunch press allies have gone along with it. Further, they have spun those exemptions as a right to exclude, which only applies in restricted circumstances. We need to point out how narrow the exemptions are.

There were a lot of good answers to the consultation, now published and summarised here.

In December 2019 the Scottish government published a draft bill and a further consultation.

The Equality Act and trans people

These are the provisions of the Equality Act 2010 referring to trans people. There is extensive guidance and 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 confused.

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”.

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.

MP on self-ID

My MP is not interested in trans issues. I feel disrespected. He takes two weeks to even pass on my concerns. Then I asked to see him, he took eighteen days to respond, ignoring that request. He will pass on my concerns again.

On 5 March, I wrote,

The Scottish government has now completed its consultation, but the English consultation has not yet started. When will it start? Now, it is an issue, with the papers printing endless stories about trans people, many in a negative light. They bias the argument against us by picking inconsequential stories and giving them undue prominence. A small but vociferous group of feminists violently objects to trans women. When people say trans women like me as a threat, they may provoke violence against me: if they see me as a threat they feel justified in defending themselves against me.

There is a tiny number of GRCs issued, 4712 to September 2017. We are a tiny group of people, but we are a symbol in many people’s minds for many feminist or culture-war issues. I want not to be noticed, because I fear violence.

I feel that when the consultation is completed, the passions will subside slightly. People will go on to debate other things. Until it is completed, now self-ID has been proposed it is a live issue. The more people get radicalised around it, the more danger I am in.

Will you put my concerns to the relevant authorities?
Will you find out what is causing the delay, and when the consultation might commence?
Will you speak out for self-ID, and against the fear-mongering and rabble-rousing against trans people like me?

On 20 March Tom wrote to Baroness Williams of Trafford, who responded on 23 April. “I am sorry for the delay in my responses,” but not for the delay in the consultation. The Government remains committed to taking action to remove the barriers faced by transgender people. What action? Discussions are ongoing about the content and timing of the consultation… we are continuing to engage with a wide range of stakeholders… including transgender, LGBT and women’s groups, to understand better what they want from the consultation.

I quoted this to a civil servant who said it means “kick it into the long grass”. Tom himself ignored my questions, just sending the response to me on 25 April. So I wrote to him again:

That letter does not address my concerns. In particular, why is a consultation promised for Autumn 2017 in July 2017 still not launched? So, how long will this pre-consultation “engagement” last?

And you- have you familiarised yourself with what self-ID means? It is a minor administrative change which only affects trans people. Will you speak out against rabble-rousing against trans people?

Can I see you about this?

No. Well, he does not propose how I could see him. He is encouraged by the commitment to equality, and hard work is underway to build a society that celebrates and benefits from the talents of everyone. No, actually, hard work is underway to set us against each other by creating hostile environments for immigrants, benefit claimants, and now trans people. The consultation, to be published in due course Ha! will aim to relieve the bureaucratic and medical burdens for those who want to change their gender… and reduce the stigma faced by the trans community.

He has written to the Minister for Women and Equalities, not Justine Greening who announced the consultation in July last year, nor Amber Rudd her successor, but Penny Mordaunt.

The UK is a world leader for transgender rights, he says. No, actually, it is behind Malta and Colombia, which have self-ID.

The hostile environment is for immigrants and benefit claimants. Rather than paying fair benefits to people in need, the government spends more on sanctions, often unjust, arbitrary decisions taking benefits away and causing the rise in need for food banks. Sanctions cost more than they save. The government’s cruelty costs money. David Davies MP is a backbencher, a mediocre man who fails, usually, to stir up hatred, but this time is working hard with particular feminist groups. What are they doing for transgender equality? Nothing. Anyway, in March next year with Brexit our human rights will end.

Gender equality

Long before the Equality Act, trans people used the Sex Discrimination Act to argue rights for ourselves. I met an accountant who, fed up with going to work male, went in a skirt suit, and was dismissed and walking home an hour later; but others kept their employment rights. Arguably the statutory instruments drafted to regulate trans rights reduced them.

The Equality Act protects “transsexual persons” who “propose to undergo a process for the purpose of reassigning sex”. The heading is “gender reassignment” so at best the law makes disentangling sex and gender difficult. They are different, but not in law. Medical jargon is the same, referring to the “homosexual transsexual” suffering from “gender dysphoria”.

The Act also protects men and women from discrimination on the grounds of sex, with some exceptions for employers such as women’s refuges. However it only prohibits “less favourable” treatment, not different treatment, which is why arguments that women should not have to wear skirts to the office fail. Making women wear skirts is not less favourable than making men wear jackets and ties. So different treatment is enshrined in law.

That means the law supports the Patriarchy in saying there are two genders, and that generally they are mapped onto the two sexes, though a tiny number of people may swap from one to the other. How may we be liberated? One way is to change the idea of gender so that it is not thought to restrict capacity, such as by the Sex Disqualification (Removal) Act 1919, which removed restrictions on women practising as lawyers or civil servants, or on juries. There I go, conflating sex and gender again. There is no reason why women should not be lawyers.

The other is to divorce the concept of gender from that of sex. Men can be feminine, women can be masculine. There is no characteristic, aptitude, quality, virtue or vice peculiar to one sex, or which is not equally good or bad in both. We signal our gender with our clothes and body language.

No-one should be treated badly because another disapproves of their gender presentation or their gendered behaviour. No-one should have the right to enforce gendered behaviour on another.

Arguably, the very concept of gender is oppressive because it is imagined to fit the sexes- man/masculine, woman/feminine. Ideally, society should abandon it; but while it exists people should be protected from discrimination because of perceived gender.

So my Equality scheme would prohibit discrimination on the grounds of sex. Men and women should not be treated more or less favourably, and any necessary exceptions should be specifically defined, such as the genuine occupational requirement for some jobs, or the All-woman shortlist while women are underrepresented.

It would also prohibit discrimination on the ground of actual or perceived gender: the signals we give, the behaviour and the underlying attributes and desires. An employee should be judged on their skills and abilities, not on how they look. This would permit a wider range of gendered behaviour in both sexes, and gradually strip away the link between sex and gender, men and masculinity, women and femininity. Where we generalise and stereotype people because of their sex, and disapprove of those not conforming to our stereotypes, the law could intervene and guide us away from that. The law would be applied in the worst of cases, and would guide society and people’s ideas of what is acceptable so that the stereotypes fell away.