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.