I had assumed it was just the provision of services bit of the Equalities Act 2010 that was the Trans-gotcha. A quick search of the act for the phrase transsexual reveals far worse. Sport is the first hit – section 195, or page 122 if you’re reading the PDF version.
A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—
(a) fair competition, or
(b) the safety of competitors.
Fair competition? You’d think they’d at clear this one up in the explanatory notes but no:
It also makes it lawful to restrict participation of transsexual people in such competitions if this is necessary to uphold fair or safe competition, but not otherwise.
Nothing about having certain well established rules (Such as the International Olympic Committee ones) relating to transsexual people. Just “restrict participation”. As for safety… are we a threat to people? Really? Can anyone actually back that one up in the slightest without descending into the worst transphobic stereotypes possible?
Next up is schedule 9 on page 170. I wasn’t clear in my last post if you could be discriminated against because you might be trans even if you’re not. Well, it seems being a butch dyke or having a spot of facial hair due to Polycystic Ovary Syndrome is now something you can be discriminated against for when applying for jobs:
…the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
I can’t quite wrap my head around that one so I may have the interpretation wrong as it’s giving me a headache just trying. I’d appreciate someone with a legal background trying to unravel it. The same page also has a whole host of exclusions relating to sex, sexuality and gender identity if it’s a religious organisation that’s the employer, I think we all know about those ones already.
This one really annoys me as I thought the excellent work GIRES did put this one to bed:
A person does not contravene section 39(1)(a) or (c) or (2)(b) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces. (2) A relevant requirement is… (b) a requirement not to be a transsexual person.
Right. Get this: I can’t speak for the other branches, but in order to get into and stay in the Army, you have to pass physical tests. Running up hills in the carrying insanely heavy backpacks with someone yelling at you telling you it’s “character building”. The physical fitness standards are (Outside of the infantry) Army-wide and laid down in stone so there’s no messing about if the Physical Training staff don’t like you. You’re either in, or you’re not. If someone is Trans and can pass the physical tests, why on earth would anyone give a rats arse if you’re Trans or not?
Now on to page 224, Communal Accommodation.
A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to… (a) the admission of persons to communal accommodation; (b) the provision of a benefit, facility or service linked to the accommodation.
So next time anyone suspect of looking a bit tranny turns up at a Youth Hostel they can expect to be turned away? Perhaps the NHS will have a new funding crisis due to the need to build special tranny wards. And you can forget sheltered accommodation. Been abused by a partner? Doesn’t matter, you’re a transsexual person now. No councilling, no sheltered accommodation.
So, let us turn to the explanatory notes to see if they clarify things at all. Here’s what’s quoted for section 16:
Example
A female to male transsexual person takes time off work to receive hormone treatment as part of his gender reassignment. His employer cannot discriminate against him because of his absence from work for this purpose.
Ah! Now we’re getting some clarity – whoever wrote this really hasn’t got a clue. I’m not sure how many transmen have needed to take time off work to go an inject themselves with T or change a patch but I’ll hazard a guess it’s not high up the list of worries of the average trans person. I can only guess they might mean going to see a doctor to get a repeat prescription but that’s no different from anyone else on HRT. Why not use the obvious example – surgery?
Further on there’s this gem:
733. A person with a full Gender Recognition Certificate acquired under the Gender Recognition Act 2004 is able to marry someone of the opposite gender to his or her acquired gender. The Marriage Act 1949 imposes an obligation on clergyman in the Church of England or a clerk in Holy Orders of the Church in Wales to marry anyone residing in their parish, or who fits other stated connection criteria. However section 5B of that Act contains an exception where the clergyman or clerk reasonably believes one of the parties’ gender is acquired under the Gender Recognition Act.
There we go, another case of “it’s not good to look a bit trans”. I perhaps have some of this wrong as I don’t have much legal knowledge outside of IT and the Internet and this stuff is hard to read, but the explanatory notes seem to make it clear: Being out just might not be the smart thing any more. I honestly have no idea how this stuff got through parliament without someone noticing how bad it is. End of parliament wash up? More like a whitewash and a chance to push through some quite unwelcome legislation.
An awful lot tends to turn on the words ‘proportionate’ and ‘legitimate’. The communal housing provision you quote is explicitly made subject to those requirements a couple of paragraphs later.
What seems clear is that these cannot be made into a convenient catch-all with the notion that any sex segregated space can exclude trans people merely by being legitimately sex segregated.
The 2 key examples for me are the rape counselling ones where the legitimate aim lies in the provision of therapeutic treatment for cis women in potentially traumatised circumstances, where it MAY be that trans people could be excluded from providing therapy or being involved in group counselling. They do seem to be sufficiently extreme as not to be easily extended to cover more trivial purposes.
My own knowledge of UK law isn’t that great, but the history of UK anti-discrimination legislation has always been that worries over the use of exceptions to essentially defeat the object of the exercise have been misplaced. Hopefully that will be the case here, but some guidance on that potential scope of exceptions would have been greatly appreciated.
Oh and sports safety ? Gender related contact sports does it, since you can definitely argue that male body v female body raises safety concerns in, say, women’s boxing. ‘Transexual persons’ don’t need to take hormones, let alone have surgeries, and this is one of the potentially relevant problem areas.
The trouble with this sort of exception is that it doesn’t actually need to be legal for people to try to use it. We’ve already seen the Gender Recognition Act get misunderstood by many organisations – banks and police for example – so that they demand a GRC for updating names on records or just using a public toilet. Once people get it into their heads that they’re allowed to discriminate against trans people in segregated spaces, they will do so because they believe in their own minds they’re justified in doing so, regardless of if a subjective observer would come to the same conclusion. It’s then up to the person affected to either prove they’re not Trans (Which is I believe impossible to do) or go to court to enforce their rights. I think it’s pretty fair to say that someone who is a victim of domestic violence or has been sexually assaulted isn’t going to want a long, drawn-out court case before they can get basic housing or counselling.
It’s possible to come up with plenty of other situations in which the presence of an individual in a certain space might make people feel uncomfortable. (Anyone that’s gay, certain combinations of ethnic minorities and political viewpoints, visible religious symbolism such as a cross or Burka etc) It would be illegal to discriminate in those situations and the organisation would have to find a way of dealing with it, so why is it necessary to discriminate against trans people?
I accept the aim of the Sports exclusion is valid, but it’s badly worded – it should have in it something along the lines of “in accordance with currently accepted international best practice” or the equivalent legal form and reference the IoS in the notes. (Although the courts are not allowed to refer to the notes in making the judgement – they can only look at the text of the law)