Sunday, 1 August 2010

Equality?

From the UK Equality Act 2010 :
Equality Act 2010 (c. 15)
Schedule 3 — Services and public functions: exceptions
Part 7 — Separate and single services

Gender reassignment
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.

Equality Act 2010 (c. 15)
Schedule 9 — Work: exceptions
Part 1 — Occupational requirements
(3) The references in sub-paragraph (1) to a requirement to have a protected
characteristic are to be read—
(a) in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);
So what does that mean? It means that there is one "protected" class where protection is explicitly removed, not granted. It means that a gender recognition certificate is not worth the paper it's printed on. Rather than being a recognition that they are of the target gender, it's a nullity, as the law states that they're not, not really. This is made clear in the explanatory notes.:
Gender reassignment: paragraph 28

749. This paragraph replaces a similar provision in the Sex Discrimination Act
1975.
Example
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.
...
Schedule 9: Work: exceptions
Part 1: Occupational requirements

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.
The provisions of the Gender Recognition Act 2004 that over-rode that 1975 act have now been repealed. There is a distinction between "women" and "transsexual persons with (or without) gender recognition certificates" now.

Now of course, who could reasonably object to a councellor whose appearance might be upsetting to a rape survivor? In such cases, we cannot afford to be too precious about rights of employment, we must consider the victims first and foremost.

But it's not about appearance. It's not about the victims and their feelings. It's about transphobic prejudice. It's now legitimate to refuse help to victims who are "transsexual persons" because of the transphobia of others. There are other consequences too.

Good

Bad

Noted "Womyn born Womyn" Female At Birth founder of the New Radical Lesbian Feminist Front, dedicated to keeping Trans women out of women's space, including rape crisis centers. A "real" woman who it is illegal to discriminate against.Not a woman, but a transsexual person. Someone who it is explicitly legal to discriminate against as their presence - either as councellor or as victim - may be too upsetting to other rape victims.

As for those women transsexual persons with gender recognition certificates who have been raped... I guess they're out of luck. The "Equality Act" is anything but.

21 comments:

Anne O'Nonnymouse said...

Zoe, thank you for pointing this out... the elephant in the room in UK legislation. Nobody else seems to want to discuss this and how intersex people have been left out of the Equality Act 2010.

Heli said...

Hi Zoe

It seems that the frost has returned in several countries including Finland. I suggest that you should write a complaint to European commission about the dismissal of protection for transsexual individuals. In that case the law is against EU law, the Charter of Fundamental Rights and it has been binding since the Lisbon treaty.

In Finland we got a renewed census act 661/2009 and since 1st of March every transsexual woman or man who wants to have gender recognition and falls in the prerequisites (not married, sterile, adult, citizen or resident and diagnosed psychiatric diagnosis of ICD-10 F64.0) will get an entry about his/her transsexual gender recoignition in the Census and that can be disclosed to third parties if they ask it for the "protection of rights".

I lodged a complaint in the commission.

Here's some links you may enjoy

http://ec.europa.eu/community_law/your_rights/your_rights_forms_en.htm

http://www.europarl.europa.eu/charter/pdf/text_en.pdf

In your case I would also invoke the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32000L0078&model=guichett

Heli Hämäläinen

Katrina Rose said...

Was this monstrosity an early bit of work from the Cameron government? Or was it a last dangling bit of excrement from the Brown government?

Cheryl said...

Thanks for posting this, Zoe. It is a salutary lesson that the battle is never won.

Part of the problem here is that trans rights are often heavily dependent on having sympathetic champions in the legislature. With the retirement of Lynne Jones, and Evan Harris losing his seat, there are not enough MPs to right the trans corner.

Another major issue is that this travesty is absolutely a creation of the previous Labour government. Cameron's crew have just rubber-stamped it. It is much harder to fight an issue if you are being stabbed in the back by the party that is supposed to be your best ally.

Ana W.-L. said...

Heli, if you read the explanatory notes for the recent Finnish Census Act, it's pretty clear that this new marker was not intended for discrimination, quite the contrary. The purpose of the marker is to make it possible to limit access to one's previous name and person-ID, so that one would not be accidentally outed as a transsexual. Of course, this is an exceptionally stupid way to achieve this. Furthermore, it only protects the ID and name one had immediately before gender recognition, so people who change their names at the start of the RLE seem to be not protected...

Heli said...

Ana

I have read the explanatory notes but in thoughoutly rotten and political Finnish jurisdiction the explanatory notes are weak source of law. http://ec.europa.eu/civiljustice/legal_order/legal_order_fin_en.htm

What matters is written law and the customary law especially in the field of contract law.

So the law should be read as it is written. And I cannot find any grounds for that separation between ciswomen and transwomen and any kind of registration.

If the purpose of that registration is, as you say, avoid the reuse of that personal identification number, it is relatively easy to implement more friendly way. Transsexual individuals are not the only groups who can get a new personal identification numbers so please do not make yourself an 1diot here. That reason is only an east european styled stalking horse, but as an useful id1ot you think it is great to be registered. The Nazis registered all their minorities before they took care of their rights.

Heli said...

Returning to the subject again: I know many transsexual individuals who have had their marriages annulled in order to obtain a female birth certificate amendment. As we all know already the British system does not allow any changes in the register entries, the only document they will get is that amendment. In that case, particularly, that prerequisite of annulment of the marriage is unfair.

What if all married transsexual individuals stay in their birth sex/gender? I guess that is a reasonable option in the case that gender recognition turns out to be a dead end.

Anonymous said...

The question now being asked in the UK is why so few are taking up GRCs. Many of course are married (and when post op are in same sex marriages!).

However, the recent 'Timbrell' pension appeal judgment seems to be treating Ms Timbrell (no GRC) as a female for pension purposes when legally married to another woman (both pre and post GRA). Maybe this might help....

Our best hope of equality is with the Courts as we now have no support in Parliament.

Paula

Andrea said...

Please, please tell me there's going to be protests about this. D:

*angry*

Anonymous said...

The example might actually be the easiest bit to challenge - for example, surely it's disproportionate to run just the one group without providing a trans-inclusive one where resources allow? Getting a precedent to that effect would be a good start.

PC

chickof78 said...

When this legislation was passing through parliament under the last Labour government I contacted my MP to ask him to raise objections to the trans elements of the bill. The issues highlighted here are important, but the lack of protection for young trans people and what kind of trans people are protected and excluded are also issues.

I have used the services of a rape crisis centre, and as a cis woman I found accessing them pretty unproblematic. I think they should be gender inclusive and that it is a basic human rights issue. I think legally sanctioned discrimination of this kind is disgraceful. It is worse than segregation on the basis of race or sexuality because you can bet separate provision will not be made for trans people. No doubt there will be less of an outcry from our LGBTQ family about this than about the lack of civil marriage in the UK. No surprise to anyone that trans rights get the seat at the back of the bus again is it?

Thanks for blogging about this! Totally up for protesting!

SG

Zoe Brain said...

SG - sorry that you had to go through such an experience.
In all the fighting in the defence of great causes, it's all too easy to forget that they involve real people. Real victims.
Thank you for thinking of others.

"I have used the services of a rape crisis centre..."

Such a typically British understatement of it. Hug, Ok? Hugs and thanks once more.

rabbitliver said...

What are the pictures under the good/bad headings supposed to be illustrating?

Zoe Brain said...

Rabbitliver - the fact that the womyn-born-womyn female at birth is so obviously unable to possibly upset a rape victim because of her essential butch femininity, while the transsexual person is so obviously "really" one of the "Menz" who is mentally ill.

Who could look at those pictures and think otherwise? I'm sure all members of the New Radical Lesbian Feminist Front would agree with that.

Certainly the drafters of the Equality Act 2010 do.

rabbitliver said...

It seems like you are suggesting that because she is butch, she is less of a women. Her views may be abhorent but why question gender identity because of the way she looks?

Zoe Brain said...

rabbitliver - how could anyone possibly question her gender identity, least of all me? After all, she's a Womyn born Womyn" Female At Birth founder of the New Radical Lesbian Feminist Front, dedicated to keeping Trans women out of women's space, including rape crisis centers. A "real" woman who it is illegal to discriminate against. She has the law on her side, does she not?

Anonymous said...

What's the fuss about? The Equality Bill does not repeal the GRA, so section 9 of the GRA still applies. A person acquires all the legal rights of their new gender.

That means that "gender reassignment" as a protected characteristic does not apply (unless of course the individual has had a change of heart and decided to revert to their birth gender.)

"It means that a gender recognition certificate is not worth the paper it's printed on."

Not so. The GRC is valid and will remain so.

Please be careful with your interpretation of law as this has already caused a lot of unnecessary stress. If you are going to make such bold statements, I suggest it would be best to test them in court first.

Liz Church

William Rhys said...

I strongly echo Liz's comments above. Nothing in the GRA is being repealed. GRCs will still be valid.

What the Equality Act does unfortunately do is make some exceptions to unlawful discrimination very clear, and as you point out, discrimination will be allowable in the provision of single sex spaces, and in 'genuine occupational qualifications'. However, it's only allowable if certain conditions are met, and I think the important thing will be to continue to challenge situations where this sort of discrimination is being exercised indiscriminately (sorry, no pun intended). Ie, where they have not shown 'it is a proportionate means of achieving a legitimate aim' (single sex services), or where the treatment is not 'reasonable' (genuine occupational qualifications).

I realise that these sort of challenges are in themselves stressful. But in general Liz is correct - a person does have all the legal rights of the new gender. The problem is that there are exceptions to that, which society currently views as necessary. From a pragmatic point of view, one of the best things we can do is to try to ensure that these exceptions aren't used without due thought for what the law actually says.

Darren Newman said...

Just read this on a link from Jack of Kent. I'm an employment lawyer with a particular interest in the Equality Act and this problem had previously passed me by - thanks for highlighting it.

The key legal(istic) point seems to me that the Sex Discrimination Act, when talking about genuine occupational requirements in relation to gender reassignment specifically excluded situations in which a Gender Recognition Certificate had been awarded (S.7A(4)). That meant that where someone had acquired a new gender they could not be excluded by a GOQ on the basis that they had not always been of that gender.

However Schedule 9 of the Equality Act seems to drop this exception with the result that theoretically occupational requirements could be used to exclude someone even after they had been awarded a GR certificate. I say theoretically because of course a tribunal would have to conclude that such an exclusion was reasonable and I don't think the explanatory notes give a good example of what a tribunal would be likely to accept.

I think the omission is more likely to be an accident than deliberate. There are many slips and errors in the Act that will be coming out of the woodwork for years to come. Let's see what the Government does to either correct the slip or explain why the Equality Act should erode the rights given under the Gender Recognition Act.
If anyone wants t take the discussion further with me directly I'm on twitter as @DazNewman

Cheers

Darren Newman

Zoe Brain said...

Darren - I must beg to differ regarding it being "accidental".

See this article in the Grauniad.

It's not all bad news, however. The British Columbia supreme court in Vancouver recently overturned an earlier decision of the human rights tribunal that Vancouver Rape Relief had breached the human rights code when it refused to allow Kimberley Nixon, a male to female transsexual, to train as a counsellor of female rape victims.

The requirements under the Gender Recognition Act for those resident overseas were initially that they be diagnosed by a "qualified medical practitioner."

Then, this was changed to a "qualified medical practitioner." registered with the BMC. It was difficult to find such doctors overseas, but there were (literally) one or two.

Now it's "qualified medical practitioner." registered with the BMC and licensed to practice in the UK - something that overseas doctors cannot be.

Combine this with the fact that most of the GRP's list of "recognised jurisdictions" have no mechanism for recognising the gender of those born in the UK, and UK citizens resident overseas are very effectively excluded from being covered by the GRA.

This I believe is accidental - though there's no chance of the GRA being amended to ameliorate the situation. The Equality Act section though is quite deliberate.

A Vancouver transgender activist says that the pharmacy owned by the Vancouver Women’s Health Collective has refused to fill her prescription. Jamie Lee Hamilton told the Georgia Straight on July 14 that Lu’s: A Pharmacy for Women denied her service because she wasn’t born female.
There is caselaw on this. You, as someone not particularly well-versed in this very specialised area may not have been aware of it; but I'm quite sure the drafters of the legislation, and the explanatory notes, were. They knew exactly what they were doing.

chickof78 said...

@Darren
I sit on the employment tribunals in the UK, and have for 6 years. The genuine occupational requirement opt out is clearly deliberate because it was included for gender reassignment but not other grounds where it might conceivably be desired by some (eg. in my PhD research I found a care home using language ability as a proxy for selection on racial grounds in a dementia care home predominantly used by SE Asian people because many service users had experienced racism from white people. Do you think it would be reasonable to argue that not being white was a GOR in this case?).

I am not sure what the impact of the GOR clause will be because I have yet to sit on a case where it has been successfully argued. The thing is whether it is successfully argued or not the fact that it exists in law means trans people are treated as suspect, questionable and inauthentic. The authenticity of their gender is legally subject to examination. This reinforces they myth that their gender is not as 'real' as the gender of a cis person. The suggestion that the lawmakers 'accidentally' slipped it in is problematic because it ignores/overlooks the systematic oppression of trans people.

chickof78