Equalities Act(18 Posts)
Is gender identity a protected characteristic under the gender equality act?
Could anyone direct me to a good resource for this? I think a school is claiming geneder identity is protected, but they have left sex off the list of protected characteristics.
Also can schools record a child's sex as their identified gender on official documentation? Again can anyone guide me to a clear legal explanation of this issue?
Thanks for any help on this.
Someone has to have undergone , be undergoing or planning on having some kind of medical sex reassignment treatment . Then you have the protected characteristic of ‘gender reassignment ‘. Gender is pervse is not covered but may be in the future.
I was of the understanding that gender 'reassignment' was a protected characteristic, but not gender 'identity' in the Equality Act.. At least it is unless the GRA is passed... not sure though - haven't read it in a while
That should be ‘gender identity per se’
Sex is a protected chatacteristic . There are No plans to change that it to replace it with gender identity
The Equality Act 2010 is available online.
A very lazy search brought me to this www.fpb.org/equality-act-2010-protected-characteristics-and-types-discrimination/
"The Equality Act covers exactly the same groups of individuals that were protected by the previous legislation. However, the headings of age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity are now to be known as ‘protected characteristics’."
Hmm... I just read this which seems to say different?
undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one. You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.
The Equality Act says that you must not be discriminated against because:
Of your gender reassignment as a transsexual. You may prefer the description transgender person or trans male or female. A wide range of people are included in the terms ‘trans’ or ‘transgender’ but you are not protected as transgender unless you propose to change your gender or have done so. For example, a group of men on a stag do who put on fancy dress as women are turned away from a restaurant. They are not transsexual so not protected from discrimination.
Someone thinks you are transsexual, for example because you occasionally cross-dress or are gender variant. This is known as discrimination by perception.
You are connected to a transsexual person, or someone wrongly thought to be transsexual. This is known as discrimination by association.
Gender reassignment is a protected characteristic, not gender identity. A person is protected if they are proposing to undergo, are in the process of undergoing, or have undergone gender reassignment (as in the gender recognition act). This cannot apply to children as you need to be 18 to get a GRC.
The trans equality report recommended gender reassignment be replaced with gender identity in the equality act and Maria Miller ran a private member's bill to this end last year, which ran out of time because the election was called.
Sex is a protected characteristic.
Basic info here.
I don't know about official school records, I doubt they are 'official' in the same way as birth certificates and passports. Stephanie Davis Arai was posting the other day that she is about to publish a schools guide to legal stuff like this.
Guardian that page says about gender reassignment:
It is discriminatory to treat people who propose to start to or have completed a process to change their genderless favourably, for example, because they are absent from work for this reason.
So no mention of a GRC. This is why I am confused. The explanations justvseem to discuss 'decision to live or transition ' as not being able to discrimibate against.
Are you only protected if you have a GRC?
This from BBC article says: At present, the guidance issued to service providers - women's refuges, for example - by the Equality and Human Rights Commission states: "Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so."
Is This where it is confusing, is the guidance current from the current legislation? If so why?
'Gender reassignment' does not require any medical treatment or surgery. You currently need:
- to be over 18
- a diagnosis of gender dysphoria
- 2 x medical reports - one with the diagnosis, one detailing any treatment you have had (and if you haven't had surgery you need to say why but 'I decided surgery was not for me' appears to be a good enough reason)
- to 'live as' your acquired gender for 2 years
- £140 (fee waiver for low income)
Sorry I meant is the equality and human rights guidance different from current legislation? If so why?
It's an interpretation (and thus open to challenge) of the clear-as-mud legislation and is up to date.
The EA refers to transexuals who are (were!) widely understood to be those who transition full time (medically or not) to 'live as' the opposite sex. It's a sign of how rapidly things have changed.
The actual wording of the EA says:
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.
And the explanatory notes say:
41.This section defines the protected characteristic of gender reassignment for the purposes of the Act as where a person has proposed, started or completed a process to change his or her sex. A transsexual person has the protected characteristic of gender reassignment.
42.The section also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.
43.This section replaces similar provisions in the Sex Discrimination Act 1975 but changes the definition by no longer requiring a person to be under medical supervision to come within it.
A person who was born physically male decides to spend the rest of his life living as a woman. He declares his intention to his manager at work, who makes appropriate arrangements, and she then starts life at work and home as a woman. After discussion with her doctor and a Gender Identity Clinic, she starts hormone treatment and after several years she goes through gender reassignment surgery. She would have the protected characteristic of gender reassignment for the purposes of the Act.
A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act.
So it would appear some sort of 'process' is necessary but the law does not define what the process should be. In addition, a person is protected if they are perceived to have this protected characteristic, even if they don't.
There are exemptions for single sex services to exclude trans people where it can be shown to be a proportionate means of achieving a legitimate aim but more and more, organisations are afraid to use them because the onus is on them to show they are being proportionate and that their aim is legitimate.
The Equality Act 2010 is the current legislation.
The 8 protected characteristics are;
Marriage and civil partnership
Religion or belief
Gender reassignment is a protected characteristic from the moment a person decides to start the process. They dont actually need to do anything to qualify, and do not need a GRC. They only have to state that they propose to undergo a change.
Thank you pencils.
The examples do not refer to obtaining a GRC just passing and living as, are transsexuals protected without a GRC under the current act?
Advice being given to schools it seems is based on the guidance which basically does treats GI as protected.
Can schools use the single sex exemptions to allow for separate changing facilities?
Schools are legally obliged to provide single sex facilities for girls over the age of 8.
Many girls from different backgrounds cannot share intimate space with members of the opposite sex due to their culture or religion. Plus most teen girls want privacy when they go through puberty and start menstruating.
Technical Guidance for Schools in England;
Thank you DJ that's really helpful. Particuarly the sections on exemptions for single sex spaces (section 9)- you'd never know that was law in the current climate!
The official guidance is interesting, PencilsInSpace.
A person who was born physically male decides to spend the rest of his life living as a woman. He declares his intention to his manager at work, who makes appropriate arrangements, and she then starts life at work and home as a woman.
Apparently I (a man) can "propose" to undergo gender assignment right now, then after discussion with my Head of Department I can start using the women's toilets at work? That seems fairly close to subjective identity, because "proposing" is so vague. (After all there's no guarantee that I'll ever actually undergo gender reassignment.)
I can see why Lily could credibly threaten his school with legal action.
And of course it's almost quaintly historic now--predicated upon a gender binary. Presumably the new bill if it appears will have to cater to non-binary and gender fluid people.
Presumably the new bill if it appears will have to cater to non-binary and gender fluid people.
I’m not a lawyer, but how the hell will they get this enshrined in law?
If transitioning from one sex to the other is reliant on the definition of gender as being innate?
How can one person’s gender be innate, and another’s mutable?
Which is it? Is gender innate, or is it changeable?
This is where the C 16 bill didn’t stand up, despite them passing it. They never actually legally identified the meaning of the word gender. Only gender identity or gender expression.
A crucial part of this will be to force them to define gender.
It will have to be something that is socially constructed.
In which case, surely you can’t pass laws that effect biological sex based protections, on the basis of a cultural, and therefore changeable, interpretation of biological sex.
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