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Enforcing the Equality Act

87 replies

RedToothBrush · 30/07/2019 09:36

www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/equality-act-role-of-ehrc-report-published-17-19/
Fundamental shift needed for enforcing the Equality Act

The Women and Equalities Committee publishes report on Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission.

The individual approach to enforcement of equality law is no longer fit for purpose, says the Women and Equalities Committee in the report of its year-long inquiry.

The report argues against relying on the individual approach, dating back to the 60s and 70s, and recommends that this must be replaced by a new approach which provides a sustainable deterrent and tackles institutional and systemic discrimination.

While individuals must still have the right to challenge discrimination in the courts, says the Committee, the system of enforcement should ensure that this is only rarely needed: this will require a fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

Recommendations from the Report
The report’s main recommendations are:

Develop a ‘critical mass’ of cases to inform employers and organisations about their legal duties and make adherence to existing equality law a priority for all organisations
Move away from relying so heavily on the current model of using individual litigation to create precedents
Make obligations on employers, public authorities, and service providers explicit and enforceable
Ensure that all who have powers to change the way in which employers, public bodies and service providers operate use their powers to eliminate discrimination and to advance equality
The EHRC must refocus its work and be bolder in using its unique enforcement powers.
The Committee recommends that the Government’s Labour Market Enforcement Director should play a fundamental role, alongside the proposed new single labour market enforcement body.

If such bodies acted consistently on their obligations, then the EHRC could become the strategic enforcer that it should be.

Finally the report recommends that the Government must also make this fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

I'm yet to delve into the report itself, but I do wonder about the EHRC itself and its capability to do this and the danger of it having too much power and being at risk of regulatory capture, and I wonder whether this will give lobby groups more power too - which might be either good or bad from a woman's point of view.

I think it's probably accurate to say there is an issue over enforcement of the Equality act, but part of that is down to definitions and understanding of what the equality acts is supported to do not being well understood.

I have mixed feelings about this and am unsure if it's good or bad.

OP posts:
howard97A · 30/07/2019 19:26

The recommendation to give more power to EHRC is very scary.

The EHRC response to the GRA consultation was everything that stonewall could have wished!

www.equalityhumanrights.com/sites/default/files/consultation-response-gender-recognition-act-18-october-2018.pdf

HumberElla · 30/07/2019 18:46

Yes Mangoes that is the stark staring hypocrisy that puts the whole shebang into immediate focus.

Everyone is mangling language and law and society into knots to achieve ‘equality’. But as soon as a certain class of folk stand to lose out, well it’s perfectly clear cut, simple and entirely non negotiable.

MangoesAreMyFavourite · 30/07/2019 18:15

Been reading off and on all day. It's such a tangle and mess but the peers of the realm are quite fine thank you very much with the inheritance exception written into law.
Us common women folk have to go through all this just for our personal safety and dignity.

SonicVersusGynaephobia · 30/07/2019 15:43

Oh Blush I see I was so slow in reading that Dr Nic was already on my point and explained it 100 times more clearly!

Other thoughts -

29.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs. (Paragraph 168)

I am concerned by the involvement of the Government Equalities Office in issuing a statement about single-sex services - aren't GEO one of the main drivers of all the gender-neutral and TWAW enforcement in all Government departments?

HumberElla · 30/07/2019 15:34

Thank you Red that’s amazing work. I’ve just read it all at speed but am going to come back to to it and digest properly.

Somewhere in there it states that the law is clear, however the interpretation is not. I would have to disagree with that as I still think that a GRC does not change a persons sex in reality and so it should not change ones sex in law either. Neither is it clear in law how someone considering getting a GRC should be treated. There is lots to untangle here and ultimately the definition of SEX should be limited and in my opinion very specific.

DoctorW that’s great to hear you are on this. More power to you.

LizzieSiddal · 30/07/2019 15:14

I have only got to this bit..

168.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs.

Shock indeed!

Am off to do a little happy dance and will read the rest later.

Thank you so much for this Red

LangCleg · 30/07/2019 15:11

It also explains something of the backlash against the concept of rights which is coming particularly from a more working class culture.

I concur and it's a vital point.

Many working class people do not like contact with institutions (including those purporting to be looking out for them) because their perception is that things will be done to them rather than for them and they often do not feel their lives are better for it. This includes using institutions to assert their rights.

kistanbul · 30/07/2019 15:05

The report looks at whether there are problems with how sex and gender are used and defined (or not defined). It appears to have concluded that there is a problem and calls on EHRC to fix it. The role of the report is not to offer solutions, but rather tell the responsible body to recognise and fix the problem. That's why it doesn't address these issues.

niceberg · 30/07/2019 15:03

Thank you so much red for bringing this to FWR. I am feeling very positive. One more non-ignorable news story and hopefully a force for real positive change.

Original poster
RedToothBrush · 30/07/2019 15:01

The words Sex and Gender need to be untangled and people taught to use them appropriately.

That would be a massive step forward.

OP posts:
MIdgebabe · 30/07/2019 14:55

Star Thank you red, I may be educated middle class but I run screaming from anything legal sounding,

It does read to me like they use the term women to include transwomen most of the time, which like others have said, then leaves me wondering about women’s sports and the like, so I suspect this ain’t over yet.

SonicVersusGynaephobia · 30/07/2019 14:42

Red, you are amazing. Absolutely incredible work.

I am typing as I read through (am probably way behind on the thread!), but a few things that jump out:

David Isaac (Head of EHRC) doesn't even know the Protected Characteristics. He kept referring to "gender" on twitter, even when he was at a Women in Tech (or business?) event which was to discuss discrimination. I have no faith in him.

The section 160-162 talking about the interplay between sex and gender reassignment is very confused. No wonder organisations don't know what the rules are. They talk about "they should treat transsexual people according to the gender role in which they present" but this is problematic because:

a) Not all transsexuals have a GRC therefore legally they should be treated as their birth sex in all circumstances where sex-segregation is used
b) Transsexual is not the term that is being used now and transgender is not anything like transexual
c) reading it makes it hard to understand whether they are saying trans females (ie FtM trans) should be in women'only spaces (which I think they should), or Trans males (MtF)shuld be in women-only spaces (which is what I think they are saying, or at least what I think they want people to assume they are saying).
d) Where do non-binary people go, if not with their birth sex?

This is why terms need to be clearly defined and we need to stop fucking about with language.

I think it's clear what the intent is, but too much obfuscation has meant that it has been deliberately misinterpreted.

Original poster
RedToothBrush · 30/07/2019 14:04

DoctorW, is that an issue of the committee missing the issue - accidentially or deliberately?

Or is it a question of them too getting caught up in not properly understanding equality law and therefore illustrating their own conclusion that the conflation of sex and gender in law is a total car crash no one understands?

If you look at paragraphs 157 and 158 there is a question raised specifically at what single sex was - which then had exception laid out in para 160. Para 162 is essentially at odds with para 160 in many respects. The issue is that the public have no way of knowing the difference between a single sex service with exemptions and a single sex service without exemptions because of the terminology, rather than what equality law says. Which ironically, removes the ability of women to choose when they decide to access a service, which might inadvertantly be discrimatory in its own right on the basis of sex or religion...

This paradox also seems to have been reinterated in KIS's testomony in para 176.

I think perhaps this might be the heart of the problem rather than the WESC seeming to support mixed sex facilities.

I note that in para 160 where there are examples of exemptions, a specific reference is made to dormatories which I find encouraging because that would by default include anything from prisons to guides to hospital wards.

It doesn't include changing rooms, intimate care nor sports as far as I can see which I do feel is an ommission.

On the whole I lean towards the benefit of the doubt during the course of getting bogged down in legalise rather than something more because of context and other references. I do hope this is something that can be pinned down and tackled though to clarify the position.

I personally think that the conflation of sex and gender across the entire public sector - and having both recorded (possibly with an opt out option for both) - is something that needs to be done, with a promotion of the point that the two are not the same thing but each have equal weight and importance in equality law.

OP posts:
Datun · 30/07/2019 13:56

Nicola Williams and redtoothbrush having a go at the women and equalities committee who quote Barracker.

Now there's a bloody dream team.

BernardBlacksWineIceLolly · 30/07/2019 13:47

thanks Nic, great to hear you're on the case Flowers

This caught my eye in chapter 7

many Clinical Commissioning Groups were taking a gender-neutral approach, reflected in comments like “[A]ll our commissioned services are for men and women equally”

what, breast cancer screening? impotence treatments? Confused

DoctorW · 30/07/2019 13:32

Nicola Williams from Fair Play For Women here.

I see this an excellent and much needed opportunity for the balancing of the conflict of rights based on sex vs gender to at last happen. New Statutory Code on the use of the single-sex exemptions is long over due and will replace the out-of-date 2011 EHRC guidance that was written without due consideration on the impact of women.

The EHRC interpretation that single-sex services should include transsexuals based on their gender preference undermines the concept of single-SEX. It is very disappointing to see WESC repeat this assumption in their report that a single-sex space for females is still considered single sex if it includes males who identify as females. (See paragraph 162 in the WESC report). WESC have failed to make reference to the 2018 updated guidance by EHRC that makes it very clear that transwomen without a GRC are to be considered male when it comes to sex discrimination and use of the exemptions (link below). The legal and social meaning of sex must be made clear in the new guidance because sex is the protected characteristic that underpins the rights of women and girls. Without this word we can't speak of or fight for out sex-based rights.

It is also crucial that the scope of the new guidance moves beyond just women's refuges. Women and girls their sex based rights to privacy, safety and fairness in all areas of life. Sports, changing rooms, prisons, overnight accommodation, intimate care etc.

Fair Play For Women and many others have pushed hard to extract more clarity on the single-sex exemptions and we will continue to do so over the coming months and expect to be fully involved in policy development. We will accept nothing less.

www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language

Original poster
RedToothBrush · 30/07/2019 13:30

I wish they would add a paragraph, each time, putting it in plain English!

I know they have to be explicit, because it must not be open to misinterpretation, but, get to the point already!

I have to say I find guidance documents, legal documents and government documents something of a strange language which automatically creates a barrier.

It makes it hard for those who don't understand their rights to be able to stand up for them. Its long been a bug bear of mine.

They do need almost 'translating' for a layman audience. That doesn't mean they need dumbing down, just properly explained in a way which doesn't lose meaning which is a real skill and something that gets overlooked.

I do believe this is something which is hugely important.

Its noticable this report itself reflects on why there is a problem with the enforcement of rights:
12.The individual approach relies on an individual to initiate legal action, something that many will not be able to do. Inclusion London set out a range of reasons that echoed evidence from other witnesses: poor knowledge of rights; unwillingness to go up against a large organisation with many more resources; complexity of the law; a lack of specialist legal support; the high cost of legal action and very limited access to legal aid.

My bold.

These three points all point to issues relating to communication skills or lack of knowledge - and are exclusionary in their own way - with anyone with lack of education or lack of english as a first language at particular risk.

It means that rights tend to be the exclusive preserve of the middle classes and above at the direct expense of anyone lower than that. Which is significant particularly at a time of austerity. There has been a notable reflection on FWR on how the trans lobby has been driven by a rather blind middle class too.

Its also reflected in all the euphemisms that surround this trans culture and the erasure of the word 'woman' to be replaced with 'people with cervixes'.

Equality law in the uk doesn't reflect on class and maybe thats a fundamental flaw in its own right, purely because in terms of vulnerability and those most open to exploitation thats where rights are most needed.

It also explains something of the backlash against the concept of rights which is coming particularly from a more working class culture. The argument that we need to protect our rights has no traction because in effect there is a whole bunch of people who are being actively excluded from those rights via other means; notably through communication skills and how information and knowledge is shared in an inaccessable way.

I disgress from the OP, but I do think its a fundamental issue that is dogging this entire debate and has contributed to why so many people have taken so long to wake up to whats happening and how its got so far in the first place.

I do think we need to reflect on it, and yes 'translations into simple english' are essential. And its a very important point to be raising.

I don't think its even a question of 'simple english' - more 'accessable explanations'. Its encouraging people to ask questions when they don't understand, without fear of 'feeling stupid' (this is really complex stuff at time and despite having a nack for these type of documents and actually encouraging the process of decoding them, I don't always understand them) or being labelled as 'bigotted' for not being able to access the language or almost be part of the 'cultural club' as you don't come from 'the right background' or 'the cool generation'.

Why is it that transactivism is never far from word salad or reasoning which gaslights you? Its a deliberate fog to put off those who are not confident in challenging this encoded language which holds top down power, in the very way its phrased and presented.

OP posts:
SisterWendyBuckett · 30/07/2019 13:13

Thank you so much Red, for all your time and effort on this - sterling work, as usual!

I'm feeling more positive that the tide really is turning after reading this - and reading Michael Biggs's paper this morning too Smile

GrinitchSpinach · 30/07/2019 13:08

Oh wow, thank you Red! Star

Will be interesting to see how this shakes out.

thatdamnedwoman · 30/07/2019 13:03

I wonder whether Ruth Hunt got wind of a change of thinking in the WEC and realised that Stonewall's No Debate and TWAW chickens were coming home to roost?

Ali1cedowntherabbithole · 30/07/2019 12:59

Datun maybe we could do an FWR easy read version.

Heck we could have T-shirts & Stickers with the definition of woman and everything. And not be transphobic.

Datun · 30/07/2019 12:37

Thank you red. Thank you so much, for your attention to detail and hard work.

I wish they would add a paragraph, each time, putting it in plain English!

I know they have to be explicit, because it must not be open to misinterpretation, but, get to the point already!

stillathing · 30/07/2019 12:10

So grateful for your work. I have such limited time to do anything due to young kids and job. I'll read your excerpts this evening.

thatdamnedwoman · 30/07/2019 12:10

Yes, absolutely. I have a sense from a quick read of this that we're no longer the feminists on the fringe raising awkward issues that no one really wants to address. This seems to be saying not merely that our concerns are noted but accepted and will form the basis of change.

If we can do this there's hope that places like New Zealand and Australia will be able to halt their apparently unstoppable journey towards adopting a Canadian stance. Maybe we can also help Canada come to its senses.

Ali1cedowntherabbithole · 30/07/2019 12:09

First, Thank You so much Red for your sterling efforts here Thanks I really appreciate the time you have taken to make it easier for the rest of us to access this guidance.

There is a lot to take in, but I am pleased that it is made really clear that single sex provision is legal and necessary in certain situations.

I'm also relieved that they have identified the problems caused by commissioners driving single gender spaces. I'd now like to see a review, at a local level, of all services commissioned in this way. Cash strapped CCGs and councils may plead poverty, but it is clear to me that they need to follow the specific EA provisions, not their preferred version. Inevitably I have concerns about deep regulatory capture here.