What would the impact be if gender identity were the protected characteristic?

Soundbite, single sentence social media really isn’t the place to discuss such complex and sensitive issues, especially where every word is treated as an opportunity to ‘have a go’ (‘poach’) or make a point.

I’ll leave you to it and get back to work. As it happens I have a 900 page bundle (not put together by me!) to get my head into.

Yes this.

It is akin to the statement :

"if you are a heretic, or atheist as some would prefer to say..."

If the law can only define me from within a religious belief system then we live in a religious state.

Here's Maya on the Jaguar Land Rover case.

a-question-of-consent.net/2021/01/02/taylor-v-jaguar-landrover-a-landmark-case-or-losing-sight-of-the-landmarks-of-reality/

Worth watching the PN video of 2017 of Taylor who was always known at work by their male name and no longer describes themself as gender fluid but as a transwoman.

Here's a link to the full judgment in the case.

assets.publishing.service.gov.uk/media/5fc8d559d3bf7f7f5c134ad3/Ms_R_Taylor_v_Jaguar_Land_Rover_Limited_-1304471.2018-_Reasons.pdf

The judgement ended up relying heavily on some words of Vera Baird, the then Solicitor General, recorded in Committee stage in Hansard to establish that gender reassignment was 'a personal move away from ones birth sex into a state of one's choice'.

(interesting that it's 'one's choice')

'Someone who has a gender-identity that is different to that of their recorded natal sex is covered too'.

Yes, it is true that Lynne Featherstone was really pushing for the protected characteristic in the Equality Act to be gender identity rather than gender reassignment but fortunately this was rejected.

lynnefeatherstone.org/2009/06/13/following-equality-bill-through/

"The protected characteristic currently in the list as ‘gender reassignment’ we wanted changed to ‘gender identity’. This is not a well understood area as the Bill clearly fails to understand the spectrum that exists on gender – where people can feel anything from confused, to any degree of transgender feeling, to – at the other end of the scale – gender reassignment and medical sex change. The wording in the Bill around ‘reassignment’ are all about a process leading to change, and so totally fail to encompass the wider range of situations, conditions and feelings that people have about their gender."

So, guess the current muddled wording for GR could have been worse, in order to include the 'confused'...

As an aside, there was also rather surreal discussion about whether Dame Edna Everage would also be covered by the legislation.

publications.parliament.uk/pa/cm200809/cmpublic/equality/090611/pm/90611s03.htm

Thursday 11June 2009

Committee stage 6th sitting

BUT, more importantly, far more clarity is brought by Baroness Thornton, Labour presenting the Equality Bill to the Lords 6 months later in January 2010, explaining exactly whom the protected characteristic of gender reassignment (clause 7) was, by then, designed to protect.

There is a definite switch between the positions expressed at committee stage - where the wooliness of gender identity is being teased out and rejected - and later in the Lords.

It would, I believe, have been a very useful and extremely apposite Hansard-based counter argument in the JLR case had they chosen to appeal. (Also highly relevant to EI in 'boy mode' and 'girl mode'.)

"The point I was making is that that is the range of things that could happen for a transsexual person.

However, Clause 7 does not cover transvestites or others who choose temporarily to adopt the appearance of the opposite gender.

While we do not condone anyone being treated badly because of the way in which they present themselves, it would not be appropriate to provide people who present themselves temporarily as of a gender other than their birth gender with the same protection against discrimination that is available to a person with gender dysphoria, who is somebody who has been assigned one gender at birth, but believes that they are of another gender. That is the point—it is what happens to that person that the Bill attempts to address."

View the Hansard contribution by Baroness Thornton on Monday 11 January 2010

hansard.parliament.uk/Lords/2010-01-11/debates/10011139000077/EqualityBill?highlight=transvestites#contribution-10011149000003

See too the end of this thread for further discussion

www.mumsnet.com/Talk/womens_rights/4200083-For-Women-Scotland-lose-case?pg=13

Gender identity is never defined - and is probably undefineable without recourse to feelings, sexist stereotypes or metaphysical thinking- so, as Hansard records, would make for very poor law.

Gender Expression on the other hand might have had legs and would, in my view, be preferable to Gender Reassignment by covering all those who are gender non conforming, without disturbing the protected characteristic of Sex.

So, for example, a man could dress in feminine clothes, wear makeup and heels, call himself by a feminine name and know that he should not be discriminated against in the workplace for doing so. Obviously he would not need to use female facilities because he would be kept safe in the men's by his protected characteristic of gender expression.

Having said that, does giant boobs teacher in Canada shows that there may be pitfalls to gender expression too?

Again, all differences in human sex development are sex specific. They are included in the EA2010 in exactly the same way everyone else is.

I’m sorry to say that you have some more research to do.

Are you saying that you think people with DSD's don't have a biological sex?

Does Robin now identify as female medical expert as well, lecturing us here on whether people with DSD have a defined biological sex? Do you Robin?

May I suggest that when you are trying to convince people of things it is easier to acheive your goal if you take the time to speel out and reference exactly what you are saying?

This becomes even more true when you are in an environment where a large proportion of the audience is hostile to your beliefs and unsure whether they can trust you.

I’m sorry to say that you have some more research to do.

I wonder if it is still even possible to argue there is no clash between trans rights and women's rights any more!?

It is but not in good faith. There are so many examples now where the rights of TW collide with the rights of women.

How much would it cost her to raise a claim, and how would she pay? Tribunals are supposed to be free if you represent yourself but how on earth is a layman supposed to wrestle with these concepts?

I would love to see a case where a woman (who has been sanctioned for being GC) takes an employer to court as litigant in person. It would be such a good example to other women that you don't need to crowd fund £200,000 to get a result. The more case law from the high profile cases the easier it will be for women following suit.

Is this for real? People with differences in sex development are female or male (ALL DSDs are sex-specific) just like everyone else. I can't actually believe what I've just read!

But people with DSDs do have a sex. So they are covered.

Section 11 ‘sex’.
DSD doesn’t appear anywhere.

Why should it? Everyone is either male or female. This includes people with DSDs. What extra provisions do you think there should be in the EA2010 to cover people with DSDs?

Section 11 ‘sex’.

DSD doesn’t appear anywhere. Under your analysis they are covered when the DSD amounts to a disability. Most intersex folk I know would not consider themselves disabled.

Do read the appropriate section of the Equality Act.

What section? You've said they're arguably not covered. Although they obviously are. Make your mind up. What exactly do you think people with differences in sex development actually are apart from human beings like everyone else?

No. Do read the appropriate section of the Equality Act.

I am pretty sure that -

(1) People with DSDs (I believe that this is the descriptive term that is used by those who try to keep up to date to minimize offence and harm cause by people you call intersex) repeatedly ask not to be brought into the trans debate

and

(2) People with DSDs are simply not an issue in this context due to the fact that the numbers are microscopic and that people with DSDs are the exception that proves the rule. If someone is genuinely believed to be and brought up as someone of the opposite sex then to all intents and purposes they are. Contrast this with trans people, precisely none of whom were genuinely believed to be and brought up as someone of the opposite sex.

As someone who INAL but does advise people in a context that involves interpreting the law and legal decisions I can assure you that if the law is uncertain clients would much rather you make it clear that the outcome could go one way or the other rather than be lied to and told it will go their way when it may well not.

[Pretending for one second that catgender does not exist and that all trans people are TW or TM).

A person's gender identity is their personal and unverifiable claim to be part of a group of individuals that is vaguely defined by reference to outdated and conservative sex-based stereotypes which align with the biological sex that they are not and never can be.

Given a person's gender identity has nothing to do with unchangeable biological sex, and given it can change at any time and can never be measured or verified, there can be no possible reason for it to have any protection in law other than as a belief system.

As a thought experiment, how would you protect 'fashion sense' as a protected characteristic?

You can only codify something into law if you can define it. Gender does not have a legally recognisable definition because it doesn't exist as material reality.
Its a social convention that changes drastically along with other social conventions such as fashion.

I think it is a scandal that intersex folk, arguably, do not have Equality Act protection

What an incredibly bizarre comment! They do have protection. Sex along with any other protected characteristics they may come under. For example, depending on DSD as many conditions have severe effects and are life-limiting, Disability.

I’m afraid to say that’s how the law ‘at the cutting edge’ always is. Human beings are good at coming up with scenarios that lawmakers didn’t think of. We might agree on some. I think it is a scandal that intersex folk, arguably, do not have Equality Act protection. The U.K. is behind, for example, The Channel Islands, in that particular lacuna.

The last thing a client wants to read in an advice is ‘the law in this area is uncertain…’
Those who suggest that there are simple, pat answers to a complex area of human existence are, in principle, likely to be wrong.

I like the old quote that, ‘if you think the answer is simple, you have misunderstood the question.’

Taylor could, of course, be re-argued (in another case) but I have yet to hear a decent argument against the legal interpretation which is firmly founded in Hansard.

Gender identity cannot be defined so it can't be legally protected. It's also opt-in which protected characteristics shouldn't be - there should be a debate about focusing on disability, race, sex (including pregnancy and maternity), sexuality, age and possibly religion imo. Although the court case of a man who said he had a woman's gender identity V a woman who said he didn't because it didn't align with hers would be fun.

So no precedent value.

Just like Taylor v Jaguar Land Rover.

It's interesting that what these discussions show is that nobody really knows what the law says or what it means. Until there is case law you will continue to have one group of lawyers arguing that the law means one thing and another arguing the complete opposite. This issue has been highlighted recently with Stonewall advising companies incorrectly on what the law says. The current terminology around gender in law is ill-defined and often unnecessarily conflated with sex. They should sort out the current mess before they even think about throwing a new ill-defined concept into the mix.

Don't we have an excellent example of what happens when gender identity and gender expression are protected in law enforcement in Ontario, Canada?

I believe there's a whole thread on the comedy-tits teacher, with school management defending teacher's right to prosthetic porn tits in classroom on the basis of gender expression.