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

RNW... in the hypothetical scenario where a very effeminate man (straight and not trans, and clearly a man) was prevented from accessing a male-only facility do you agree that they would not have a claim under sex discrimination because they have not been discriminated against for being a man, nor have they been discriminated against for being a woman?

What if they attempted to sue for discrimination under the protected characteristic of gender reassignment? They cannot have been discriminated against because they have the protected characteristic (they are not trans!), but they might have been discriminated against because the service provider perceived them as being trans.

It seems to me that the protected characteristic of GR could be used to help males gain access to male spaces, but the reverse does not appear to be true.

‘One of the recent cases in Scotland determined that having the protected characteristic of gender reassignment does not alter someone's sex category (another protected characteristic). So the comparator for a trans woman in a discrimination case is a man without the protected characteristic of gender reassignment, not a woman.’

Regrettably not. Not argued in the case, taken as a given. And stated in the judgment without a shred of justification or analysis. So no precedent value.

And comparators are always case-fact sensitive, so too simplistic an analysis.

if you remain with your natal sex and gender identity aligned, or ‘do not have a gender identity’ as some would prefer to say, you are not protected under this Equality Act head.

Also, a person saying they don't have a gender identity isn't a preference of terminology. It's a rejection of the idea that there exists a gendered soul that requires alignment with the sexed body. If you chose to believe in gendered souls (or any other kind of soul) that's up to you but stop trying to foist it on the rest of us.

Prefacing this with IANAL

The current EA has the protected characteristic of gender reassignment - undergoing or proposing to undergo transition. The EA prevents discrimination based on this protected characteristic and would determine discrimination based on treatment of a person with the protected characteristic Vs person without (eg trans person Vs non-trans person).

One of the recent cases in Scotland determined that having the protected characteristic of gender reassignment does not alter someone's sex category (another protected characteristic). So the comparator for a trans woman in a discrimination case is a man without the protected characteristic of gender reassignment, not a woman.

I think if you replaced gender reassignment with gender identity as the protected characteristic, it would be similar. The comparator for someone with a (any) gender identity would be someone without one. But recognising gender identity as a protected characteristic still wouldn't effect the sex category.

However, I also think that having a gender identity reduces to believing in gender identity, which would be covered by the protected characteristic of religion or belief (which also protects non belief). That would be a step back for trans people, because it would require a trans person to distinguish between their belief in gender identity and their expression of that belief in a discrimination case. Which seems really messy.

If sex and gender are two different things, then how are they ever 'aligned'?

This is what I can never wrap my head around.

And why give "thing B" the same name as "thing A" even though they are actually completely different things and then suggest that "thing B" is the only thing that actually matters even though "thing B" would never have been a thing if "thing A" hadn't existed in the first place.

It might be valid to make both sex and gender expression separate protected characteristics, along with very explicit strengthening of the statements that it is ok to have single-sex facilities that are not segregated on the basis of gender.

I would then gain protection from being discriminated against due to not "womaning" properly eg not weaeing makeup or nail varnish which I know has made some other women judge me as "not making an effort" and has probably lost me employment opportunities over the years. It would protect women who didn't want to wear feminine shoe styles and men who did, in workplaces with dress codes. Shops would have to think about why all their clothes thar are cut to a shape that accommodates breasts are floral, delicate and frilly whereas all their less floral stuff is cut to the other body shape option.

I thought that Taylor v Jaguar Land Rover was a first-tier ET and therefore does not set a legally binding precedent. Therefore, another case with similar circumstances could have a different outcome?

if you remain with your natal sex and gender identity aligned, or ‘do not have a gender identity’ as some would prefer to say, you are not protected under this Equality Act head.

Oh, so if some one identifies as catgender, they're protected if they're a male who id's as a Queen cat but not if they id as a tomcat?

If sex and gender are two different things, then how are they ever 'aligned'?

If a female person just does one thing not 'traditionally' female, just as play with one Lego, are they automatically 'protected'?

Bring it on.

I think it would be a good thing, as long as you mean that sex is kept and it is gender reassignment that is swapped out for gender identity.

In crafting the current law, gender reassignment was treated similarly to disability - the premise being that this was a small group of people for whom life was more difficult and the current social model put them at a disadvantage. Interestingly, disability still requires a lot of evidence and gatekeeping - it was obvious that extending disabled parking or toilets to anyone who feels the need that day, would disadvantage disabled people the most.

If law makers had to be precise about legislating for a category with no objective definition or proof, it would be seen more similar to a religion. Everyone is entitled to have their own religious belief, or none, and they are expected to live and let live. Whereas the accommodation for disability is in one direction - religion is expected to have respect going both ways. The idea that we'd need to have separate toilets for non binary people, litter boxes for cat-gendered people etc would lead to sensible conversations about reasonable adjustments, rather than bunging everyone in together as non-men. I expect that there would be a general move towards a third space for anyone who feels they need it, but who knows.

At least the language would be clear and the conversations could happen.

Arguably, since Taylor v Jaguar Land Rover, gender identity IS the way to interpret the protected characteristic of gender reassignment since if you move away from your natal identity, you are protected, no matter what that new identity is.

if you remain with your natal sex and gender identity aligned, or ‘do not have a gender identity’ as some would prefer to say, you are not protected under this Equality Act head.

Not everyone is protected under the PC of gender reassignment. But a move to 'gender identity' would mean that everyone is covered, just as the PC of religion covers atheists as well as believers. So 'gender identity' covering everyone (whether they have a gender identity or not) is fundamentally different from 'gender reassignment' which only covers those who are 'proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex...'

From the EA 2010 - "A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

This means that no TW should be treated any differently from someone identical in every way to the TW, apart from they are not a TW. No TW should be treated differently from any other man in other words.

I can't see how else this can be read?

if you remain with your natal sex and gender identity aligned

What does this mean @RobinMoiraWhite ?

It would make it a protected characteristic like sex, race or religion. Gender reassignment is treated like disability or pregnancy, where only those with the protected characteristic are protected. A person without the PC of gender reassignment can be treated less favourably than someone with that PC and there is no grounds for a discrimination claim on the basis of not having that PC.

Changing it to gender identity would mean that a man with a gender identity of 'transwoman' should be treated the same as a man with a gender identity of 'man', 'catgender' or no gender identity. The man with the 'transwoman' gender identity couldn't be treated more favourably or given special privileges compared to a man with no gender identity.

At the moment we know that sometimes men who claim to be women are given access to women only spaces. If the PC of gender identity was law, all those men who don't claim to be women could also gain the same access as they could claim that they were being discriminated against on the basis of not having a 'transwoman' gender identity compared to the men who claim to be women. The result of this could either be everything becoming mixed sex, or bans on all males from female only spaces regardless of their gender identity (which is how it should be anyway if the EA2010 was being properly applied).

I am not a lawyer.

Can I just add that (2) is quite a tricky issue and I don't have an answer. It just seems to me to be the case that one big issue with ensuring people's access to the right sex based spaces is maintained irrespective of their gender identity, then this does not allow muscle-bound and T-fuelled women to harm the rights of ther women. I am not sure this is a big problem in practice, and it can be resolved easily in sport with testosterone level requirements to ensure women's sport are for "normal women" not drugged up ones, but it does seem to be the one place where a common sense approach to gender-identity equality might not work.

Arguably, since Taylor v Jaguar Land Rover, gender identity IS the way to interpret the protected characteristic of gender reassignment since if you move away from your natal identity, you are protected, no matter what that new identity is.

if you remain with your natal sex and gender identity aligned, or ‘do not have a gender identity’ as some would prefer to say, you are not protected under this Equality Act head.

That is consistent with what happened in parliament when the Equality Bill was considered when Lynne Featherstone proposed an amendment to ‘gender identity’ and was told by the minister that this was not required as the relevant individuals were covered.

That seemed to have been forgotten until Taylor.

Yeah. I have no problem with the EA being change to make what I believe is pretty much the truth much more clear.

Ditch "gender reassignment" as a protected characteristic.

Add "gender identity".

Make it absolutely clear that people's gender identity or lack of one make ZERO difference to the sex based rights they have based on their unchangeable biological sex.

Then there become three issues in practice -

(1) How to make GNC men safe in men's spaces
(2) Whether there should be some exceptions - the only one I can think might need to exist is considering banning some transmen (the bearded body-builder types) from women's spaces as the rights of women to feel safe from people they perceive to be men, and I fear that there is a potential for T-fuelled violence from a very strong trans man in a way that there is no potential for womanly behaviour from any TW.
(3) Whether and when to have third spaces for people who feel that they are too special to use there correct single sex spaces.

If everyone has this mysterious gender identity, then how can it be protected in law?

Surely then everyone has the same rights and it becomes invalid as something to be protected.

Am not sure how GI is defined in Canada. But I thought that to protect something in law, you first need to define it.

Canada didn't bother to define it.

Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from the gender typically associated with their sex assigned at birth. For some persons, their gender identity is different from the gender typically associated with their sex assigned at birth; this is often described as transgender or simply trans. Gender identity is fundamentally different from a person’s sexual orientation.

www.canada.ca/en/department-justice/news/2016/05/gender-identity-and-gender-expression.html

You can be male and wear a frock to work and long as it is a professionally acceptable frock that women might wear in the same job and it's not showing your willy, it's fine.

Isn't this already the case? Couldn't a man claim sex discrimination if he was prevented from going to work wearing the same type of clothing as his female colleagues?

Am not sure how GI is defined in Canada. But I thought that to protect something in law, you first need to define it.

All protected characteristics deserve protection. Hence the title.

I do wonder if that would be a massive own goal.

It might, but the pain and suffering to vulnerable people while they scored that goal and afterwards would be appalling. Gender Identity is not a well defined term either, it would be fought over bitterly. The Equalities Act is not meant to cause division between protected groups. And yes I agree with pp that enshrining it in law would make it eve harder for women to use the law to fight back.

I have wondered if "gender non-conformity" should be a protected characteristic together with a much narrower definition of "gender reassignment" to mean "medical transition". At least "gender non-conformity" is externally observable. You can be male and wear a frock to work and long as it is a professionally acceptable frock that women might wear in the same job and it's not showing your willy, it's fine. You can be a girl who identifies as nonbinary and uses a boy's name and still enter the girl's maths olympiad. You can be a very gender-non-conforming butch lesbian and use the ladies' toilets and join the women's sports team, or a man in drag and use the gents. Or you can be in physical transition and use either characteristic.

@midgetastic - can you define for us this 'gender identity' that you'd be happy to have listed as a protected characteristic?

Look to Canada. They have GI enshrined in law. My assessment is that they are having all the same kinds of problems we're having. The main difference being that although our institutions act like GI is protected, because it's not, we able to challenge it. It's law in Canada so I think they are pretty screwed.

Male teacher wears woman caricature costume to teach woodwork class
https://www.mumsnet.com/talk/womens_rights/4635166-would-you-want-your-child-to-be-taught-by-someone-who-looked-like-this

Canadian nurse disciplined for GC views
https://www.mumsnet.com/talk/womens_rights/4583516-amy-hamm-canadian-nurse-being-disciplined-for-being-gc

Rapist uses GI to get into women's prison
https://www.mumsnet.com/talk/womens_rights/4351379-How-can-people-think-this-is-OK-I-just-dont-get-it

I mean I am quite happy really if gender identity needs to be a protected characteristic

But I don't think that should mean "the right to be considered the opposite sex where ever sex is important "

Just free from discrimination , with suitable measurements ( to see if there is discrimination at work for example ) and adjustments if proven necessary ( so sex neutral facility in addition the the ladies and gents)