Enforcing the Equality Act

[RedToothBrush]

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.

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.

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.

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

That would be a massive step forward.

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.

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.

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.

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.

indeed!

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

Thank you so much for this Red

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.

Oh 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?

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.

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.

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

IIRC correctly (maybe DoctorW can confirm) when Fair Play For Women did a FOI to the EHRC some of the internal emails showed that there was some discord amongst the lawyers (or are they policy folk?) at the EHRC, I think I remember reference to "I know we don't all agree" and a lot of putting off making the decision to respond one way or the other because they couldn't get consensus. I wonder how those who were obviously going against the TWAW grain are feeling today.

Just seen this on twitter

Crone in a million @croneinamillion
Anyone else wondering why the Stonewall submission doesn't mention lesbians, gays or bisexuals?

Stonewall's submission to the committee on Enforcing the equalities act

It also doesn't mention transmen.

Its very telling isn't it?!

There's a thread in legal today about a pretty clear cut case of pregnancy discrimination where the OP is being discouraged by many from pursuing the matter because of the perceived costs risk.

I absolutely agree with the view of the report that individual litigation isn't fit for purpose and I'm very glad more attention is finally being given to the issue.

RadFemLawyer's take on Twitter:

twitter.com/radfemlawyer/status/1156146211835060224?s=21

Thanks for your research and posting @RedToothBrush , I'm still reading but noticed something I wanted to comment on. I'm male, disabled with wheelchair, DP is blind, arthritic, seizure-prone and DD is pansexual, genetic issues rendering her disabled but able to work.

Remove or minimise disadvantages suffered by people due to their protected characteristics.

Isn't enforced. Restaurants with same-sex toilets; restaurants with only upstairs toilets (really fun, and has been an occasion where we recently "rolled out", three mains untouched on the table. Pay? Fuck that). Shops with numerous steps and no provision for wheelchair access/help for those unable to use steps - ramp/even double close handrails in some situations.

Lack of adequate disabled parking/distance of parking at medical centres.

Everyone (as in major supermarkets) offer mobility scooters for people like me, yet where are the reductions or minimised disadvantages for a blind person. DP might get to customer services alone but beyond that, how is she expected to shop? Nowhere we've investigated/found offer any provision. Nobody,

Take steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people.

As above.

Encourage people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

They must be sniffing something very expensive and very good to believe this ever has a chance in working.

I realise this is posted in feminism, and I haven't posted anything directly apportioned to it, but seeing DP, and DD abused and restricted on a regular basis purely due to their sex, comparing my disabilities to DP/DD, they are prejudiced far more.

The work situation of DD asking to leave work early whilst being racked with severe bone pain being denied as "you're a girl, it's only pain and unimportant" while approving a male colleague to leave early to go to the theatre, is appalling.

I often/always call out discriminators but will admit I'm extremely scared to do so in a street, especially with a male perpetrator, due to fears of physical abuse and concern for DP (who is always with me).

Steven, I think there is a problem with the Equality Act itself here though.

The document was about 'enforcing it'. And the wording of the Equality Act has a particular phrase which makes issues with disability access more complex - the 'reasonable adjustment' clause.

It terms of enforcing the Act, the vagueness of what a reasonable adjustment is, is a barrier.

The definition of what constitutes that is one which is important and is in some ways similar to misunderstanding and problems with the conflation of sex and gender for this reason.

However it is one that is perhaps more difficult to define than what sex is.

The document does state that this is where the EHRC need to be more proactive and realise that individual complaints of a particular nature apply not just to one case but more broadly to a number of people. They did refer to how blind charities were finding it frustrating that they were getting so many people with similar complaints but even when a case was raised it wasn't being applied elsewhere.

Thus I think the emphasis for disabled people and improving equality lies more with institutional level enforcement from the EHRC.

So pleased to see this really important thread back near the top of the board.
The implications of this are massive - as are the Welsh government lack of impact assessments and lying about it, the Michael Biggs research into theTavistock, the Scottish analysis (to name a few). They're evidencing the growing impact of all the work that's been done to call out all the abuse that's happening and the regulatory capture of so many institutions.
These threads won't be targeted by any of the word salad posters as they're not the type of thread they want to boost - too much concrete evidence. But it's well worth keeping them bumped.

Red, thank you so much for doing this.

I have mixed feelings. It's clear that some of the problems have been recognised, but like a pp said, the GEO's proposed role (which is unavoidable, obv) is concerning because they routinely include TWs in their definition of woman. For example, it recently published a research report on "healthcare amongst lesbian and bisexual women". Don't be fooled by the title. Apparently lesbian women can be lumped in with this one group of het males.

This is a bit trivial, but I'm gobsmacked that they've quoted James claim that women in refuges argue about who has had the worst abuse!

Steven, I think there is a problem with the Equality Act itself here though.

Yes, you're right, and the vagaries of "reasonable adjustments". Just please never add an "n" to my name.

Sorry! Was on my phone.

RadFemLawyer's take

Just to say that @LadyJustice (iirc for the MN handle) should take a bow for encouraging us to respond to this call for evidence at the time when a number of us were heavily engaged in responding to the main WEC/GRA call and the Sports call for evidence.

Sorry! Was on my phone.

Hah! My mother calls me "that" and lets just say I don't like her very much!

You raised very good points in your reply to my post, I really like your angles. Meh, that sounds like some weird chat up line! 🤣

Just catching up with this. Thank you Red!

190.We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and (b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment.

So pleased to see this.

The current 2011 code (for services, public functions and associations) can be found here:

www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

• and includes the following:

13.60 - As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.

Karen Ingala Smith picks up on the difficulties of 'case by case' at 185.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but 'case by case' overrules your policy so you can never guarantee female only space to your service users.

There was a consultation on the codes when they were brought in in 2011, the report is here:

www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

There is evidence in this report that the additional requirements in the EHRC Statutory Code - over and above those required by the Equality Act itself - were added under pressure from tra organisations:

vii. Various transsexual stakeholder groups responded to the formal consultation and also participated in the parallel consultation events taking place on the non-statutory guidance.

Feedback from the consultation events was incorporated into the employment and services codes where appropriate, particularly on issues of confidentiality, use of single sex services and the legal definition of transgender.

and …

e. Services, public functions and associations
• A number of concerns were raised about the exceptions, in particular the exceptions for charities, single sex services and separate services.
These sections have been revised as a result.

In the back of the report, the list of respondents includes the usual suspects - a:gender (civil service TRA org), Gires and Press for Change. Also Stonewall but they were still a LGB organisation back then.

I am assuming that new statutory code will involve a new consultation. We need to be ready to participate and to insist that the groups which actually represent women are fully involved.