@gardenbird48
I was thinking on about the protection about discrimination and the legal contortions that are put in place to allow complete ’concealment’ of a trans identity.
In theory if employer ’does not know’ about an employee’s trans identity (if the officially ‘don’t know’ regardless of any visual evidence), then that employee can’t claim any protection under Gender Reassignment because they can’t directly discriminate based on a characteristic that is invisible to them?
Indirect discrim might still be hard to prove as if an employer isn’t aware of the need to prevent something that causes indirect discrimination they can’t be held accountable. That’s why it is important to gather stats on people’s correct info.
A male born trans person would presumably experience little sex based discrimination eg on a basis of maternity etc - I guess equal pay might be relevant?
So by allowing a person to hide their protected characteristic, their protection again discrimination based on that pc is removed ?
Just a thought
The situation, as I understand it, is the same as the Protected Characteristic of Disability as far as the making of “reasonable adjustments” is concerned.
In employment, it is up to the employee to “identify” themselves as being disabled, ie. to volunteer the information that they have an objectively verifiable impairment or medical condition that affects their functioning for six months or longer.
(If I am out of date with this now, I am happy to be corrected. It is an area that I was very familiar with when I was working and as a union rep.)
A person with a “hidden disability” would be comparable to a totally “passing” trans employee.
The concept of ”identifying as” works fine for Disability, in Employment, State Benefits, etc.
When a Job Application form asks if someone “identifies as” having a Disability, it is an invitation to voluntarily disclose that information so that the Employer can meet their statutory duties. It might be very important for Health & Safety reasons, risks to other employees and/or the public.
For example (real example) someone who develops severe postural hypotension causing them to faint when they stand up should not be working on the glass roof of a public building. The employer or contractor might not be able to make “reasonable adjustments” or they might, eg. by redeployment to working at ground level, to an Admin role, etc.
However, before considering what adjustments might be reasonable, the Employer might very reasonably seek advice from Occupational Health.
With Disability, the Employer or State is entitled to respond to a “self declaration” by requiring objective verification.
The problem with self-declaration “identifying as” trans is that there is no possibility of objective verification. It is different to volunteering the information that one has been diagnosed with a recognised medical condition, eg. Gender dysphoria.
Stonewall and other trans advocacy groups are keen to stress that “you don’t need dysphoria to be trans”. This completely untethers “transgenderism” from any objective verification.
The EA2010 embeds the concept of Self-ID by misrepresenting the provisions of the GRA2004. The GRA2004 defines “transsexualism” as synonymous with “gender dysphoria” which, under the GRA2004, must be confirmed by two doctors.
The Protected Characteristic of “Gender Reassignment” under the EA2010 has been clarified by the EHRC to mean “transsexual” as defined in the GRA2004.
However, the protection under EA2010 kicks in as soon as someone proposes that at some time in the future they intend to undergo “gender reassignment” ie. obtain a GRC under the GRA2004. They don’t need to say when, just that it is something they intend to do in future. The stated intention is the start of the process of “gender reassignment” and Protection under the EA2010 starts right then.
In order to act on that stated intention the person would have to obtain a diagnosis of gender dysphoria, which could be at any undefined and unlimited time in the future.
The EHRC “clarification” does not make sense.
The only way in which it could make sense is if, relying on the definition in GRA2004 as stated, protection under EA2010 instead kicked in at the point that someone successfully obtained a diagnosis of gender dysphoria. That is, objective verification of a medical diagnosis.
A doctor’s letter would do it. Just like anyone claiming protection for Disability due to a medical condition.
If the GRA2004 is repealed, and I would support that idea, something else does need to be done to clarify Protection under the EA2010. The logical thing to do IMHO would be to reinforce the definition in terms of a confirmed diagnosis of gender dysphoria.
Arguably, there would then be no need for a separate Protected Category of “Gender Reassignment” as “gender dysphoria” would be covered by the Disability Protection.
A knock-on effect: Transgender athletes could compete in the Paralympics and be covered by Paralympic rules ensuring a level playing field.