Interpreting the EA2010

[Terranean]

Hi, I mostly read here and find much of what is discussed very interesting and articulated. I have seen this on a union website on Gender identity and the interpretation of Gender Reassignment as a PC: "Gender reassignment is a protected characteristic within the Equality Act, so it's important that employers are taking action to ensure gender identity equality within their institutions. An employment tribunal in 2020 found that non-binary gender is covered by the protected characteristic gender reassignment.

While the 2010 Act refers to gender reassignment, it is more common now to use the more inclusive term gender identity as it reflects:

that the Equality Act covers a person from the moment they identify their gender as other than the one that matches their birth sex; and
that engagement with related medical processes - eg, gender reassignment surgery - is an individual choice, not a pre-requisite for being covered by the Act."

Is this correct? I know Ann Sinnot is seeking clarification, but I am unsure if an employment tribunal decision can impact on a parliamentary Act. Could that be the Maya's Forstater case? It is really awful to see how little thought is given to women's rights by all this institutions and organisations that shout so loud about equality. Any insights on how to interpret that text would be appreciated.

It's very common to find people and organisations conflating gender identity (what the hell is that?) with gender reassignment — but those who do so are wrong. The finding of an employment tribunal doesn't make a dent in statute law, as I understand it: the tribunal is very low-level. And the decision made there is being appealed. If you read the ruling the judge said something along the lines of 'a belief that men cannot become women is incompatible with human dignity and the rights of others.' He was essentially saying that scientific fact cannot be stated — and when the appeal, in a higher court, is heard, I have every confidence that the original ruling will be binned.

The pc in the Equality Act 2010 is Gender Reassignment so this organisation can’t reword the law as they feel like.

As far as I can tell (not being a lawyer but having closely read resource legal sites like Feminist Current etc, having the pc of Gender Reassignment protects from discrimination on that basis - ie a person being somewhere (anywhere) on the transition journey. This would include things like employment or provision of services etc.

It does not include the right to be treated as if the person were of the acquired sex.

Thanks shedbuilder. I agree that is incorrect to conflate gender identity and gender reassignment. It worries me how matter of fact they present this info.

Further down they say: "Gender can be asked in the format of woman, man, other (with a free text box so that a person can self-identify in their own terms).
Sex can be asked using the terms female, male, other. This also allows for intersex people to self-identify. The Equality Act does not include intersex as a protected characteristic."
So they appropriate the words woman/man for gender and female/male for sex. Making the woman, adult human female split.

You need this:

twitter.com/Sexnotgender_

So you can only have a gender identity if you "identify their gender as other than the one that matches their birth sex"?

That doesn't sound right? Does it cover people who don't have a gender identity or are they excluded?

Intersex people are either male or female. Some might also have a transgender identity and choose to identify as another sex than their own but to suggest they are some kind of third sex is incredibly ableist .

The tribunal that ruled that non-binary was included under ''gender reassignment" wasn't Maya Forstater's one, it was the one discussed here

www.mumsnet.com/Talk/womens_rights/4029415-Another-legal-attack-on-the-Equality-Act?msgid=100230859#100230859

@334bu

Intersex people are either male or female. Some might also have a transgender identity and choose to identify as another sex than their own but to suggest they are some kind of third sex is incredibly ableist .

This.

Sex is a protected characteristic. I'm quite sure that if someone with a DSD had phenotype features which resulted in discrimination on the basis they were perceived as the opposite sex it would be covered.

If the discrimination was related to the DSD in some other was it would be covered by the disability PC.

I don't think the person who wrote that understands what a DSD is or how the EA works.

The tribunal that ruled that non-binary was included under ''gender reassignment" wasn't Maya Forstater's one, it was the one discussed here

It's worth noting that the circumstances of this decision were quite specific- bullying occurred because the claimant was perceived to be trans and the company ignored it.

I think the way the judgement was phrased is perhaps a little unhelpful because it implies gender identity might be protected but a higher court would likely reach the same decision.

The lawyer that is presenting that case as some sort of victory for non binaries posted here about this, and it seemed like a lot of wishful thinking.

Unions are a bit dim.

It's UCU, isn't it? Unfortunately some very vocal and bullying individuals within the union have turned into committed ideologues and truth-deniers on this issue.

I just can't quite see what the claim is, that 'gender reassignment' is the protected characteristic but that 'gender identity' is the same thing but a more 'inclusive' way of saying it?
So does it actually include more people under 'gender identity' than it would 'gender reassignment' or are they saying the two are synonyms?
'gender reassignment' really isn't how most people would interpret the term 'gender identity'.

The whole thing is weird. If they don't want 'gender reassignment' to only mean surgery, they they should make this clear (I don't even know if that's what it does mean, I assume not and that it refers to any kind of transitioning such as changing you name on a utility bill).

To try and say that 'gender identity' means 'gender reassignment but without any changes' is really odd. Without meaning to sound facetious it is erasing 'cis' identities (if you believe in them) as non-trans people would no longer have a gender identity, which is the opposite of the 'everyone has a gender identity but if you're cis-privileged you don't realise' argument I always hear.

www.lawgazette.co.uk/legal-updates/non-binary/gender-fluid-claimants/5105968.article

The employment tribunal acknowledged that this was a novel area of law, before determining that Ms Taylor as a non-binary/gender-fluid person did fall within the definition of the characteristic.
...
In this case, Ms Taylor argued that the Equality Act could be interpreted to cover more complex gender identities by referencing Hansard comments made by the Solicitor-General in 2009 when debating the original Equality Bill, in which the Solicitor-General referred to gender as a 'spectrum'. It was stated that gender reassignment 'concerns a personal journey and moving a gender identity away from birth sex'.
...
As a result, whilst Tribunal decisions of first instance (such as this case) are not binding on other tribunals we can expect to see a rise in claims from those claimants who identify outside of traditional binary genders.

Nauticant So I can see the logic in that, whether or not one agrees that identifying as non-binary constitutes 'gender reassignment'.

What I don't understand is the term 'gender identity' being used as a replacement for 'gender reassignment'. It's only an identity if it changes?
'Moving a gender identity away from birth sex' - so you are assigned a birth sex, but not a gender identity unless you want to move away from your birth sex, which is fixed? Isn't this what we've been arguing?

In this case, Ms Taylor argued that the Equality Act could be interpreted to cover more complex gender identities

It's all about gender labels, not complexity. The bullying was not managed by the employer, who then tried to wriggle out by quibbling about gender labels as a silly defence. There's hundreds!

The bullying was for dressing as the opposite sex so there was nothing ground breaking at all.

Wishful thinking.

More here:

www.brethertons.co.uk/site/blog/employment-tribunal-gender-reassignment

with the full (but brief and not informative) judgement here:

www.gov.uk/employment-tribunal-decisions/ms-r-taylor-v-jaguar-land-rover-ltd-1304471-2018

If you do a search for the individual concerned what you see is something very few of us would consider to be non-binary.

But none of those summaries say anything about the bit in the OP I'm concerned about:
"While the 2010 Act refers to gender reassignment, it is more common now to use the more inclusive term gender identity"

(I agree there is a lot to discuss about the tribunal, but I'm basically just baffled by the UCU quoted in the OP)

While the 2010 Act refers to gender reassignment, it is more common now to use the more inclusive term gender identity

More common now is doing a lot of work in that assertion. What they really mean is they would like it to be more common now.

The more it's explained the more people are saying no thanks. 10 out of 10 for trying but it's such an edifice of waffle we can only give UCU et al 1 out of 10 for doing anything that matters to their paying subscribers.

After the 4 fights incoherence earlier this year I'm surprised that anyone bothers with them.

I'd view it as this. According to the gender identity ideology we all have a gender identity. (This isn't true of course.) For most people their gender identity is in alignment with their sex so that nearly all male people have a masculine gender identity and nearly all female people have a feminine gender identity. (This isn't true of course.) If you have a misalignment between your sex and your gender identity then you can identify as trans. As soon as the internal stress this will cause means that you deviate from gender norms in terms of presentation, or probably even in terms of your internal perception of your own self, then you are undergoing a form of "gender reassignment".

It doesn't make sense because it's nonsense. However, it's in the law which means the courts have to make decisions based on something akin to religious beliefs.

There's nothing unusual about words in a statute being found in a court to mean something the words as written were never intended to cover.

If everyone has a 'gender identity' then everyone has 'gender reassignment' - they are saying the terms are interchangeable. aren't they?

While the 2010 Act refers to gender reassignment, it is more common now to use the more inclusive term gender identity

'More common now' is doing a lot of work in that assertion. What they really mean is they would like it to be more common now.

Exactly. Like they keep telling gay women that homosexual is a medical term and nice girls/more forward thinking and upto date/the incrowd don't call themselves gay and definitely not lesbian, and instead say 'queer'.

It's branding/advertising/nudge techniques to embed what they would like to be reality as reality, and they've been allowed to get away with rephrasing actual law in the interpretation and wording that enables their own agenda to other people's disadvantage.

Unfortunately when managing the ambitions of a political group with no respect for others and a clear belief in hierarchy, the old systems that relied on everyone being honourable and playing by the rules no longer work. Strong boundaries and 'no' becomes needed.

If everyone has a 'gender identity' then everyone has 'gender reassignment'

If they were being logical then yes but logic has long been abandoned in this debate. What we're supposed to believe is that 99+% of the people in the country have complete alignment between their "gender identity" and their sex. It's obviously rubbish but if you try to stand up against this shit then you end up being beaten down or facing a multi-year fight through the courts like Maya Forstater.

@DeaconBoo

If everyone has a 'gender identity' then everyone has 'gender reassignment' - they are saying the terms are interchangeable. aren't they?

This is an excellent point.

It's very common to find people and organisations conflating gender identity (what the hell is that?) with gender reassignment — but those who do so are wrong.

How does it matter as long as neither are conflated with sex?

Because then "gender identity" becomes a protected characteristic and gets a status in Equality legislation on a par with the protected characteristic of "sex".

At that point expect to see a flood of legal cases by men claiming that someone, an employer, a gym, a school, is offending against their gender identity in some way. It would open the way to a Yaniv's Law.