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

[rabbitwoman]

We are commonly told that gender identity is a protected characteristic under the Equalities Act, when we all know that it is gender reassignment, but I often ponder if making gender identity the protected characteristic would actually be a better option?

If gender identity was a protected characteristic, then ergo so would not being trans gender and those who do not have a gender identity.

It would then certainly protect GC people from harassment or detriment as well as trans people, wouldn't it?

I am not a, lawyer, but my thinking is that It would be fairly pointless for anyone claiming to be a woman under that PC to demand access to womens spaces because a counterclaim could be made by anyone GC that they are not in fact a woman at all under the same PC? Surely?

A blessing and a curse......

I have just set out these thoughts quickly before going to work but I do wonder if this has any legal legs to it?

I don’t see why there would be protection for those who claim not to have a GI. If you applied that thinking to the PC of disability that would mean the able bodied were protected. Lack of belief is already protected within the Belief PC. Having GI as a PC would be a problem for women. How to balance the PC of sex with GR is already a headache. Adding GI into the mix (which, lets face it, has no objective meaning) could create new issues.

That's an interesting question. The problem with gender identity is that it is so ill-defined by nature. There would be long ranging consequences far beyond women's rights IMO.
"I am X because I feel like X" means that pretty much anything could be claimed to be a protected characteristic.
Take those adult males who claim to be six year old girls. If the entirety of that is claimed as a gender identity, (which it could be as per the current fuzzy definition) then legally they might claim the right to go to primary school.
That might seem an extreme example, but that's the risk when you put something indefinable into law as a 'right'. People will take advantage of it.
It'd be completely unworkable unless a non-circular definition of gender identity was included.
However, the problem with gender identity is that it is all based on stereotypes so either you have an undefined protected characteristic that anyone can take advantage of or you are protecting the performance of gender stereotypes within law which would have it's own negative consequences for women and girls (that Canadian teacher with the falsies for e.g.)
I think it's one of those things where it sounds like a simple answer on the surface but it'd actually have quite serious unintended consequences.

It would become The Protected Characteristic. TRAs are trying it now.
They are dismissing religious beliefs in personal modesty as irrelevant.
They are trying to conflate sex and genders. They are trying to say a bloke who puts a dress on for a [fill in your own word] is the same as a person who is considering getting drugged and mutilated to match the idea in their head. #NotAMentalIllness
Make it a protected characteristic and it will only get worse.

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

Because they want to make it THE protected characteristic, but under the assumption that it would only refer to and protect trans people?

But in fact, if they are trying to argue everyone has a gender identity, surely it would also refer to people who are not trans, and the whole range of beliefs that come with that, which would include being GC?

Oh god.

Ten years ago it would have sounded equally implausible that a sex offender would be put in a women’s prison because he says he’s a woman….

But in fact, if they are trying to argue everyone has a gender identity, surely it would also refer to people who are not trans, and the whole range of beliefs that come with that, which would include being GC?

Wouldn't lead to people having to pretend (lie) to have the PC of gender identity to be able to be protected. You are right that It may not work out how trans activists want, my guess is that it'll make things worse for everyone. As PP pointed out the case of the fake breast teacher in Canada (possibly an example of where people are starting to game the system). On the other hand cases like Jessica Yanniv (and many other cases) are a good example of the damage done to multiple women by these laws.

The law should be clear and specific and predictable. There is nothing clear or specific about the term "gender identity". What does it even mean, how is it balanced against belief or sex? Nobody knows.

*Wouldn't this

Also belief (and lack of belief) is already a PC. GC is already protected in law following the MF case.

It would not protect women in the way that women are protected now

There would be no single sex exceptions - so single sex jails , changing rooms , sports , no monitoring of wages or health by sex because they are all discrimination based on sex which is only allowed because sex is a protected characteristic

These would also not exist for gender categories as these discriminations are only allowed for sex because of clear , objective , measurable reasons

You would need to prove the need for single gender sports for example and if a significant proportion of women don't identify as such you won't get the clear differences needed to establish gender categories for anything

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)

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

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

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.

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.

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.

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

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.

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.

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.

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.

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.

if you remain with your natal sex and gender identity aligned

What does this mean @RobinMoiraWhite ?

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?

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...'