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 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.

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.

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?

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?

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.

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.

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 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.

‘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.

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.

Don't we have an excellent example of what happens when gender identity and gender expression are protected in law enforcement in Ontario, Canada?

I believe there's a whole thread on the comedy-tits teacher, with school management defending teacher's right to prosthetic porn tits in classroom on the basis of gender expression.

So no precedent value.

Just like Taylor v Jaguar Land Rover.

It's interesting that what these discussions show is that nobody really knows what the law says or what it means. Until there is case law you will continue to have one group of lawyers arguing that the law means one thing and another arguing the complete opposite. This issue has been highlighted recently with Stonewall advising companies incorrectly on what the law says. The current terminology around gender in law is ill-defined and often unnecessarily conflated with sex. They should sort out the current mess before they even think about throwing a new ill-defined concept into the mix.

Gender identity cannot be defined so it can't be legally protected. It's also opt-in which protected characteristics shouldn't be - there should be a debate about focusing on disability, race, sex (including pregnancy and maternity), sexuality, age and possibly religion imo. Although the court case of a man who said he had a woman's gender identity V a woman who said he didn't because it didn't align with hers would be fun.

I’m afraid to say that’s how the law ‘at the cutting edge’ always is. Human beings are good at coming up with scenarios that lawmakers didn’t think of. We might agree on some. I think it is a scandal that intersex folk, arguably, do not have Equality Act protection. The U.K. is behind, for example, The Channel Islands, in that particular lacuna.

The last thing a client wants to read in an advice is ‘the law in this area is uncertain…’
Those who suggest that there are simple, pat answers to a complex area of human existence are, in principle, likely to be wrong.

I like the old quote that, ‘if you think the answer is simple, you have misunderstood the question.’

Taylor could, of course, be re-argued (in another case) but I have yet to hear a decent argument against the legal interpretation which is firmly founded in Hansard.

I think it is a scandal that intersex folk, arguably, do not have Equality Act protection

What an incredibly bizarre comment! They do have protection. Sex along with any other protected characteristics they may come under. For example, depending on DSD as many conditions have severe effects and are life-limiting, Disability.

As a thought experiment, how would you protect 'fashion sense' as a protected characteristic?

You can only codify something into law if you can define it. Gender does not have a legally recognisable definition because it doesn't exist as material reality.
Its a social convention that changes drastically along with other social conventions such as fashion.

[Pretending for one second that catgender does not exist and that all trans people are TW or TM).

A person's gender identity is their personal and unverifiable claim to be part of a group of individuals that is vaguely defined by reference to outdated and conservative sex-based stereotypes which align with the biological sex that they are not and never can be.

Given a person's gender identity has nothing to do with unchangeable biological sex, and given it can change at any time and can never be measured or verified, there can be no possible reason for it to have any protection in law other than as a belief system.

I am pretty sure that -

(1) People with DSDs (I believe that this is the descriptive term that is used by those who try to keep up to date to minimize offence and harm cause by people you call intersex) repeatedly ask not to be brought into the trans debate

and

(2) People with DSDs are simply not an issue in this context due to the fact that the numbers are microscopic and that people with DSDs are the exception that proves the rule. If someone is genuinely believed to be and brought up as someone of the opposite sex then to all intents and purposes they are. Contrast this with trans people, precisely none of whom were genuinely believed to be and brought up as someone of the opposite sex.

As someone who INAL but does advise people in a context that involves interpreting the law and legal decisions I can assure you that if the law is uncertain clients would much rather you make it clear that the outcome could go one way or the other rather than be lied to and told it will go their way when it may well not.

No. Do read the appropriate section of the Equality Act.

Do read the appropriate section of the Equality Act.

What section? You've said they're arguably not covered. Although they obviously are. Make your mind up. What exactly do you think people with differences in sex development actually are apart from human beings like everyone else?

Section 11 ‘sex’.

DSD doesn’t appear anywhere. Under your analysis they are covered when the DSD amounts to a disability. Most intersex folk I know would not consider themselves disabled.

Section 11 ‘sex’.
DSD doesn’t appear anywhere.

Why should it? Everyone is either male or female. This includes people with DSDs. What extra provisions do you think there should be in the EA2010 to cover people with DSDs?

But people with DSDs do have a sex. So they are covered.

Is this for real? People with differences in sex development are female or male (ALL DSDs are sex-specific) just like everyone else. I can't actually believe what I've just read!

You see, the equality act is supposed to protect everyone yet there is so much debate and different opinions on this issue, I wonder if it is still even possible to argue there is no clash between trans rights and women's rights any more!?

And isn't this supposed to be accessible to everyone? How can my mate who works in the petrol station access these rights and protections when she feels discriminated against because she's the only one being made to clean the loo?

How much would it cost her to raise a claim, and how would she pay? Tribunals are supposed to be free if you represent yourself but how on earth is a layman supposed to wrestle with these concepts?