Equalities Act query

ArabellaScott · 04/12/2022 20:37

Yeah, it's shit law. The whole thing needs redrafted or scrapped.

Random789 · 04/12/2022 20:48

The only thing I can think of that might fill the category of "or other" is psychological characteristics. But by hypothesis, those are meant to be already of the to-be-acquired gender, so wouldn't be undergoing change.

I suspect they may have meant adopting stereotypically gendered forms of presentation. But that clearly isn't remotely a proper foundation for the protected characteristic.

Yes, it is an appallingly badly drafted provision. But zero chance of achieving any truth-sensitive consensus in order to redraft it. So we are in the hands of case law.

Random789 · 04/12/2022 20:50

Just in that one sentence the Act makes an unexplained slippage between sex and gender. What a disaster it all is.

Original poster

Beancounter1 · 04/12/2022 21:07

Interestingly, I just googled 'physiological', as distinct from biological:

physiological
fɪzɪəˈlɒdʒɪk(ə)l
adjective
relating to the branch of biology that deals with the normal functions of living organisms and their parts.

relating to the way in which a living organism or bodily part functions.

So it is the opposite of anatomy; it is about function, not form.
Mindboggling that a person could propose to change their physiology, e.g. by taking hormones, but not their anatomy (i.e. no surgery) and still meet the definition in the act.
Makes you wonder who drafted this and with what intentions.

OP posts:

ZeldaFighter · 04/12/2022 22:25

So someone who is proposing to transition is protected under Equalities legislation. So does that mean misgendering is already a crime?

donationsMakeMeFeelBetter · 04/12/2022 22:34

So someone who is proposing to transition is protected under Equalities legislation. So does that mean misgendering is already a crime?

No - IANAL but I think I understand correctly that the EQ (Equality, not Equalities, btw) does not give people with the protected characteristic of gender reassignment any rights to be perceived or treated as though they were of the opposite sex. What it does is to protect them against being discriminated against because of the gender reassignment. So it would be illegal for anyone, for example, to have a policy of not employing people who had transitioned or expressed the desire to transition. In various settings (someone else will know more, but basically, businesses, but not individuals) it is illegal to treat a male who identifies as a woman less well than a male who does not identify as a woman would be treated.

So far so straightforward. This only gets complicated when the GRA is added into the mix. The purpose of the ongoing petition to make clear that the protected characteristic of sex in the EA is biological sex is to head off the claim (so far pretty unsuccessful in case law as I understand it, but still often made) that the relevant notion of "sex" is altered when someone gets a GRC.

Truthlikeness · 04/12/2022 22:39

Misgendering is really unclear to me. The judge in the Forstater verdict stated it did not give people the right to misgender, but at the same time how can you be protected to believe sex is real and not?
I vaguely interpret it to mean you can't deliberately use pronouns someone doesn't want you to use to their face, but if you're referring to something where sex makes a vital difference, you can say they are male-born or male-bodied and I tend to use 'they' instead of the incorrect sex-pronoun when using a preferred pronouns makes the meaning of what I am saying obtuse.

Shelefttheweb · 05/12/2022 00:11

The judge in the Forstater verdict stated it did not give people the right to misgender

No it didn’t, it said it did not give people the right to harass someone - so following a TW round saying ‘he, he, he... he is a he everyone!’ Would be unlawful as it would be harassment. Refusing to call a TW ‘she’ but using their name and maybe occasionally calling them he in conversation would not be harassment.

Bosky · 05/12/2022 08:43

Beancounter1 · 04/12/2022 21:07

Interestingly, I just googled 'physiological', as distinct from biological:

physiological
fɪzɪəˈlɒdʒɪk(ə)l
adjective
relating to the branch of biology that deals with the normal functions of living organisms and their parts.

relating to the way in which a living organism or bodily part functions.

So it is the opposite of anatomy; it is about function, not form.
Mindboggling that a person could propose to change their physiology, e.g. by taking hormones, but not their anatomy (i.e. no surgery) and still meet the definition in the act.
Makes you wonder who drafted this and with what intentions.

relating to the way in which a living organism or bodily part functions.

So it is the opposite of anatomy; it is about function, not form.
Mindboggling that a person could propose to change their physiology, e.g. by taking hormones, but not their anatomy (i.e. no surgery) and still meet the definition in the act.
Makes you wonder who drafted this and with what intentions.

I think it is more likely to be "unintended consequences" as far as hormones are concerned. The original idea was that "transsexuals" were people who had had surgery, which would also result in a change in function, eg. no lactation after a double mastectomy, no pregnancy after sterilisation, no sperm production after the chop. Most countries that had any legal recognition of transsexuals required sterilisation first but this has gradually changed with appeals to Human Rights Legislation.

I think, but am happy to be corrected, that the term "gender reassignment" comes from European Court rulings using that phrase which prompted an addition to the Sex Discrimination Act 1975 by means of The Sex Discrimination (Gender Reassignment) Regulations 1999, made under the European Communities Act.

I haven't been able to track down any instances of "physiological or other attributes of sex" before it appeared in the 1999 Statutory Instrument so perhaps it was introduced by whoever drafted it for the relevant Secretary of State, looking for a fancier way of referring to "physical characteristics" or "physical attributes"?

STATUTORY INSTRUMENTS
1999 No. 1102
SEX DISCRIMINATION
The Sex Discrimination (Gender Reassignment) Regulations 1999

Discrimination on the grounds of gender reassignment
2.—(1) After section 2 of the Sex Discrimination Act 1975(3) (“the 1975 Act”) there shall be inserted the following section—

““Discrimination on the grounds of gender reassignment.”

(3) In section 82 of the 1975 Act (general interpretation provisions) in subsection (1) after the definition of “further education” there shall be inserted the following definition—

““gender reassignment” means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process;”.

www.legislation.gov.uk/uksi/1999/1102/made

The 1999 Statutory Instrument was introduced to comply with a European ruling that includes the phrases "physical characteristics", "physical attributes" and "belonging physically to one sex":

Judgment of the Court of 30 April 1996. - P v S and Cornwall County Council. - Reference for a preliminary ruling: Industrial Tribunal, Truro - United Kingdom. - Equal treatment for men and women - Dismissal of a transsexual. - Case C-13/94.

THE COURT,
in answer to the questions referred to it by the Industrial Tribunal, Truro, by order of 11 January 1994, hereby rules:

In view of the objective pursued by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Article 5(1) of the directive precludes dismissal of a transsexual for a reason related to a gender reassignment.
eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61994CJ0013

There is a summary of relevant European Court of Human Rights (ECHR) rulings here - it doesn't include the P v S and Cornwall County Council case so maybe that was not a ECHR ruling but another European Court, I do find all these different European courts rather confusing:

European Court of Human Rights Factsheet – Gender identity issues
www.echr.coe.int/Documents/FS_Gender_identity_ENG.pdf

Anyway, it all started with this one, which is a fascinating read.

CASE OF REES v. THE UNITED KINGDOM
(Application no. 9532/81)
JUDGMENT, STRASBOURG 17 October 1986

12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics.

14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics.

16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the Register". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong’s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual’s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant’s psychological sex was male, he should be assigned male.

On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant’s psychological sex was not decisive and that, "in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)", he was "unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded". No further evidence in support of the applicant’s request was subsequently submitted.

Not a mention of "gender" anywhere in the ruling; "psychological sex" is referred to with some scepticism and operations are for "sexual reassignment".

Rees lost the case to have birth registration and certificates altered to reflect "psychological sex" but the fact that the "sexual reassignment" operation (double mastectomy) and other "medical treatments" had been on the NHS was interpreted as weighing in favour of "legal sex" being altered.

The two different meanings of "identity" in this paragraph show how things were starting to get muddled:

41. The Commission additionally relied on the fact that the United Kingdom, through its free national health service, had borne the costs of the surgical operations and other medical treatment which the applicant had been enabled to undergo. They considered that this medical recognition of the necessity to assist him to realise his identity must be regarded as a further argument for the legal recognition of the change in his sexual identity; failure to do so had the effect that the applicant was treated as an ambiguous being.

"realise his identity" - Rees (female) has a "male identity" ("psychological sex"?) that the body must be modified to reflect

"change in his sexual identity" - from female to male ("apparent sex"?)

As far as European Law and UK Law are concerned this looks like the first attempt to enshrine "gender identity" as the determiner of legal sex, although back in 1986 it was referred to as "psychological sex".

Abccde · 05/12/2022 08:48

I think it is a very badly worded law.

It us not currently being used as intended. It was written so the very small number of people with gender dysphoria who transitioned could live easier.

It has been manipulated by Stonewall et al.
Tightening up its wording will not take away amyones rights - it will simply stop the middle aged men proud of their penises from abusing it.

RoyalCorgi · 05/12/2022 09:47

OP, a lot of us have been asking this question for a long time! The wording of the act is appalling, and it is just extraordinary to think that lawyers must have been consulted in drafting the bill, that it would have been reviewed by senior civil servants and cabinet ministers and scrutinised in both the House of Commons and the House of Lords. Why could no one see the obvious problem that this is a definition of "gender reassignment" so vague as to be meaningless - or worse, so vague that it could mean anything?

If they'd defined it as legal reassignment (getting a GRC) or medical reassignment (surgery and hormones) that would have made some kind of sense. But "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex"? What on earth is that about? The idea that someone proposing to undergo reassignment is protected is bad enough - literally anyone could say they are proposing to undergo reassignment - but the phrase "other attributes of sex" takes the biscuit. As you say, what "other" attributes can there be, apart from the physiological?

GhostOrchid · 05/12/2022 12:36

With “proposing to undergo” I always assumed they had in mind someone informing their employer that they intended to transition, to protect them from discrimination or termination of employment. It doesn’t seem to make much sense in other contexts.

Abitofalark · 05/12/2022 13:13