Tougher transgender guidance for schools is unlawful, Sunak told

[Igneococcus]

Sorry can't do sharetoken on this device, I'll do one later if nobody else posts one.
Tougher transgender guidance for schools is unlawful, Sunak told (thetimes.co.uk)

What an utter mess this all is.

"Prentis said that a blanket ban would be unlawful because the Equalities Act states that gender reassignment is a “protected characteristic”, regardless of age. She gave the same advice when ministers asked whether there could be a ban on social transitioning for primary school children."

Surely this is the best thing that could have happened because it can now be tested in court, and either laws clarified, or new ones proposed. Instead of us all living in this vague, gaslighting alternative universe. It needs to be sorted, and sorted once and for all

Good thread on twitter about this
https://twitter.com/michaelpforan/status/1681619724034080770?t=R1R4W8A1trJ03CcXLyt-Eg&s=19

First some background. The Equality Act covers a list of protected characteristics. Gender reassignment is one of them. It’s not tied to the Gender Recognition Act, you don’t need to be in the process of obtains a GRC to be protected and it almost certainly covers minors.

This means that children who are experiencing gender distress are likely protected from gender reassignment based discrimination. There is a lot of confusion and misinformation about what being protected under GR means and this is likely affecting how guidance is being drafted.

Some advocates argue it means you are entitled to be treated as if you were the sex you identify with unless the policy passes a proportionality test. That’s incorrect. If you’re protected under gender reassignment you’re entitled not to be discriminated against on that ground.

The test for determining discrimination is called a comparator test: whether you would be treated less favourably than another person who is identical in all relevant respects except the protected characteristic in question.

We know from Green v Secretary of State for Justice that if you don’t have a GRC (no children have GRCs) your sex is your biological sex. So a trans boy is female for the purposes of the Equality Act. The comparator then is a girl without gender reassignment.

This is very important. It means that you need to ask whether other females would be required to wear the girls uniform or be referred to by she/her pronouns. They would be, so it’s not direct discrimination. Where this gets complicated is indirect discrimination.

Indirect discrimination occurs where persons who share a protected characteristic are put at a particular disadvantage and where there is no legal justification for doing so. I’ll return to that later.

So, continuing the background. Being protected under gender reassignment doesn’t entitle you to be treated as the sex one identifies with. But some very prominent advocacy groups have argued that it does. This has led to a lot of confusion.

Added to that, some have argued that the structure of the Equality Act is the reverse of what it actually is. The default is equal treatment. There are then exceptions built in that reverse this presumption in order to allow for single sex services, associations and schools.

But there is an exception to the exception which says in very rare circumstances, it may be disproportionate to have a single sex service - for example a men’s only barbers that refuses to cut the hair of a short haired woman.

So here’s the structure:

1. In general equal treatment
2. Some areas where presumption is revered to (in general) unequal treatment to allow single sex services
3. In very rare cases, an exception to the exception.

But some have argued very persistently the exact opposite.

Some have argued that Gender Reassignment means you’ve a right to be treated as if you had changed sex when you haven’t and they have argued that 3 (The exception to the exception) is actually the norm: that it’s the default when it isn’t. This has caused so much confusion.

So anyone drafting guidance for schools is going to be cognisant of the fact that if you say ‘X is the general rule but in very rare circumstances Y can be done’ there will likely be a concerted effort to make Y the general rule when it is suppose to be the exception.

I suspect the guidance has tried to avoid this because it wants to provide guidance and not add to more confusion. Add to this the fact the Cass report has indicated that social transition is a medical intervention that should be carefully considered before any action is taken.

Against that backdrop the guidance likely sought to provide clear rules with no exceptions. The problem is that rules without exceptions run into problems with proportionality and proportionality is triggered if a policy has a particular impact upon kids who share a PC.

So there’s an issue of indirect discrimination and a question of justification for blanket rules. It’s not impossible for them to be justified as proportionate, blanket rules have been proportionate.

But the fact a rule has no exception is very likely a black mark against it in proportionality analysis. And this is probably what the legal advice from the Attorney General concluded.

So there will either be new advice issued that tires to make it clear that the exceptional case really is the exceptional case and not the norm, or legislation will be introduced to make it clear that schools can have blanket rules here.

https://threadreaderapp.com/thread/1681619724034080770.html

I hope I'm being unnecessarily cynical, but this sounds more to me like a kick into the long grass. 'We'd like to fix it but we can't.' And the BBC article on this ends with a line which suggests that if this ever does make it out of government, the teaching unions will then kill it on the grounds of being unreasonable and unworkable.

If we do not have a government with the stomach to deal with political capture at the heart of all this then it's endless stamping on sparks and ignoring the roaring fire itself.

"What we want would be illegal so we'll do nothing /fight costly court battles instead" has become the Tory government's go to excuse.

Wake up and smell the bullshit folks.

So what’s the alternative do a Labour and just go with gender ideology

How is that better?

Those who want that can enjoy it.

No thanks. I’ll never vote for it and if it all gets worse they can take the responsibility

Exactly. Where we are is ridiculous and we have Starmer looming in full gender ideology mode.

I don’t care if it’s court case or vote just clarify and imo protect dc more

This is the biggest threat to my self avowed "humanist" label. Ever since becoming an atheist as a teen and more and more a free speech champion as I've gotten older, I've always said to my friends who rail against this by, they either calling it demonic forces filling the void left by Christianity being marginalised in the West, or the atheist/uber nihilist take that the trans culture grab is the result of cultural Marxist/post modern march thru the institutions.

I've fought both opinions. Despite being hugely troubled by TRA, racialised politics and woke capitalism, I'm not moving back to Christianity anytime soon, and demons at work undermining humanity just doesn't appeal. But I can sympathise with the "chaos fills a vacuum" take.

My resistance to the theory of bad actors like Pritzker, pressure groups like Stonewall and Mermaids, activist legals like Dentons etc, plus gargantuan structure of academic post modern scaffolding for the TRA monster, pushing this edifice on relentlessly, is harder and harder to deny, especially when the quote above outlines just how hard the activists and bad actors worked, in the effective pre social media age, able to work the system pretty much unsupervised and uncontrolled, in the immediate post GRA 2004 pediod.

Once the foundations were dug and footings laid, and the superstructure was up after 2004, all that was needed was the legal/academic drive to flesh out the rules and penalties, and then social media, especially during lockdown, did the rest in creating the customers and chilling the temperature for dissenters. That we've all seen in the last 7-10 years.

However, I still feel this is too simple and sinister an explanation. Bad actors and academic intellectual firepower couldn't ever be near enough alone to create the unstoppable force we've seen rippling thru Western institutions.

It still needed a population unlikely to talk back, clever elites happy to stop questioning and eager to accept, the unique boiling pot that is social media, and the also unique suspension of people's normal tripwires and trigger points during Covid, to remove enough barriers to faster unravelling.

Where I question my humanism, is that I always railed against criticisms that humans were bad, stupid, complicit, cruel. Yes, some were. But I was also confident humans would bring it around, no need for God or conspiracy theories.

Today? I'm really struggling to positively feel a humanist, as societal change hurtles towards an unknown destination for which there are so many warning signals of. It's as if our ruling classes, academic intellectual class, our artists and media, have switched off all their skepticism, all their self questioning, all their trip wires and trigger points, to en masse bunker down, and take humanity down with them. Even that this toxicity affects children directly seems immaterial.

Either I'm still a humanist and these people who were have moved away, or it wasn't ever a label worth proudly applying to myself.

I find it strangely reassuring that there is no ill in this country that you cannot lay at the feet of the Tories.

I wish it was just the tories. The lack of care about safeguarding children from the other parties is incredibly sinister. The Lib Dems I know have a long history of dodgy adults but I did hope that labour might be different.

I, too, miss the days when I could assign all failings to the Tories. It was at least some small comforting reassurance that we knew who the baddies were.

The authoritarian left and gender ideology and stamping down on dissent is the most sinister movement I’ve seen

Add in indoctrination of children and NZ / Aus / Canada style infomercials and media and political blind bias

And yeh it’s up there.

Oh and society backed male violence dressed up as righteous anger

Yeh it’s great

ArabeIIaScott · Today 16:50
'Protection against discrimination is now extended to pupils who are pregnant or have recently given birth, or who are undergoing gender reassignment.'

Protected characteristics 1.9 It is unlawful for a school to discriminate against a pupil or prospective pupil by treating them less favourably because of their:  sex  race  disability  religion or belief  sexual orientation  gender reassignment  pregnancy or maternity

Gender reassignment

3.3 ^Protection from discrimination because of gender reassignment in schools is new for pupils in the Equality Act, although school staff are already protected. This means that for the first time it will be unlawful for schools to treat pupils less favourably because of their gender reassignment and that schools will have to factor in gender reassignment when considering their obligations under the Equality Duty*.

3.4 Gender reassignment is defined in the Equality Act as applying to anyone who is undergoing, has undergone or is proposing to undergo a process (or part of a process) of reassigning their sex by changing physiological or other attributes. This definition means that in order to be protected under the Act, a pupil will not necessarily have to be undertaking a medical procedure to change their sex but must be taking steps to live in the opposite gender, or proposing to do so. A glossary of terminology related to the transgender field can be found on the Gender Identity Research and Education Society website.

3.5 The protection against discrimination because of gender reassignment now matches the protection because of sexual orientation in schools. That is protection from direct and indirect discrimination and victimisation, which includes discrimination based on perception (see 1.11) and on association (see 1.10). Schools need to make sure that all gender variant pupils, or the children of transgender parents, are not singled out for different and less favourable treatment from that given to other pupils. They should check that there are no practices which could result in unfair, less favourable treatment of such pupils. For example, it would be unlawful discrimination for a teacher to single out a 18 pupil undergoing gender reassignment and embarrass him in front of the class because of this characteristic.

3.6 It is relatively rare for pupils – particularly very young pupils – to want to undergo gender reassignment, but when a pupil does so a number of issues will arise which will need to be sensitively handled. There is evidence that the number of such cases is increasing and schools should aim to address any issues early on and in a proactive way. Further guidance is available from the GIRES website – see paragraph 2.19 for links to their bullying guidance. In addition, a partnership of bodies in Cornwall have produced a useful guidance document for schools and families'

All the above taken from 2014 DofE Guidance, I think that's the most up to date?

The Equality Act 2010 and schools Departmental advice for school leaders, school staff, governing bodies and local authorities

Thank you for that. It explains a lot.
The current problems of schools socially transitioning children evidently isn’t all the schools’ fault in the way it seemed.

When it says “protection from discrimination because of gender reassignment is new for pupils in the Equality Act”,

that suggests that a section about gender reassignment for school children was added to the EA in 2014? Does anyone know where it specifically adds that in the EA?

Yes. But mainly because the EA 2010 protected characteristic of “gender reassignment” doesn’t only cover individuals who have obtained a Gender Recognition Certificate (who would have to be over 18) under the GRA 2004, it also covers individuals proposing to undergo “a process of” gender reassignment which can include changing the non-physiological “attributes of sex”.

Thanks Arabella. I think this is what I was thinking of. It is not at all as simple as schools misinterpreting the EqA and the DfE guidance. The issues and ambiguities are in the EqA and were there from the start.

Which is to say, a feeling in one's head.

The EA specifically talks about working towards physical change.

What you are saying is what TRAs are saying. ie which is how social transitioning has been allowed to spread like wild fire. Identifying

If adults, whether in school or at home, had said quite clearly unless you are working towards physically changing, ie surgery, you aren't trans. You are someone who wants to break down the straight jacket of gender.

And if schools hadn't been so backward and allowed gender free uniforms it would have put a huge dent in this socially contagious misnomer.

Cant think why you would use the TRA sleight of hand arguement, when it isn't even valid.

Social transitioning, ie the fad or trend that children are captured by and being pandered to, have nothing whatsoever to do with gender reassignment as described in the EA.

And if there are those who are hoping for surgery that process doesn't start until you are 18.

“It still needed a population unlikely to talk back, clever elites happy to stop questioning and eager to accept, the unique boiling pot that is social media, and the also unique suspension of people's normal tripwires and trigger points during Covid, to remove enough barriers to faster unravelling.”

Covid didn’t happen until 2020, RealityFan. This was all well embedded years before before then.

It was September 2017 when Maria MacLachlan was assaulted at Speakers Corner by a 26yo male activist who went by the name of Tara Wolf.

The petition to have the 6ft+ male sex worker Tara Hudson moved to a female prison after Hudson’s conviction for assault on a male bartender was five years before the pandemic, back in 2015.

Keira Bell was put on puberty blockers by the Tavistock in 2013 and had a double mastectomy in 2017.

Those campaigning behind the scenes for this to happen weren’t just campaigning in the legislature, they were campaigning across all possible fields of influence: health, education, the media, trade unions and the charity sector.

Again this saying the ambiguity in the EA.

Read the Act as in the era it was written.

Dont fall victim ot the weasel words of the TRAs.

Until Stonewall jumped on the bandwagon of "trans" as this ever expanding umbrella (mainly about people not conforming to social norms and nothing whatsoever to do gender reassignment ie surgery) no one would have thought anything in the EA or the GRA had anything to do with young people experimenting with how they want to present themselves.

I dont understand this passive acquiescence to the way TRAs have manipulated language to further their cause.

Just as it is possible to see how the deliberate attempt to try and make sex and gender mean the same thing, it is possible to see how the distortion of language seems to have made even posters on FWR accept that gender reassignment (the protect characteristic) is the same as socially transitioning.

What purpose does it service to adopt the language of TRAs who are out to undermine women's rights.

@ScrollingLeaves

“that suggests that a section about gender reassignment for school children was added to the EA in 2014? Does anyone know where it specifically adds that in the EA?”

It’s been explained at various points in this thread, but if you read my post at 19.38, it sums it up.

It’s the result of the definition of gender reassignment in EA2010 which goes wider than being in possession of a GRC and applies to all ages.

Well we have Dentons roadmap to institutional capture to thank for this: https://www.trust.org/contentAsset/raw-data/8cf56139-c7bb-447c-babf-dd5ae56cd177/file

Completely agree and I've only really heard the phrase socially transition as a differential to medical transition since it was highlighted in the Cass review as a thing to be avoided because it's damaging, so it's not a long standing part of the lexicon at all.

Until Stonewall jumped on the bandwagon of "trans" as this ever expanding umbrella (mainly about people not conforming to social norms and nothing whatsoever to do gender reassignment ie surgery) no one would have thought anything in the EA or the GRA had anything to do with young people experimenting with how they want to present themselves.

Organisations like Press for Change and GIRES were working on expanding the trans umbrella well before the EA was passed, and even before the GRA (I think Press for Change were one of the groups that helped get the GRA through).

Have a look at this thread:
https://www.mumsnet.com/talk/womens_rights/3463920-Lets-go-back-to-2007

I quoted from Press for Change earlier about the change to the language. They said they'd been working on this change of language since 1996. The bit I quoted earlier was from 2007, well before Stonewall got involved.

I think the point is that the “other attributes of sex” (other than physiological attributes) wording in the EA2010 definition of “a process of” gender reassignment could be argued to cover clothing, names, pronouns, stereotypical behaviours and stereotypical interests. Because if you exclude physiological attributes of sex and refer to “other attributes”, what else is there other than these stereotypes?

The EA2010 didn’t specify that “other attributes” meant clothing, name, behaviours etc, and didn’t invent the term “social transitioning” to describe them. However I can see how a legal challenge to the schools guidance, if it included a ban on social transitioning, could easily argue that “other attributes” does cover so-called social transitioning, despite not being specifically described in the using that particular terminology.

Yes, yes we all know about the GRA etc., being the Trojan Horse.

But for those doing the actual work of the language of the GRA and EA would not have been thinking as those pressure groups were.

But of course this also illustrates what the problem has become. Had the pressure groups been more overt than relishing in ambiguity sex in the EA would have been clearly defined.

So although a bit late clarifying sex in the EA remains a priority - all the better alternative is to repeal the GRA.

The there wouldn't be a problem.

Did you not read the 2014 Schools guidance? I linked to it upthread.