Question about the equality act

[HagoftheNorth]

If I understand it correctly, the equality act prevents discrimination on the basis of 9 protected characteristics. So, that prevents sex discrimination, including on the basis that someone is male; race discrimination, including on the basis that someone is white etc.

Does this mean that, with respect to the protected characteristic of gender reassignment, people are protected from discrimination on the basis that they have NOT undergone gender reassignment? Ie, if someone who has that protected characteristic is treated more favourably than someone who doesn’t, that would be actionable?

No sub-plot, just musing

This is a good question and now I am musing!
(sorry not helpful but thanks for raising it)

Not undergoing gender reassignment is not a protected characteristic. SImilarly, people who are not pregnant or not disabled or not married aren't protected from discrimination on that basis.

Not having a religion is however a protected characteristic - it's explictly mentioned in the act. And of course everyone has an age, race, and sex and is protected from discrimination on the basis of those.

My understanding would be that this is already covered under the protected characteristic of sex.

Gender reassignment doesn't supersede sex, so they remain distinct.

If a man is undergoing gender reassignment (whatever stage they are at) they are protected from being treated less favourably than a man who isn't. Obviously likewise for a woman.

The term gender reassignment is interesting in itself because it only applies to people who have a gender in the first place - I don't - in order for it to be reassigned. It seems to be mostly agreed that sex and gender are different, so logically the word gender must mean "gender identity" when applied to a person, because it is describing the "gender" that "aligns" with who they are.
So anyone who isn't going through gender reassignment could either be a) someone who believes that they have a gender (identity) and is happy with the one that they were "assigned at birth".... commonly, and conflatingly, referred to as "sex assigned at birth" or b) someone who doesn't have a gender (identity) at all. Either way, the PC of sex covers them already, just as it would when it is in combination with any other of the PCs.

No, I don't think so because Gender Reassignment is not a characteristic that everyone has.

Everyone has a sex (male or female) so sex discrimination can apply to men and women.

Everyone has a race / ethnicity. I'm not getting into a philosophical discussion about 'race' but using it as a layman's term - we all have a race / ethnicity of some sort. White, black, brown, mixed race etc. So racial discrimination can apply to white people too.

Gender Reassignment, on the other hand, only applies to some people.
I guess in a way it's similar to the characteristic of pregnancy and maternity, or marriage and civil partnership. Not everyone is pregnant or is married. So maybe is there a possibility for someone to claim discrimination if a pregnant woman or married person is seen to be treated more favourably?

Dunno. Good question. I'm not a lawyer. 🤔🤔

It is an interesting question and similar to the one I have about single people and the marriage and civil partnership pc.

Like giving PC of GR prority of a private room in a hospital?

Its legal to allow positive discriminate for sex and race, so i assume it the same for GR. If it can be shown that those with GR avoid hospital, private rooms might encourage attendance?

The gender in 'gender reassignment' is not quite the same as gender identity. Anyone can have a gender identity (if you believe in such a thing). I think it is closer to 'legal sex' reassignment, albeit a person's legal sex does not formally change until a GRC is issued. When poor EDI trainers refer incorrectly to 'gender identity' being the PC, they miss that this could mean a 'cis' person could also claim discrimination, harrassment etc.

That's my take anyway, having read up on it over the years.

seems to be mostly agreed that sex and gender are different, so logically the word gender must mean "gender identity" when applied to a person, because it is describing the "gender" that "aligns" with who they are.

A lot of the legal and judicial profession disagree that gender and sex are different.

In the Christie Elsn-Cane case, Lord Reed said that legislation across the statute book assumes that all people can be categorised in two sexes or genders – “terms which have been used interchangeably”.

Lady Haldane's judgement makes it clear the changing gender officially through a GRV changes a person's sex in law.

Quote fail. First paragraph above is a quote.

Oooh this is a really good question.

I'm not sure the argument that not everyone has a gender applies here because many organisations / employers that people cannot avoid interacting with are acting as if gender is a fixed fact and that everyone does have a gender. If everyone has a gender surely if you don't undergo reassignment you should have equal protection in law as if you did. Also, really, as it's a belief system, you should be protected under lack of belief (and not compelled to believe by your employer).

Schools have sometimes treated children 'reassigning their gender' in a very different way to children who are not, compelling the speech of the latter but not the former. I.e. they haven't gone through all pupils and asked them what their preferred pronouns are and enforced usage of this equally so surely this is discriminatory?

If gender and sex aren't different then it's sex discrimination as well to treat children who have different gender identities (or none) differently as has been done.

The whole thing is a mess though. The law is a mess and the lawyers know it and are trying to fudge. In a way which - ta da! - discriminates against women, children and also religious minorities. Funny how they always somehow know who they want to bias the law in favour of....

Yep, understood. That's why I was saying mostly agreed, not completely agreed.

I really hope that the work that the EHRC has been doing to clarify their guidance and the June parliamentary debate leads to better clarity in the Equality Act 🤞🤞 Until then there's more risk of other unhelpful precedents like these being set in law in Scotland or the rest of the UK.

@ZuttZeVootEeeVo

Its legal to allow positive discrimination for sex and race

It is? Since when?

Its called positive action, or something. But yes, its legal.

Positive action is lawful but positive discrimination is not.

www.gov.uk/government/publications/positive-action-in-the-workplace-guidance-for-employers/positive-action-in-the-workplace