Equality act question

[Catsanfan]

Hi all

Tired as child woke me up very early, so I apologise if this is a ridiculous question. I have been glimpsing the equality act due to a flyer/document my eldest child's school is pushing and an looking at 2 of the protected characteristics: gender reassignment and sex. To my mind, the 2 directly oppose each other and my brain is melting.

Help, wise women of mumsnet!

An 11 year old boy who is planning his transition is not given any rights to the girls' changing room under the EqA. The relevant paragraph is Equality Act 2010, Schedule 3, Part 7, Paragraph 28:

Gender reassignment

28(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2)The matters are—

(a)the provision of separate services for persons of each sex;

(b)the provision of separate services differently for persons of each sex;

(c)the provision of a service only to persons of one sex.

OK, well that is a relief. However, if GR includes any person who wishes to transition then the EqA - in effect - protects the characteristic of GI, which is something I always thought was not the case. I feel this is sticky terrain and I immediately wonder what previous rulings have passed. I would also be very interested in knowing how this knits with the latest government advice to schools giving them instruction that they do not have to go along with a child's wish to socially transition at school.

The law is an ass, I tell you!

If by extension the law protects GI, then schools are in their legal rights to teach GI. Are schools allowed to teach 99 genderbreads as fact? Again, I thought not but maybe I've overlooked this nonsense despite reading around this topic for years now.

YahdahYahdayYoo, re schools: the PC of gender reassignment can apply to children who are either A) are intending to transition in the future or B) are already undertaking the process (puberty blockers, hormones, name changes etc.)

They cannot change their legal sex/gender, via a GRC, until they turn 18. It is only at that point that they will legally become the opposite sex, and have the right to be treated as such, subject to certain exemptions etc.

A 15-year-old teenage boy who is transitioning to become a transgirl/transwoman should not be permitted into the girls changing rooms or toilets because they are legally male. There are legal requirements for schools to provide sex-segregated toilets and changing rooms in England in accordance with The School Premises (England) Regulations 2012 (I think there are similar regs in Scotland/Wales/NI but would have to check), unless they are fully enclosed unisex facilities - not cubicles.

Ideally, transitioning children would have access to a separate private facility (eg some schools have a separate single toilet for staff which they let trans children use).

It's not a bad thing if the PC applies to schools as it protects children who are transitioning from being harassed etc.

However, the limits of the PC of gender reassignment are poorly understood and often misrepresented by those who want it to go further than it does. This is what is causing a lot of friction.

I wouldn't say that the PC of gender reassignment is the same as gender identity or endorses the 99 genders stuff. There are only two sexes/genders recognised in law - you can only change your sex from male to female or vice versa pursuant to the GRA. There was one case where it was held that the PC of gender reassignment under the EA applied to someone who identified as non-binary but it is not binding on future cases and there were a number of basic problems with the Tribunal's reasoning. I would say that the way gender reassignment is referred to in legislation such as the GRA is as a solution to a medical issue (gender dysphoria) which is quite different from the notion of gender identities that have become trendy.

I appreciate you're speaking about the law @AmateurNoun. But do you not think there's a problem with the law treating children as mini adults over this? I know it's what transactivists do but doesn't society have a responsibility to see safeguarding as more important?

Children below the age of consent should not be 'transitioning". In schools (until Stonewall etc were allowed to influence policy and practice) safeguarding always took priority. Why does gender reassignment take priority rather than the protected characteristic of age, with children being entitled to protection on the basis of being too young to consent to all the harms that will come their way from puberty blockers etc.

I'm not being personally critical, but this does seem to be a feature rather than a bug amongst so many lawyers. They prioritise adult demands for gender reassignment over the protections all children are entitled to that should protect them from age inappropriate demands / issues.

I don't think I disagree with you MrsOvertonsWindow - my post was supposed to be a bland statement of the law rather than my personal views.

As far as my personal views go, I think the core of the issue for me is that transition was created as a solution for a tiny number of people with severe dysphoria, but it has been wrongly pushed to become something bigger by various forces (charities, schools, media, activists looking for the next thing in civil rights etc). I think it is possible that transition might be a good option for a small number of people (although more evidence is needed) but it is sadly becoming routine to suggest that medical intervention is necessary for anyone who is gender nonconforming, without real evidence of benefit.

I think the medical system ought to be using its usual risk-benefit analysis to determine who transition is suitable for and at what age. I am very sceptical that it is a good idea for anyone who is under the age of 25 (and those who are over 25 with other mental health conditions which make them vulnerable) to transition, although it should be left to doctors to make this determination in theory. The problem is that activists have changed the dialogue so that it is no longer seen as a medical issue, but rather one of a sort of gendered soul not matching the body in which it is housed, and that anything other than affirmation is a result of phobia. Many doctors seem to be going along with this rather than pushing back as they should.

But to me the thing is that the problem is not often the Equality Act itself, it's everything around it. There are definitely some things that I would tweak about the Equality Act, but largely I don't think it's that bad on the whole if we could actually get schools to stick to what it says.

Thank you that largely clears things up. To summarize, people can't change their legal sex until 18 thus sex as a protected characteristic prevails in cases where there is a need for single sex provision. The law allows for 2 genders thus the idea of a male/female GI exists in the legal system but goes no further (i.e. 99 genders).

However, children who plan to transition will engender a protection under the EqA. What would that look like in a school? Misgendering is classed as harassment? Deadnaming, is this allowed? If the child needs to leave school to go to the endocrinologist, should this absence be marked as an acceptable medical reason? Can a girl object to a boy participating in a single sex PE class e.g. badmington (i.e. non-contact).

I'm trying to think what this means for the protected characteristic of GR when a child claims they have a GI that doesn't match their sex.

Naively this sounds to me like gender and gender identity beliefs are being validated by our legal system. The more I read the more I am honing in on a rejection of all these terms - the vagueness of these terms, not only of GI but 'gender' globally. How can legal precedent be set on such quicksand?

Thank you - I do understand that it's not personal. But I'm still perplexed that the legal statutory responsibilities to safeguard children (and for schools to be politically impartial) seem to be so easily abandoned when the Stonewall lawyers start whining.

I just don't understand why, when discussing schools and children, so many lawyers get caught up in discussing the Equality Act etc when the primary legislation that protects children should be the priority. That's what protects children from all the self interested bad faith individuals seeking to transition children for their own ends. Yet it never gets a look in.

Or am I mistaken and safeguarding children legislation is secondary to gender reassignment?

people can't change their legal sex until 18
Yes

thus sex as a protected characteristic prevails in cases where there is a need for single sex provision.
I wouldn't phrase it like this, but sort of. It's not that the PC of sex prevails, it's that the notional transgirl's sex is male as they don't have a GRC. So when you are having things like segregated changing rooms, you exclude the transgirl along with all the other males from the girls facilities.

The law allows for 2 genders thus the idea of a male/female GI exists in the legal system but goes no further (i.e. 99 genders).
Sort of. There are 2 legal sexes/genders, but sex and gender almost always mean the same thing in law (indeed, they meant the same thing everywhere until the notion of gender being the social aspects of sex was developed around the 1950s/60s. Gender had been used for hundreds of years up to that point as a synonym for sex).

However, children who plan to transition will engender a protection under the EqA.
Yes.

What would that look like in a school? Misgendering is classed as harassment? Deadnaming, is this allowed?
That's hard to say as there have been no cases on this. This is what the new draft guidance for schools aims to cover.

If the child needs to leave school to go to the endocrinologist, should this absence be marked as an acceptable medical reason?
Yes

Can a girl object to a boy participating in a single sex PE class e.g. badmington (i.e. non-contact).
Again, it's hard to say. They definitely need to change separately. We did mixed sex badminton at my school (bog standard comp) when I was 15 or 16 anyway, I don't know what other schools do. For contact sports there are obvious safety concerns. I personally don't feel girls should be disadvantaged competitively in non-contact sports but the legal position is not straightforward.

Naively this sounds to me like gender and gender identity beliefs are being validated by our legal system.
I don't think GI beliefs really were a common thing when the legislation was drafted, and as above gender just means sex in law in almost every single context, so I wouldn't read that into it myself.

I just don't understand why, when discussing schools and children, so many lawyers get caught up in discussing the Equality Act etc when the primary legislation that protects children should be the priority. That's what protects children from all the self interested bad faith individuals seeking to transition children for their own ends. Yet it never gets a look in.

I'll caveat this by saying that I am not an expert on the safeguarding legislation (my knowledge of the EA comes from non-schools contexts), but my understanding is that there is nothing specific in the safeguarding legislation covering gender reassignment in schools, whereas we do have specific legislation in the Equality Act.

It shouldn't be a question of one law being given priority over another, although it might feel like that, but rather trying to interpret what Parliament has done as a coherent whole.

For example, it would be difficult to maintain that Parliament intended, through the general safeguarding duties, to prevent any children transitioning or even considering transitioning, when we have the Equality Act providing protection for children at school with the PC of gender reassignment. Those provisions in the EA would be redundant if the safeguarding legislation meant that.

More generally, this a difficult legal area and schools have had way too much faith in Stonewall.

This link isn't meant to derail, but in the context of people under 18 and their legal rights re starting on the path to gender re-assignment, this is an example of the type of statements that blur and confuse, and make the role of those having to implement EA legislation so difficult.

https://www.telegraph.co.uk/news/2024/01/13/saorsa-amatheia-tweedale-civil-service-puberty-blockers/

It seems a stretch to me to assume that parliament deliberately intended gender reassignment legislation to apply to children with no age limits. But I appreciate it's been eagerly jumped on by certain adult groups.
Safeguarding statutory guidance is designed to protect children from emotional, physical, sexual abuse & neglect seen in grooming, encouraging the children to engage in sexual acts, indecent exposure, exposure to porn, coercive control, exposure to adult fetishes etc.
I don't have to spell out how much of the above can be identified in some of the age inappropriate material being provided for children under the heading of "inclusion".
I suppose I'm fighting back against the notion that gender reassignment should apply to children just because of political neglect and a naivety in accepting Stonewall's demands at the time were in good faith.

This just seems to be an outrageous breach of the Nolan Principles of public life to the extent that should lead to disciplinary action. But it's the civil service, the sacred caste and an inbuilt disregard for safeguarding children

It seems a stretch to me to assume that parliament deliberately intended gender reassignment legislation to apply to children with no age limits.

I don't think it is a stretch at all myself. There are some bits of the EA which provide that certain PCs aren't relevant in certain contexts or add an age limit. For example, the provisions relating to discrimination in the context of services and public functions don't apply to the PCs of marriage and civil partnership, or age so far as it relates to being under 18 (s28). Likewise, the school provisions also don't apply to the PCs of marriage, civil partnership or age (s84). Parliament could have easily added the PC of gender reassignment in s84 if they wanted to.

The context is though that Parliament probably thought this would apply to a handful of troubled children, whose doctors had recommended this course of action. They couldn't have predicted the way things would go and that this would become such a trend. It was an unusual medical treatment for an obscure diagnosis. It wouldn't have occurred to Parliament that anyone would want to transition without this being medically recommended and considered necessary.

To use an analogy, it's a bit like having a law which protects amputees from discrimination, which you only expect to be relevant for a small number of people, but then it suddenly become trendy to have a few fingers removed to match your identity. The problem is the social contagion, and the fact that doctors are going along with this, rather than the law generally being a problem IMO.

This just seems to be an outrageous breach of the Nolan Principles of public life to the extent that should lead to disciplinary action. But it's the civil service, the sacred caste and an inbuilt disregard for safeguarding children

Absolutely but this type of statement and worse has been going on for some time and not been challenged.

And because of the position some of these people hold, their comments (which are in fact their personal viewpoint) then take on the status of being fact.

This is why the EA which has many flaws, has now so consistently over the past few years been so horribling misused.