TNBI job ad for Somerset and Avon Rape and Sexual Abuse Support

[Keenovay]

James Esses has highlighted this job ad for Somerset and Avon Rape and Sexual Abuse Support on Twitter.

https://x.com/JamesEsses/status/1972203042138476904

Trans, Non-binary, Intersex & Gender Variant (TNBI) Group Lead Facilitator
This post is subject to an enhanced DBS check and open to trans, non-binary, intersex or gender variant individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).
https://www.sarsas.org.uk/opportunities/trans-non-binary-intersex-gender-variant-tnbi-group-lead-facilitator/

He says it's discriminatory, and he may have sound legal reasons. In the comments, @RadicalRoo says, "While "gender reassignment" is a protected characteristic, it may not be applicable if a group also includes the more disparate "non-binary" and "intersex" people (people with a medical condition)."

Interested to hear what others think. On the surface of it, I support their right to advertise for a facilitator appropriate to this group. It's surely right TNBI clients should be able to have a TNBI counsellor rather than be asked to "reframe their trauma". And right that they can request a TNBI counsellor without accusations of bigotry. The outrage is that Edinburgh Rape Crisis and Brighton's Rape Crisis Centre Survivors' Network didn't grant women the same privilege until they were forced to.

I support their need to have someone like them working in a centre designed for them. Just as I support the need for female workers for female centres
The only thing I don't understand fully is the addition of intersex. Presumably they're meaning intersex people who live as the opposite sex. But there are many intersex people, especially in Western countries, who live as their sex.

For it to be lawful to exclude applicants in preference to to a particular group, that group has to have a shared protected characteristic, or all share more than one characteristic. (eg disabled females)

None of the identified list has as a matter of law, has a protected characteristic and certainly even if they did it is not a shared characteristic.

So at the first hurdle it fails because it does not fall within sch 9 part1.

Even if it did it would have to be a proportionate means to a legitimate aim.

Since the definitions are seeking an unprotected ideological point of view of the applicant, it is completely unlawful

I'm not sure that there's a problem with this, legally. Being not TNBI isn't a protected characteristic, so they can preferentially employ a TNBI counsellor without relying on Schedule 9 at all, and therefore without needing to meet its requirements (legitimate and proportionate aims etc).

I think this is better than the alternative which is men in women's groups. Trans identifying males probably do need a lot of support, they just don't need to get it with women in female only spaces.

I think the shaky ground would be:
People without the PC of having a DSD because some of them can apply (if they instead have the PC of GR) and some can't.
And
People without the PC of GR because again some of them can apply but some can't.

What they should do is just say "only for non binary applicants" which as it isn't a PC (like being care experienced, or having twins) can be the basis for a group of people with no discrimination.

I can’t see an issue with this.

This seems fine to me too, both legally and morally.

Who is the hypothetical person who is being discriminated against? Leaving aside their hypothetical dickishness in applying for the role, they'd need to identify a PC that they have on the basis of which they're being disadvantaged. But since none of non-trans, non-NB, or non-intersex are PCs that seems unlikely to succeed.

TNBI isn't a protected characteristic.

Gender reassignment is a protected characteristic.

Non-binary is not a protected characteristic.

Having a DSD is not a protected characteristic, unless it's included under disability, but I don't think most people with DSDs would be classed as disabled using the definition in the EHRC guidance.

In the Equality Act, a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.

I wouldn’t normally but the fact is trans people claim discrimination if an ad for a job is women only but are allowed to state who can do jobs for trans groups. ERC even appointed a biological male to a female only job because he claimed to be a woman and they would not tell him no.

Regardless of whether it’s correct in law, you’d have to be a real cunt to apply for that job if you didn’t have the preferred characteristics. Or to frustrate their recruitment process with FOI, legal challenges etc. Just because TRAs have done it to women over and over doesn’t mean two wrongs make a right. These people having their own space is a step towards getting trans identified males out of womens spaces and I support that. This is a turning point where we can frustrate their process when they are finally moving towards third spaces and prove we just hate transpeople or we can choose to live and let live and let the law catch up with however it needs to change to let third spaces happen.

You really think this will stop TIM accessing women’s groups? Brighton rape crisis centre had trans inclusive groups and one not. The trans community got the female only one shut down as it was “not inclusive”. Leaving women with no space. ERC employed a man as their chief exec in a female only role. He told women wanting single sex support to “reframe their trauma”. So they had trans inclusive groups but still demanded access to women’s spaces. And now have the audacity to say they want trans only groups. Can you understand why some find this advert galling?

Asking for people with experience of working with these groups is not a problem. It's qualification for the job. They want to set up a 'peer-designed and peer-led space'. Fine.

Claiming that they are only going to appoint people who are in these categories (discrimination against all others) because 'exempt under the Equality Act 2010 Schedule 9' is untrue. Misunderstands the law. It's not necessary to do that as they are clear that they want someone who has links to and can speak for this community.
They are discriminating illegally because they are saying 'No others than these special people can apply'. It's also a bit crazy if they want the best and most effective person as I would assume you can advocate for and facilitate for these groups without being one of them. No allies need apply.

As illegally expressed you cannot apply for this even if you are Suzie Green with decades of experience. This job is not about ability, skill or track record. Most job adverts have some interest in these.

But how could anyone prove they were non binary? You’d have to have a definiation of non binary first. If I’m a bloke who likes make up and glitter am I non binary or just a bloke who likes sparkly stuff?

I assume that being gender fluid or intersex would create problems too. This is all about virtue signalling. I hope they get someone who can do the job of supporting others.

I hope they get the people they deserve.

The ad fails even the most basic checks against the legislation.

Trans, Non-binary, Intersex & Gender Variant (TNBI) Group Lead Facilitator
This post is subject to an enhanced DBS check and open to trans, non-binary, intersex or gender variant individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).

trans - not a PC it only may be a PC
non-binary - not recognised in law at all
intersex - may or may not qualify as a PC
gender variant - not a PC it only may be a PC

Their problem is that they are looking for a person to work in a group with PC and without PC so test 1 fails : (a)it is an occupational requirement,
Then they are looking for a person who can come from (what they think is) a pick-n-mix of PC however the law is "particular protected characteristic" and the service provision is to a mixed group with no shared particular protected characteristic so test 2 fails : (b)the application of the requirement is a proportionate means of achieving a legitimate aim, and
So they cant rely on this to lawfully exclude applicants who meet all other requirements: (c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).

https://www.legislation.gov.uk/ukpga/2010/15/contents

SCHEDULE 9Work: exceptions
Part 1Occupational requirements
General
1(1)A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—

(a)it is an occupational requirement,
(b)the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2)The provisions are—
(a)section 39(1)(a) or (c) or (2)(b) or (c);

39Employees and applicants
(1)An employer (A) must not discriminate against a person (B)—
(a)in the arrangements A makes for deciding to whom to offer employment;
(b)as to the terms on which A offers B employment;
(c)by not offering B employment.
(2)An employer (A) must not discriminate against an employee of A's (B)—
(a)as to B's terms of employment;
(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c)by dismissing B;
(d)by subjecting B to any other detriment.

(b)section 41(1)(b);
(c)section 44(1)(a) or (c) or (2)(b) or (c);
(d)section 45(1)(a) or (c) or (2)(b) or (c);
(e)section 49(3)(a) or (c) or (6)(b) or (c);
(f)section 50(3)(a) or (c) or (6)(b) or (c);
(g)section 51(1);
F1(h)section 60A(1).]

(3)The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
(a)in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);

7Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is 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.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

(b)in the case of marriage and civil partnership, as references to a requirement not to be married or a civil partner (and section 8(2) is accordingly to be ignored).
(4)In the case of a requirement to be of a particular sex, sub-paragraph (1) has effect as if in paragraph (c), the words from “(or” to the end were omitted.

This is about provision of support for rape victims with specific characteristics. If they find it healing to have a specific demographic of supporter, I can’t see why anyone would object or think that they should provide the sport, despite them not being of the preferred demographic.

I do understand people finding this hypocritical if those expressing the preference / doing the recruitment are also the people insisting that transwomen must be included in women’s provision. However, I fail to see how objecting is the way forward - it ultimately suggests you are arguing for one rule for one group and a different rule for another.

I'd be inclined to give them a pass if they dropped the bit in brackets.

If they get away with misquoting and misusing the law in this regard, they'll try it on everywhere. They need pulling up on it.

Legally anyone can apply.

If they then say no you can't have the job, it's bollocks because there's no legal definition of non-binary. Nor is there any legal protection for non-binary because there is no legal definition of non-binary.

You just have to claim you are.

So the ad isn't illegal in the sense that it prohibits anyone, it's just a nonsense because it if they try to enforce the concept it has nothing to stand on and that would be illegal.

Explanatory Note to Schedule 9 Part 1:

This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.

This Schedule permits preferential employment (if there are good reasons) of someone with a PC, even though this would normally be illegal discrimination against candidates with a complementary PC, or of someone without a PC, even though this would normally be illegal discrimination against candidates with the PC. For instance, a job advert for men only would discriminate against women. An advert for non-transsexuals only would discriminate against transsexuals.

There is no complementary PC to that of being a transsexual person (or a married person), so it would not normally be illegal to preferentially employ a transsexual person or married person, thereby excluding non-transexuals (or single people), because being non-transsexual (or single) is not a PC. The situation falls entirely outside the Act.

Requiring someone who is NBI also falls outside the Act because you are not excluding anyone with a PC (except, possibly, that of GC belief , which would be easy to justify).

Agree. It's poor management as I don't think they need to restrict in this way. But claiming its legal to discriminate in this way because of EA is untrue. That should be challenged

The problem is the ad is not lawful and opens the organisation up to a financial loss.

In real terms they should have gone with the PC Gender reassignment and added in that the person needed to have experience in running groups with the specific demographics.
They should remove the ad and rework the hire criteria so that they get the same results and the same list of applicants in a lawful way.

It highlights a HR weakness in that they do not understand why the exemption is there and for an group which should be using the exemption daily within its core "business" model that is a serious managment flaw.

They could just advertise the post and say that they want applicants with experience in counselling the demographic they are trying to serve. It's unnecessarily complicating matters to try to restrict access to people who have characteristics some of which are protected, or could be, and some of which are not, or which are not recognised in law. And to spuriously claim to be relying on an exception in the Equality Act just puts the cherry on top.
Just advertise the job, people.

ETA:
Didn't RTFT so a bit of cross-posting - sorry!

Thanks for the responses. So sounds like Esses is right. SARSAS invoking the Equality Act in this way is illegal, even if we support the spirit of seeking a candidate suitable for a particular demographic.

It seems this isn't their first rodeo. They invoked the same clause in an advert in 2023 and were called out for it on Twitter: https://x.com/Sexnotgender_/status/1610633935456813059

Out of interest, I looked up SARSAS code with respect to women only spaces. A version of their website from May, helpfully archived on Twitter is full on TWAW:

"We provide women-only spaces as part of a trauma-informed approach to gender-based violence. This means that some SARSAS services are women-only. Our definition of women-only is inclusive of trans women. We offer women-only services on Tuesdays and Wednesdays. This means that support will provided by a woman and that the support space will be women-only."

The current version suggests they've taken the Supreme Court ruling on board. It states "trans-inclusive feminism is key to our values and central to our services" but seems to separate the women-only service from the new TNBI group, hence the current advert.

"As part of our trauma-informed approach to supporting survivors, we can provide women-only therapeutic spaces."
&
"In response to findings from TNBI focus groups, we have created a TNBI peer support group – a dedicated space for mutual support with other TNBI victim-survivors."
www.sarsas.org.uk/our-work/equity-diversity-and-inclusion/

I can't help wondering how vocal staff will be about directing survivors to one group or another however. Will it be presented as a choice? Self ID - until a woman complains? Time will tell, but it feels like the situation in Brighton, where the service has been dragged into line but is still rather sulky about it. I hear a touch of that in the phrase, "we can provide women-only spaces", rather than a brisker "we provide". Hm!