Can't believe I'm writing this, but disappointed in JK today

[RobynMiller]

I know she is just one person but her tweets today are really undermining the whole GC argument.

Link: https://x.com/jk_rowling/status/2046948644373274709

'Nothing's changed. I was being honest about how I feel about an individual trans woman I know, who was a gay man pre-transition, and who I met for the first time post-transition. Objectively speaking, she has physical characteristics that make it fairly obvious she wasn't born female, but she's a gentle, funny person I've never referred to as anything other than 'she' and 'her'. I find it perfectly easy to reconcile my fond feelings towards her, and my experience of her as someone with very female-coded energy, with a belief that she hasn't literally changed sex (and incidentally, she doesn't believe she's literally changed sex, either).'

Basically, someone asked her about the trans identified male she mentioned in her 2020 essay and this was her response.

Does she not realise there can be NO EXCEPTIONS? Give an inch they'll take a mile and all that. It doesn't matter that he is gentle and funny or that he has very female-coded energy whatever the hell that means.

This does make it seem like when she calls TIMs out she is now doing it maliciously as she is perfectly happy to play pretend if she likes them enough.

Just so frustrating as it basically says that 'we could all play along with TRAs just fine and are choosing not to because we're such meanies 😡'

Are you saying employers should be able to discriminate based on gender reassignment?

There's a subtle distinction between undergoing a process to change the physiological and other features of your sex, or proposing to - and believeing you are actually the other sex.

It's complex, but basically yes. I understand they can't because gender reassignment is a protected characteristic. But pretending to be something you're not and cannot possibly be (and often that someone else actually is, so you're appropriating their lived experience) shouldn't have become a protected characteristic IMO, and it's bizarre that it has.

However, if an employer doesn't want to employ someone because they don't like the fact that they're pretending to be something they're not and expecting others to join in the pretence, arguably this is reasonable (the person could be controlling and difficult to work with, struggle with understanding reality, make unfair demands on colleagues, clients etc, upset others by appropriating their lived experience etc). I would say this is reasonable in all cases of claiming a false identity - such as making false claims about your ethnicity, disability, age, qualifications, etc. My argument is that it's perfectly reasonable for this to apply to sex too, especially as it applies to things that are MORE spectrum-based/fluid/changeable than sex is.

So if an employer discriminated against a trans-identifying person, in one sense they are not discriminating against them on the basis of gender reassignment, but on the basis of claiming a provably false identity. In this sense they are actually treating the person the same as they would treat anyone claiming a falsehood, so arguable NOT discriminating, In fact it's discriminating in people's favour on the basis of gender reassignment, to protect them on the basis of claiming a false identity, but not anyone else who does that.

IANAL but I would like to see this discussed by lawyers to see if it is actually arguable.

It's not a very subtle distinction if you propose to enable employers to discriminate in the recruitment processes.

This is at least as bad as trans activism.

There is certainly an argument to be had that gender reassignment never ought to have been added to the list of protected characteristics. It simply doesn't have any kind of analogy to sex, age, race and other immutable characteristics. I think it could have been covered under "belief" and thereby be treated equally with other beliefs.

I know what I'm saying is controversial but I'm not the only person who thinks this.

Gender reassignment, disability and Pregnancy are the only three asymmetrical protected characteristics (ie you get extra protection if you have it compared to if you don't, unlike Race for example where all races ought to be treated with equality).

I think most people would agree with me that those things, Disability, Pregnancy and Gender Reassignment, are not even remotely similar in their level of need and vulnerability.

Edit to add - disability is the third asymmetrical one, I forgot it initially. But it even more backs up my point.

This is extraordinary intolerance that I don't want to see applied in my country.

If it was to be included under beliefs, what would the belief be?

What I mean to say, clumsily, is this:

If you have two people accessing a service, and one is disabled and the other isn't, it's pretty clear it's justified to give the disabled person some extra help or support etc as required. There are lots of easily imaginable situations where that might be required.

Ditto a pregnant woman alongside a person who isn't pregnant: there are lots of situations I can easily imagine where asymmetrical support is easily justified.

But a "gender-reassigned" person alongside someone who isn't - under what circumstances does it make sense for the former to have asymmetrical support, rather than simply be treated equally? Niche circumstances certainly, I'm struggling to imagine one. So it's very strange, in my opinion, that it's one of the three asymmetrical characteristics.

Why? Why should people be protected from being discriminated against as a prospective employee for claiming a false sex identity, when it is OK to discriminate against people for claiming a false ethnicity, age, disability etc?

(In terms of the law, I understand there is protection currently, but I mean in moral terms why is it OK? It makes no sense.)

Hiring people involves discrimination You are selecting and excluding candidates on the basis of things like their skills, intelligence and personality. If someone makes a false claim and demands others believe it (or pretend to) that's definitely a basis for thinking they might be difficult to work with or piss off colleagues or clients. It is weird that "gender identity" being a protected characteristic acts against this and therefore there is clear discrimination against other people who want to pretend to be something they're not and expect to be taken seriously.

And we see the results of this in situations like Sandie Peggie's. You end up with people who demand compliance with their false identity being proritised and people who are naturally uncomfortable with being expected to indulge a false identity being punished.

As I think JKR has said, everyone knows what sex they are (at least by adulthood). Humans in general feel awkward, uncomfortable and/or annoyed by fakery and phoniness, that's a natural and adaptive human instinct.

The belief that gender exists objectively and measurably, and can be reassigned, for a start.

ie you get extra protection if you have it

I dont agree. Although it's never been tested in court (as far as I know) the wording of the acct is that you can't discriminate against anyone for not holding GR. To do so would still be "because of" a PC.

Disablility is special-cased: it's explicitly permitted to discriminate against someone who is not disabled - see section 13 para 3. That explicit permission isn't in the act for GR.

There are a range of cases where it is permitted to discriminate against a woman who is pregnant - for safety and health reasons, for example.

Finally marriage is very non-symmetric. In employment you can't discriminate against someone who is married, but you can discriminate against someone for being single.

So would you be OK with intolerance of someone white claiming to be black, someone able-bodied pretending to have cerebral palsy and doing an impression of it, someone aged 45 pretending to be 6, someone demanding everyone agree that they're a cat? I think most people would say it's reasonable to find these things annoying, insensitive, indicative of a problem, perhaps offputting to an employer (especially if the person is going to havem fdor example, black or disabled colleagues whose identity they are claiming).

And I think if an employer did discriminate and say "I'm sorry but claiming to be black when you're not is offensive and will upset me/my employees so no they're off the list", that would be seen as reasonable and they wouldn't get into trouble.

So why is it "extraordinary intolerance" to feel the same when it's sex?

NB again, I'm not saying trans-identifying people shouldn't have jobs at all. I'm saying it's reasonable to find claiming a false identity (especially an identity you actually do have) offputting, insulting, annoying or whatever and that should be OK.

Just on the last point I don't think that's correct. For example if a business said they only hire married couples but not cohabiting couples, I think you'd have a case against that.

Pregnancy is definitely an asymmetrical one alongside disability. There are employment protections that are unique to pregnant women beyond simply equality.

I know a lot about them because of an incident with an employer.

It’s not necessarily about extra help or support, but about not being treated worse because you have transitioned. A person who is not trans will never be fired, harassed, or denied a service because they transitioned. A person who has undergone gender reassignment faces that risk if gender reassignment is not a protected characteristic.

Gender reassignment does give the right to time off for medical reasons. A non-trans person doesn’t need ‘equal’ time off.

you can discriminate against someone for being single.

Wow. Is there case law or guidance illustrating when someone might do that?

Never mind, I found some. https://www.cipd.org/uk/knowledge/employment-law/marriage-and-civil-partnership-discrimination/

Did legislators just assume that no one ever would discriminate against the unwed?

Employers discriminate in recruitment processes all the time. It's how you select the best candidate, by discrimination.

Unlawful discrimination would be to select the best candidate on the basis of a protected characteristic. That would be bad.

Believing you are a different sex is not a protected characteristic. The PC of GR is all about undergoing or planning to undergo a process. There are a lot of people who believe they are a different sex who have undergone no process and are not proposing to.

Then we come on to non-binary people who believe all sortts of, um, unorthodox things about what sex they are or aren't. They are not protected for their believe in their sex under the EA2010.

It is a subtle distinction - and it's important.

I don't think someone undergoing medical gender reassignment procedures is any more entitled to time off work than any other medical procedure like treating a tooth abcess or something (in my opinion of how the law should be).

And yet sickness isn't a protected characteristic. You can eventually be fired if you have too much sick leave, unless it is due to pregnancy.

So again, why the asymmetrical protection for gender reassignment? Why prioritise that over any other medical needs except disability or pregnancy?

And how would you suggest employers make this distinction? Especially given employers are not allowed to subject trans employees to any additional scrutiny or questions which they wouldn't ask everyone, as that in itself could be seen as discriminatory.

You don't need case law - it's written explicitly into the Act at paragraph 13(4).

I don't have any suggestions. Personally I don't think it's relevant to someone's employment as to what sex they think they are. But as far as I can see the PC of GR doesn't apply to someone's belief about their sex. If someone else doesn't want to employ a person because they believe they've changed sex, that doesn't apear to be unlawful.

Well we're in a daft situation because we have enshrined pretending to be something you're not in law and made it a protected characteristic when that makes no sense (and the definition of "gender reassignment" is also confusing and not useful, making it even more complex).

IMO that's a mistake and needs to be fixed. It makes the law risible and in itself discriminatory (against people who want to pretend to be something they're not in other ways and have that taken seriously).

As things are, it is very difficult for employers.

Well we're in a daft situation because we have enshrined pretending to be something you're not in law

I think this is Stonewall law, i.e. the way some people wish the law to be and not how it actually is written.

We have protected people who propose to undergo a process, are undergoing a process or have undergone a process (etc.) for being detrimentaly treated becuase of it. Nothing more and nothing less. No process - no protection.

The protections you think need to be re-written seem to arise from case law and over-interpretation in courts.

“I don't think someone undergoing medical gender reassignment procedures is any more entitled to time off work than any other medical procedure like treating a tooth abcess or something”
It’s not about people with the protected characteristic of gender reassignment being given time off over someone with a tooth abscess. But about preventing an employer from saying you can take time off for a tooth abscess but not gender reassignment.

“And yet sickness isn't a protected characteristic. You can eventually be fired if you have too much sick leave, unless it is due to pregnancy.”
Disability is a protected characteristic though and would mean an employer has to make reasonable adjustments if someone’s disability is causing them to take sick leave. If it’s not possible to make an adjustment the person could be dismissed on capability grounds.

“So again, why the asymmetrical protection for gender reassignment? Why prioritise that over any other medical needs except disability or pregnancy?”
I wouldn’t say it’s about prioritising someone with gender reassignment taking time off over someone with a different medical issue, but ensuring someone can take time off for gender reassignment reasons when they’d be able to take time off for other medical reasons. Most employers allow you to take time off for medical reasons, but it’s not hard to imagine an employer at one time saying no to taking time off for gender reassignment.

Kind of - one problem is that anyone who is trans-IDing can say they are "proposing to undergo gender reassignment" and that can't be disproved.

There is also an issue of the actual law being misrepresented by Stonewall et al and lots of institutions being deeply confused about what trans-IDing people have a right to under the law. But as it stands a trans-IDing person could claim discrimination on the grounds of gender reassignment even if there is no process - by saying they propose to undergo the process.

Not read it all. But there is a problem with ALL men who are "really nice, harmless, just dressed up as a woman":

A Scottish shopkeeper did that, for years, before kidnapping and imprisoning a little girl customer, who had become accustomed to seeing her mother and other women ignoring the fancy dress. She (and mother) were 'groomed' by the familiarity into thinking men are as harmless as women, provided they are wearing dresses:

There's a reason it is illegal to dress up as a police officer, in public. Maybe, no harm is intended or planned. Maybe, it is just someone innocently travelling to a fancy dress party, or to appear in a stage play. But maybe it is not. And maybe any member of the public will be induced to trust the costume.

NAMALT, therefore ALL men must be alllowed in women's spaces, is of course seen as wrong reasoning. But NAMALT, therefore ALL men must be indulged when pretending to be women, is equally wrong reasoning.

We need to be able to tell a child to look for a lady, if they are lost. We need to look for a female, quickly discernable by appearance, if we ourselves are in trouble. All cultures at all times have differences between the clothing, hairstyle, face-paint, and so on, to enhance the ability of everyone to instantly identify the females from the males, at a glance and at a distance, for good reasons.