Nadia Whittome calls for a change to the Equality Act...

[iwishitwouldstartraining]

But can anyone work out what she actually wants?

https://archive.ph/MxOPp#selection-4201.0-4201.14

Except I assume that in cases of indirect discrimination their actual circumstances would count.

Discrimination on the grounds of perception. If I think you are “trans”, even if you aren’t covered by the pc of gender reassignment, if i discriminate against you on that basis that is covered by the law.

um I think you’ll find they don’t have to.

There's no requirement to be taking hormones or have surgery to get a gender recognition certificate or be covered by the PC of gender reassignment

So we wouldn't need to change the EA to cover "gender non-conforming" as a protected characteristic, because the law covers this already?

To an extent, but only if someone thinks the person has the protected characteristic of GR

It would also apply if they were a passing TIM who was discriminated against because it was believed he was female.

I hear you're a misogynist homophobe now Nadia.

A recent first tier tribunal found that somebody who is non binary is not covered by the PC of gender reassignment.

https://www.personneltoday.com/hr/non-binary-trans-protections-gender-reassignment-lockwood-v-cheshire-and-wirral-nhs-foundation-trust/

I put this on another thread as part of discussing a particular issue, and @BridgetYourFortyDaysAreUp asked me to post my thoughts on this thread:

Legislation should clarify and renact the Equality Act and the Gender Recognition Act together to set out formally that:

• sex and gender are different things everyone has a sex and it is fixed at the moment of conception and remains the same throughout life. Disorders of Sexual Development do not create additional sexes or exist in a limbo between sexes, each DSD is a category within male or female.
• not everyone has a gender and gender may be fluid, no one has to conform to the gender expectations associated with their sex.
• a new protected characteristic of gender nonconformity should be created such that no one is discriminated against if their gender presentation is unconventional. This PC should apply equally to anyone who is gender non-conforming, some of whom may consider themselves trans and some will not. (noting that gender nonconforming butch lesbians get a lot more discrimination than gender conforming fem lesbians and they are being discriminated against for their gender nonconformity not their gender identity or their sexuality)
• People can obtain a gender recognition certificate, but that is simply recognising their gender and does not change their sex.
• People can undergo surgical or hormonal changes to their body but that also does not change their sex.
• People who have obtained a gender recognition certificate, people who have (or are intending to) undergo surgical or hormonal changes to their body to change sexual characteristics, and people whose gender presentation is very different from expectations for their sex, are all fully entitled to 100% human rights, dignity and respect.
• The fundamental principle of equality should be that other than for the legitimate exceptions all facilities and opportunities everywhere are open equally to everyone irrespective of any of the listed items of protected characteristics. Where it would be a proportionate means of achieving a legitimate aim to reserve some kind of facility or opportunity to people with a specific characteristic, then that is allowed but the exclusion must be applied without exceptions otherwise the rational basis of it being a proportionate means of achieving a legitimate aim is negated.
• If the rational basis for creating something that is separate for women is constructed due to differences between male and female bodies then it cannot be the case that some male people are included - but if it is appropriate to include male people then the appropriate action is to revisit whether there is actually a need for the exclusion at all, and redefine the facility/opportunity as open to all
• Discrimination means treating someone at a disadvantage compared with how they would have been treated if they didn't have a particular characteristic. A male person with a protected characteristic of gender non-conformity (presenting according to female norms) must not be treated with any disadvantage compared to a male person without the protected characteristic of gender non-conformity - they are not being discriminated against if they are not treated as female because they are not female - that does not stop them from being treated with the utmost respect which is their absolute right.

Not in my original post but as clarifications in further discussion:

• separating out gender nonconformity from the transexual pathway in law and in culture is a vital part of protecting children. Children can certainly have the PC of gender non-conformity and should be liberated and proud to be so without any expectation or encouragement that this should be linked to physical or surgical treatment, so cannot have the PC of reassignment.
• At the time the GRA was enacted, people who had undergone reassignment treatment had a lot of sympathy that they could appear, to external observers, that they were in a heterosexual relationship, but they were forbidden from getting married as technically they were a same sex couple, and this was reasonably portrayed as a denial of human rights to family life. Now that anyone of either sex can marry anyone of either sex there is minimal need for the GRC except for personal satisfaction - obviously some people will continue to want one and there's no harm in the status continuing to be available
• the redrafted legislation should place an onus on any public or private body that has legitimate need to hold information on whether people are male or female to record and hold information on sex and gender separately as two different data points and not conflate them or assume the value of one on the basis of the other.

No so young any more. She turned 30 at the end of last month. By the age of 30 I'd been married for 8 years and had 2 children in primary school.

The problem for MPs is that to obtain a GRC or to be protected under GR does not necessitate any change in an individual. Its not just that it doesnt change an individuals sex, they may not appear any different to their sex.

We still need sex as a PC, and single sex spaces and opportunities.

Transpeople want to be treated as if they are their target sex. TW want to be grouped with women where womens groups exist.

But this means that the women's groups arent fit for purpose. They are justified and designed because of sex, nothing else.

I think what MPs propose is to introduce a PC of gender identity in addition to sex and GR, and try to impose it onto people. Some spaces will segregated by sex, others by gender identity.

It wont work because theres nothing to separate different gender identities.

But “gender identity” is an unverifiable aspect of someone’s inner psychology. How is it defined in law? This is why the EA homes in on something more concrete such as the visible process of physical transition.

If you want to”gender identity” protected it’s probably more akin to a belief or religion. E.g. to believe you are really the opposite sex when you aren’t is tricky to legislate for except as a belief.

Exactly this. Gender identity is a nebulous concept. Most of us don’t identify as any “gender”.

It is a concept that is born from
the trans persons belief in some sort of opposite sex inner soul, but has been force-retrofitted onto everyone with the insistence that we all have a “gender identity” that matches our ”sex” making us “cis” even if we say we have never experienced this gendered inner sense. It is all very simplistic. And ignores all the 101 other “genders” that were all the rage.

It is a framing device to express what some trans people feel. They believe they are really the other sex. Well, some do.

I have no idea how it is supposed to fit into legislation if it can’t be defined.

For a space to be segregated by gender identity you would first need to define what legitimate aim is being reached for which such segregation is a proportionate means if achieving it.

The simple desire to have a segregated space is not a legitimate aim.

Female-only facilities and opportunities have been created due to robust evidence of the disadvantages that female people are subject to compared to male people, on the basus of biological sex, and robust evidence that female-only facilities and opportunities help to mitigate those disadvantages.

Collecting similarly robust evidence for specific disadvantages suffered by people with a feminine gender identity as opposed to people with a masculine gender identity would have to use disagregated data which collected biological sex and gender identity as two different data points and which used statistical correction methods to separate effects that are due to biological sex from effects that are due to gender identity. And facilities separated by gender identity would have to have more than 2 options because there are a lot of people who wouldn't want to claim either a masculine or feminine gender identity.

I can't even think of a legitimate aim that having a segregated space for people with a feminine gender identity would be a reasonable means to reach. Such a space would by necessity exclude all the female people who don't have a feminine gender identity which seems horribly regressive and right-wing to me.

to be protected under GR does not necessitate any change in an individual.

None of the protected characteristics require anything of anyone to be protected, because it's not individuals who receive protection; it's the characteristics themselves.

You, I, Jonathan/Holly Willoughby and Eddie/Suzy Izzard are all afforded exactly the same protection from discrimination on the grounds of Gender Reassignment as each other.

If anyone discriminates against me because they think I am or might be planning to undergo, or have undergone a process to change physiological or other characteristics of my sex, that would be unlawful. It's irrelevant as to whether I actually am planning, or actually have undergone any such process.

I agree.

But being perceived as a PC doesn't mean I get to be treated as if I am that PC. And thats what TRA want.

Part of the argument is that a trans identifying man will be perceived as a woman therefore should use womens SSE.

Thats different from a trans identifying man being discriminated against because he was perceived to be a woman.

What im saying is that if 'transition' was something more than a certificate or intention, the government may be able to cobble together laws on 'gendered' spaces.

But because it would be unethical to expect anyone to have surgery or take drugs, and we cannot see a person's motivation, 'gendered' spaces are not practical.

If anyone discriminates against me because they think I am or might be planning to undergo, or have undergone a process to change physiological or other characteristics of my sex, that would be unlawful. It's irrelevant as to whether I actually am planning, or actually have undergone any such process.

But if you claimed that your employer was indirectly discriminating against you because they had not provided enough unisex toilets, I think you would have to demonstrate that you had the PC of gender reassignment?

To be fair, how can it be demonstrated?

The PC of GR doesn't require a diagnosis or surgery. It doesnt need a name or pronoun change.

I suspect most people would announce their intent to their employers either as they change pronouns or before.

According to the tribunal linked above, not by claiming to be non-binary!

Changing your name and asking for people to use opposite sex pronouns?

But in a large organisation the people responsible for building management might have no clue who I was.

I think that it would be a societal good to prevent the disproportionate enforcement of arbitrary gender norms, but that creating a protected characteristic of gender non-conformity is not the way to do it.

According to Smith v Safeway, an employer can have different requirements for men and women, as long as overall, the dress code applies a conventional standard of appearance. This means that it was not sex discrimination to require a man to have no longer than collar-length hair, when the condition did not apply to women.

Legal commentators think this case might be decided differently now, and the government guidance could be rewritten to acknowledge both this fact and the existence of transgender people who legally retain their birth sex for equality law purposes, following FWS.

So, it would be direct sex discrimination to have different dress codes for the two sexes, unless it is as a proportionate means of achieving a legitimate aim. (An aim based on physiology might be legitimate, but one based on what is conventional for each sex would not be.)

(Following Smith (obiter), it would still be indirect sex discrimination to impose on both sexes a dress code which is conventionally highly associated only with one sex, because it exposes members of the other sex to a greater risk of disapproval or ridicule. So one could have 'male and female' dress codes, as long as each employee is free to choose either.)

Well so are ethnicity and religious/philosophical beliefs and those are protected characteristics too.

My main issue is the way the EA is currently written for gender reassignment it says a person can reassign their sex:
”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.”

The EA is using gender and sex interchangeably. This whole section should be rewritten to cover gender identity and strike out all references to sex and transsexual. It needs to be clear that no one can get their birth sex changed (reassigned)

But if you claimed that your employer was indirectly discriminating against you because they had not provided enough unisex toilets, I think you would have to demonstrate that you had the PC of gender reassignment?

Indirect discrimination claims are based on a group effect, so to have locus standi a claimant only needs to demonstrate being a member of the group. A witness statement by them would suffice.

The law in Australia is anti-women. I am not sure the legislators did not realise that.
Oh, its you 'alcove'. I don't know why I bothered saying anything.