Memorandum submitted by Press for Change (E 11)

Prepared on behalf of transgender and transsexual people in the United Kingdom

submission regarding the draft Equality Bill

 

PRESS FOR CHANGE ~ MAY 2003

 

Contents

A. Basis for this Submission: 2

1. About Press for Change 2

B. Summary of this Submission 3

2. Press for Change welcome for the Bill 3

3. Press for Change's main concerns with the Bill 3

C. The Draft Equality Bill - An Analysis of how it will affect Trans People, including Recommendations for Change. 4

4. The problem of the use of 'Gender reassignment' as the characteristic determining protection 4

5. The Inappropriate use of the phrase Gender reassignment to provide protection to children and adolescents 5

6. The Bill's apparent allowing of Schools to Harass Children and Adolescents because they possess the Characteristic of 'Gender Reassignment' 6

7. The misuse of an exemption to the Legislation's Protection because of the characteristic of Gender Reassignment in the provision of a Single Sex Services 6

8. The illogical potential exemption from protection pursuant to Public Functions 8

9. The unlawful inclusion of a Genuine Occupational Qualification that a Person not be a Transsexual Person 8

 


 

A. Basis for this Submission:

1. About Press for Change

A.1 Press for Change (PFC) is the largest representative organisation for trans people in the UK. Formed in 1992 to "seek respect and equality for all trans people in the UK, through case law, legislation, and social change". It reaches around 2,500 transgender and transsexual people in the UK

A.2 PFC provides legal advice, training and research to trans people, their representatives, and public and private bodies. PFC has regularly worked with Government on the Employment regulations 1999, the Working Group 2000, and the Gender Recognition Act 2004..

.

B.
Summary of this Submission

2. Press for Change welcome for the Bill

B.1 Press for Change welcomes the draft Bill . The key positive feature of the Bill is that it acknowledges that not all trans people wish to undergo medical reassignment, and that it includes protection for all of these people who live permanently in the preferred gender role; those people who are perceived as transsexual; and those people who are victimized because they have stood up and been counted in their support for a trans person.

3. Press for Change's main concerns with the Bill

1. The problem of the use of 'Gender reassignment' as the characteristic determining protection,

2. The inappropriateness of the phrase gender reassignment to provide protection to children and adolescents,

3. The bill's apparent allowing of school bodies to harass children and adolescents because they possess the characteristic of 'Gender Reassignment' (or sexual orientation or religion or belief).

4. The misuse of an exemption to the Legislation's Protection because of the characteristic of Gender Reassignment in the provision of a Single Sex Services

5. The illogical potential exemption from protection pursuant to Public Functions

6. The unlawful inclusion of a Genuine Occupational Qualification that a Person not be a Transsexual Person

C.
The Draft Equality Bill - An Analysis of how it will affect Trans People, including Recommendations for Change.

 

4. The problem of the use of 'Gender reassignment' as the characteristic determining protection

C.1 In the bill the use of the term gender reassignment as the protected characteristic refers to a transsexual person;

C.2 The following examples of people who are transsexual are given in explanatory note 57:

(a) A person who was born physically male decides to spend the rest of his life living as a woman. ... After discussion with her doctor and a Gender Identity Clinic, she starts hormone treatment and after several years she goes through gender reassignment surgery....

(b) A(n) ... person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully 'passes' as a man without the need for any medical intervention.

But, the second person in the explanatory note is not a transsexual person (in that the ordinary definition of transsexual, includes the desire to undergo medical treatments to more closely align their body with that of the opposite sex) as they are not intending to undergo ... gender reassignment. They are transgender.

C.3 Whilst PFC welcomes the Bill's extension of protection, we submit that this inappropriate use of terminology might cause confusion within the legal system. Tribunals and courts will be required to decide who has or has not the characteristic of gender reassignment and could become bound up in the illogicality of the characteristic as used in the bill. Therefore, the Bill must be clarified on the face of it, so as to ensure the intention is clear.

Press for Change recommends that Section 7 of the Bill be changed to:

Gender Reassignment

(1) A person has the protected characteristic of gender reassignment if the person is

(a) 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.

(b) Intend to live or is living permanently in their preferred gender role which is opposite to that of their natal sex

(2) A reference to a transsexual or transgender 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 transgender or transsexual person;

(b) a reference to persons who share a protected characteristic is a reference to transgender or transsexual persons.

5. The Inappropriate use of the phrase Gender reassignment to provide protection to children and adolescents

C.4 Whilst we are very pleased with the progress in the bill towards recognizing the need for protection of young people who express or present their gender differently in school, Press for Change is extremely concerned with the use of the term 'gender reassignment' as the protecting characteristic in relation to young people. Vol 1 pt.6, Chapter 1, s.79 onwards.

C.5 Children and adolescents who present with gender variant (GV) behaviour are in real need of protection. PFC's Research for the Equalities Review showed that 64% of young trans men (generally referred to a tomboys) and 44% of young trans women (generally referred to as sissy boys) experienced bullying and abuse at school because of the gender expression or presentation.[1] Bullying is not just from other children, but also from teachers, ancillary staff and senior staff.

C.6 But not all children or young people could make this difficult decision, which would require at least Gillick competence (which many do not have). Research has also shown that around 80% of those boys who are 'sissy boys' will go on to become gay men, rather than trans women.[2] The literature indicates it is impossible to determine which sissy boys will grow up to be transsexual women, and which, homosexual men.

C.7 The use of the term 'gender reassignment' could mean that these young people declare themselves are desiring gender reassignment, so as to allow them to express or present themselves in a gendered way they find helpful.

C.8 Most children under the ages of 12-12 will not have heard of the possibility of gender reassignment or transsexualism. Older adolescents may have but rarely fully understand it. If pushed to saying they want gender reassignment they may well not be aware of the implications for their lives. PFC feels that adolescents and young people may be influenced into making a very poorly informed decision about their choices in life.

Press for Change recommends that in Vol 1 pt.6, Chapter 1, Section 79 should read

 

(79) Application of this Chapter

This Chapter does not apply to the following protected characteristics-

....

This chapter does apply to the following protected characteristic

(d) Gender Variance in children under the age of 18

 

With Gender Variance described in the explanatory notes as:

Persistent cross-gendered behavior, presentation or expression which is not regarded as normal for a young person of their natal sex.

6. The Bill's apparent allowing of Schools to Harass Children and Adolescents because they possess the Characteristic of 'Gender Reassignment'

C.9 PFC is concerned with the apparent permission in Vol 1 pt.6, Chapter 1, Section 80, ss.10 for responsible body of a school to lawfully harass young people because they possess the characteristic of 'Gender Reassignment' (or sexual orientation or religion or belief).

C.10 This seems particularly contrary in light of the provision is Vol 1 Pt. 2 Equality: key concepts, Chapter 2 Prohibited conduct, Section. 24 Harassment, where harassment is defined as behaviour where :

S. 24 ss. (2) The purpose or effect is-

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

C.11 Press for Change cannot imagine the Bill drafters intended to allow children and adolescents to be lawfully subjected to behaviour that would violate their dignity, or offensive environment, but explanatory note 283 seems to confirm this intention.

C.12 Press for Change fails to see any reason for allowing school bodies to lawfully harass a young person.

Press for Change recommends that Vol 1 pt.6, Chapter 1, Section 80, ss.10 is struck from the face of the Bill.

7. The misuse of an exemption to the Legislation's Protection because of the characteristic of Gender Reassignment in the provision of a Single Sex Services

C.13 Press for Change is extremely concerned by elements of the exemption to the protection to trans people in the use of 'Single sex Service' contained in S. 24 and S. 25 (1) of Vol II, Sch. 3 Part 6. Gender reassignment: Single Sex Services .

C.14 Press for Change considers this exemption to be too far reaching in its aim, with trans people being particular vulnerable to a business model, as exemplified in explanatory note 694. The which provides the following example:

694. A clothes shop manager prevents a male to female transsexual person from using the women's communal changing rooms. This would be lawful as long as the manager has made a balance between the rights of the transsexual user and those of other users, taking account of all the circumstances, including the wishes of the transsexual user, the likely impact on other users and the availability of other facilities.

C.15 The use of the business model,(as it has done in cases of disability where reasonable adjustments have been refused ) will almost always trump a trans persons right not to be discriminated against in the provision of single sex facilities. Most service providers will follow the explanatory notes and claim that taking into account all circumstances, including the likely impact on other users their businesses would be damaged by trans people because other users would object and refuse to use the business. It would be very hard for trans people to refute this.

C.16 More importantly, this fails to recognise the new legal gender of those who have obtained a Gender Recognition Certificate (GRC). The legislation presumes a person always has the characteristic of 'gender reassignment' even after they have a GRC. We recognise the importance of continuing to provide protection after a GRC as discrimination may still occur because they a person has undergone gender reassignment. But the Bill as written ignores the GRC, allowing businesses/ services to ignore the new legal status and continue to discriminate against them because they are trans.

C.17 PFC feels it is completely wrong for the Equality law to allow a service provider to lawfully discriminate against any person who is living permanently in their preferred gender, including those who have a GRC. As has been evidenced over the last few years by the lack of case law the majority of businesses have adapted well to the use of their services by trans people.

C.18 The European Court of Justice held in Bilka-Kaufhaus GmbH v Weber von Hartz (1987) ICR 110 ; that for any such justification I n anti-discrimination law "the objective of the (providers) measure must correspond to a real need." Discrimination on the grounds of a business model, as proposed, could never be a real need because it would perpetuate the discrimination which the bill sought to end..

C.19 PFC believes that the provisions contained in ss.24 and 25 contravene the Human Rights of Trans People ( as guaranteed by Arts. 8 & 14 of the convention) following the decisions of the European Court of Human Rights, in the cases of Goodwin, and I v UK government [2002]. Such rights are further guaranteed under the Human Rights Act 1989.

C.20 Press for Change believes that these sections are should be re-written.

Press for Change recommends that Vol II, Sch. 3 Part 6. Gender reassignment: Single Sex Services is redrafted as follows:

S. 25 (1) A person does not contravene section 27, so far as relating to discrimination because a person is intending to undergo gender reassignment , 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.

 

PFC recommends that the explanatory notes 693 and 694 are redrafted to read:

693. Paragraph 25 contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services for those people not yet living permanently in their preferred gender role. Such treatment by a provider has to be objectively justified.

Example

A clothes shop manager prevents a male to female transsexual person who has not yet commenced living permanently in her preferred gender role from using the women's communal changing rooms. This would be lawful as long as the manager has made a balance between the rights of the transsexual user and those of other users, taking account of all the circumstances, including the wishes of the transsexual user, the likely impact on other users and the availability of other facilities.

8. The illogical potential exemption from protection pursuant to Public Functions

C.21 Press for change is concerned with an inherent illogicality contained in the bill In S. 27 (6) of Vol I, Part 3 - Services and public functions and . 31(1)(b) of Vol II, PART 8: SUPPLEMENTARY Power to amend, which could have an impact on the position of trans people (and those who pregnant , or have the characteristics of race or sex)

C.22 S. 27 (6) of Vol I, Part 3 - Services and public functions provides that

A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.

However we note that in S. 31(1)(b) of Vol II, PART 8: SUPPLEMENTARY Power to amend

A Minister of the Crown may by order amend this Schedule- ...

(b) so as to add, vary or omit an exception to section 27(6), so far as relating to gender reassignment, pregnancy and maternity, race or sex.

C.23 Thus in his public function role, a Minister of the Crown could do something which is discriminatory to people sharing these characteristics. We fail to see any relevant of the groups having the characteristics.

Press for Change recommends here other than to refer the matter back to the drafters, though we deplore the opportunity provided for a Minister to amend S. 27 (6) of Vol I, Part 3 - Services and public functions in a way which reduces the protection for people with what is an apparently arbitrary set of characteristics; gender reassignment, pregnancy and maternity, race and sex.

9. The unlawful inclusion of a Genuine Occupational Qualification that a Person not be a Transsexual Person

C.24 Vol. II ,SCHEDULE 9 WORK: EXCEPTIONS, pt. 1 General : OCCUPATIONAL REQUIREMENTS, ss. 1 - 3 allow for a potential employer, partnership, personal Offices or appointments to require that a person is not a transsexual person so long as this is a 'proportionate means of achieving a legitimate aim.'

C.25 PFC cannot see why trans person living permanently in their preferred gender role cannot fill any of the positions as contained in this section of the Bill.

C.26 The ECJ found in P v S and Cornwall County Council [1996] IRLR 347 and KB v National Health Service Pensions Agency and Secretary of State for Health (Case C-117/01) [2004] IRLR 240 , and as strongly supported in the case of A (Respondent) v Chief Constable of West Yorkshire Police (Appellant) 2004 U. K, HL. 21, E.W.C.A. Civ 1584, discrimination protection is afforded to trans people in employment from the day they commence permanently attending work in their preferred gender role.

C.27 In the decision of the House of Lords in the case of A (Respondent) v Chief Constable of West Yorkshire Police (Appellant), Baroness Hale held that following the decision of the ECJ in the case of KB v NHS Pensions Agency it is clear that "for the purposes of discrimination (Equal Treatment Directive 1976/2007/EEC) , a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned". This was later confirmed by the ECJ in the case of Sarah Margaret Richards v Secretary of State Pensions (Case C-423/04) [2006] ECJ, ECR 1-000 and the ECHR in the case of Grant v. United Kingdom [2007] 44 EHRR 1

C.28 The House of Lords decision was made regardless of the later provisions of the Gender Recognition Act and was not overturned by the Act.

C.29 It is clear that IN EU, EC, and UK law that from the day a trans person commences permanently working in their preferred gender role, in employment law they are regarded as a person of the natal sex normally associated with that gender role. There is no capability to make a provision in any of these jurisdictions that allow discrimination in employment law because a person is transsexual. They are no longer transsexual but simply men and women.

C.30 Whilst jobs which are to be associated with only men or women, on the basis of a 'proportionate means of achieving a legitimate aim' may exclude a trans person, the reason could only be because they are (in the case of a job for woman) the man or (in the case of a job for a man) the woman they live and work as.

C.31 The proposals contained in the Bill would effectively overturn these decision of the ECJ, ECHR and the House of Lords As such Press for Change suggest that this is rectified at this early stage of the Bill's progress before the matters concerned are referred back to the courts, and are overturned after the Bill has gained Royal assent.

Press for Change recommends that s. 3 of Vol. II, SCHEDULE 9 WORK: EXCEPTIONS, pt. 1 General : OCCUPATIONAL REQUIREMENTS, is rewritten as follows:

(3) The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read as -

(a) not including the characteristic of gender reassignment

June 2009



[1] Whittle, S., Turner, L. 2007 Engendered Penalties: Transgender and Transsexual People's Experiences of Inequality and Discrimination, London: Cabinet Office

[2] Green, R (1987) The Sissy Boy Syndrome" and the Development of Homosexuality, New Haven, CT: Yale University Press.