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Memorandum submitted by Kate Phizackerley (E 32)
Equality Bill - Gender Reassignment & Disability
1. Summary
1.1. Trans groups are rightly highlighting problems in the current draft bill, but are proposing some difficult and time-consuming changes to the definition of gender reassignment. Many of these concerns - particularly those likely to be acceptable to the Government - are already addressed within the draft bill but in an area which trans organisations have been overlooking.
1.2. This submission suggests how the Committee
could save time by relying on existing wording with minimal changes. 1.3. The proposal also ensures that intersex
individuals are covered by the law - at present the needs of these individuals
are generally overlooked. 1.4. An additional possible conflict with disability case law is also mentioned
2. Submission 2.1. There remain difficulties arising from the
definition of gender reassignment such as in which hospital ward somebody who
has just started gender reassignment should get a bed. If a male to female transsexual person has developed breasts but has not yet had
genital surgery, has not got a GRC and is living part of their life as a man,
and part as a woman, should they be placed in a male ward or a female ward? 2.2. Attempting to legislate for every possible
circumstance is impossible, especially given the huge variations in the
approach taken to gender reassignment by different individuals. 2.3. What is often overlooked is that those undergoing gender reassignment also qualify for protection under the provisions relating to disability, on two grounds: 2.3.1. "Disfigurement" - transphobia arise from the difficulties some individuals have of "passing" convincingly in their acquired gender, especially early in the transition process. 2.3.2. Underlying
gender reassignment is the diagnosis of a recognised mental disorder - gender
dysphoria, "GD" (sometimes knows as gender identity disorder, "GID"). It tends to have a significant impact on
sufferers ability to concentrate (because of the pain) and to form and maintain
social relationships. 2.4. The Equal Opportunities Commission has
recognised that GD is likely to qualify as a disability within the definitions
used with the Disability and Discrimination Act. It is also clear that those suffering from GD
and/or undergoing gender reassignment face considerable difficulties in
everyday life, often finding something as simple as going swimming or to the
gym impossible because they cannot hide the changes to their body. 2.5. There are therefore existing protections
within the disability provisions of the Equality Bill. Recognising them
therefore is neither controversial nor grants additional protections. However, they are easily overlooked and any
transsexual person wanting to rely on them is likely to have to spend a lot of
time justifying that they apply since the perception is that the only
protections relevant to transsexual people are under the "gender reassignment"
provision of the Equality Bill, or the Sex Discrimination Act at present. 2.6. It is therefore suggested that Schedule 1,
Part 1 section 6(1) be amended to read:
2.7. The proposed additions meet the difficulties of issues like that of hospital beds by throwing the situation back on the "reasonable adjustments" provisions in the disability stream, allowing on-the-ground pragmatic reaction to detailed circumstances. For the avoidance of doubt, the suggestions in this submission do not address concerns relating to conflicts with the Gender Recognition Act, for instance in terms of the provision of Single Sex Facilities for those with a Gender Recognition Certificate. It is suggested that a general override be added to the Equality Bill as follows:
2.8. It is not claimed that the suggestions in this
submission meets all difficulties highlighted by trans lobbyists, although it
may help to Committee to address several of them with the minimum investment of
time. For instance, this submission
does not extend protections to transvestites and the Committee may wish to make
additional changes to extend protection to transgendered individuals other than
those who are transsexual. 3. Additional minor point re
disability 3.1. The example in section 715 of the Explanatory
Notes potentially conflicts with case law.
It offers an example of a housing association offering a temporary lease
as a reasonable adjustment to determine whether a tenant with mental health
should be offered a long term lease. 3.2. In UKEAT/0060/07/DM (Environment Agency v Rowan) the EAT declared that "we have considerable difficulty in seeing how an investigation or trial period as such can be regarded as a reasonable adjustment", although the issue was not directly before the tribunal and no precedent was set and the Committee may anyway decide that the circumstances are materially different.
June 2009 |