Memorandum submitted by TransLondon (E 40)

Equality Bill

SUMMARY

1. TransLondon[1] welcomes the publication of the UK Government's Equality Bill (as published on 27 April 2009). However, it is our considered view that the Equality Bill in its current form is regressive in that it diminishes the rights of gender-variant/transgender people, as they are provided in existing UK legislation (including The Gender Recognition Act, The Sex Discrimination Act and The Public Equality Duty). In particular, we consider that nearly all of the 'exceptions' in the Equality Bill effectively undermine the rights that are already possessed by gender-variant/transgender people and should be removed.

2. The current protected characteristic of 'gender reassignment' used in extant UK legislation, and in this Equality Bill, is simplistic, narrow, out-moded, inaccurate and unfairly predicated solely upon a medical model of transsexualism.

We propose a more inclusive, accurate and fair definition of gender-variant/transgender people based upon up-to-date information. In particular, we (a) amend the protected characteristic of 'gender reassignment' to 'gender (identity) variance'[2] and (b) amend the term for a person who has that protected characteristic from 'transsexual person' to 'trans person'[3].

3. The new protected characteristic of 'gender (identity) variance' is defined in detail in Clause 7 to ensure that it is fully inclusive of all gender variant identities, including young trans people who are not sufficiently protected by existing legislation. In particular, the definition now includes people who do not fit within the stereotypical 'binary' identities of male and female, for a variety of legitimate reasons.

4. In regards to absence from work for gender reassignment, and in relation to the provision of separate/single-sex services, the characteristic is further defined to ensure that those people living in their preferred gender role are not excluded unlawfully (under European law) from access to single sex services or occupations. This includes, but is not exclusive to, those with a Gender Recognition Certificate, because there are many legitimate reasons why a trans person might not possess, or intend to apply for, a GRC.

5. We are certain that protection against harassment needs to be extended to cover gender (identity) variance and sexual orientation and can point the Committee towards third-party reporting forums that possess case study evidence to support this.[4]

EQUALITY BILL (2009)

AMENDMENTS

Equality Bill, Vol. 1, Part 2 - Equality: Key concepts, Chapter 1 - Protected characteristics

Page 3, line 9, Clause 4. Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Clause 4 now reads:

4 The protected characteristics

The following characteristics are protected characteristics-

...

gender (identity) variance;

... ...

Pages 5-6, line 23. Leave out Clause 7 until the end of the clause and then insert:

'7 Gender (identity) variance

(1) A person who has the protected characteristic of gender (identity) variance is a reference to a person who is or is perceived to be any of the following:

(a) a person who is intending to undergo, is undergoing, or has undergone, gender reassignment / or

(b) a person who is living in a gender role different from that expected of a person of their recorded natal sex, /or

(c) a person who has, by virtue of the Gender Recognition Act 2004 (c.7), been awarded a Gender Recognition Certificate, /or

(d) a person who is intersex, or possessing ambiguous genitalia, or possessing primary and/or secondary sex characteristics of both male and female, /or

(e) a person who is androgynous, or whose gender identity and/or appearance includes elements of both male and female genders, /or

(f) a person who is not gendered, or neutered, or whose gender identity is neither male nor female, or who desires the removal of (some or all) primary and/or secondary sex characteristics, /or

(g) anyone who identifies as any of the following: trans, transgender, transvestite, transsexual, intersex, androgynous, genderqueer, transqueer, queer, agendered, bigendered, pangendered, eunuch, neuter, neutrois, /or

(h) any other person who has a gender identity that is different from that expected of a person of their recorded natal sex, including children and adolescents who express gender variant behaviour but who may not have an awareness of having a self identified trans identity

And

(i) who, permanently or not, wish to express some aspect or aspects, or all of their gender identify [as referred to in (a)-(h)] in a way which is not unlawful or offensive

(j) where offensive is used in its ordinary sense

(2) In relation to the protected characteristic of gender (identity) variance:

(a) a reference to a person who has a particular protected characteristic of gender (identity) variance is a reference to a person as defined in 7(1)(a)-(h);

(b) a reference to persons who share a protected characteristic is a reference to persons as defined in 7(1)(a)-(h)

(c) except in so far as a reference to a transsexual person is a reference to a person who has the protected characteristic and who is intending to undergo, is undergoing, or has undergone, gender reassignment.'

Clause 7 now reads:

7 Gender (identity) variance

(1) A person who has the protected characteristic of gender (identity) variance is a reference to a person who is or is perceived to be any of the following:

(a) a person who is intending to undergo, is undergoing, or has undergone, gender reassignment / or

(b) a person who is living in a gender role different from that expected of a person of their recorded natal sex, /or

(c) a person who has, by virtue of the Gender Recognition Act 2004 (c.7), been awarded a Gender Recognition Certificate, /or

(d) a person who is intersex, or possessing ambiguous genitalia, or possessing primary and/or secondary sex characteristics of both male and female, /or

(e) a person who is androgynous, or whose gender identity and/or appearance includes elements of both male and female genders, /or

(f) a person who is not gendered, or neutered, or whose gender identity is neither male nor female, or who desires the removal of (some or all) primary and/or secondary sex characteristics, /or

And

(i) who, permanently or not, wish to express some aspect or aspects, or all of their gender identify [as referred to in (a)-(h)] in a way which is not unlawful or offensive

(j) where offensive is used in its ordinary sense.

(2) In relation to the protected characteristic of gender (identity) variance:

(a) a reference to a person who has a particular protected characteristic of gender (identity) variance is a reference to a person as defined in 7(1)(a)-(h);

(b) a reference to persons who share a protected characteristic is a reference to persons as defined in 7(1)(a)-(h)

Equality Bill, Vol 1, Part 2 - Equality: key concepts, Chapter 2 - Prohibited Conduct, Clause 15 - Gender reassignment discrimination: cases of absence from work

Page 11, Lines 1 - 5, Clause 15, section (1). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Clause 15, section (2). After 'because of', insert 'undergoing'.

Clause 15 now reads:

15 Gender (identity) variance discrimination: cases of absence from work

(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of gender (identity) variance as relates to persons in clause 7(1)(a).

(2) A person (A) discriminates against a person (B) if, in relation to an absence of B's that is because of undergoing gender reassignment, A treats B less favourably than A would treat B if-

(a) B's absence was because of sickness or injury, or

(b) B's absence was for some other reason and it is not reasonable for B to be treated less favourably.

(3) A person's absence is because of gender reassignment if it is because the person is proposing to undergo, is undergoing or has undergone the process (or part of the process) mentioned in section clause 7(1)(a).

Equality Bill, Part 2 - Equality: key concepts, Chapter 2 - Prohibited conduct, Clause 18 - Indirect Discrimination, section (3)

Page 13, line 18, Clause 18, section (3). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Clause 18 section (3) now reads:

(3) The relevant protected characteristics are-

...

gender (identity) variance;

... ...

Equality Bill, Part 2 - Equality: key concepts, Chapter 2 - Prohibited conduct - Other prohibited conduct, Clause 24 Harassment, sections (4) (a) and (5).

Page 17, Line 37, Clause 24, section (4) (a). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Page 17, Line 42, Clause 24, section (5). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Clauses 24, sections (4) (a) and (5) now read:

(4) For the purposes of subsection (1)(c), the conduct is-

(a) conduct mentioned in subsection (1)(a), if the relevant protected characteristic is gender (identity) variance or sex;

(b) conduct mentioned in subsection (1)(b).

(5) The relevant protected characteristics are-

...

gender (identity) variance;

... ...

Equality Bill, Part 3 - Services and public functions, Clause 27 - Provision of services, section (8) (b)

Page 20, Line 12, Clause 27, section (8) (b). Leave out 'sexual orientation'.[5]

Equality Bill, Part 4 - Premises, Clause 31 - Disposals, etc.

Page 23, Line 17, Clause 31, section (6) (b). Leave out 'sexual orientation'.[6]

Equality Bill, Part 4 - Premises, Clause 32 - Permission for disposal

Page 23, Line 33, Clause 32, section 4 (b). Leave out 'sexual orientation'.[7]

Equality Bill, Part 4 - Premises, Clause 33 - Management

Page 24, Line 21, Clause 33, section (4) (b). Leave out 'sexual orientation'.[8]

Equality Bill, Vol 1, Part 6 - Education, Chapter 1 - Schools, Clause 80, section (10)

Page 61, Line 15. Leave out 'Clause.80, sections (10) (a) and (c)'[9]

Equality Bill, Vol 1, Part 7 - Associations, Clause 98, section (2)(b)

Page 72, Line 30. Leave out Clause 98, section (2) (b). [10]

Equality Bill, Vol 1, Part 11 - Advancement of equality, Chapter 1 - Public Sector Equality Duty, Clause 143, section (6)

Page 105, Line 39, Clause 143, section (6). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Equality Bill, Vol 1, Part 14 - General exceptions, Clause 188 - Sport, section (2)

Page 134, Lines 25-30. Leave out Clause 188, section (2). [11]

Equality Bill, Vol II, Schedule 3 - Services and public functions: exceptions, Part 1 - Constitutional matters, Clause 4 - Armed Forces, section (2)

Page 151, Line 18, Clause 4, ss.2. Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Equality Bill, Schedule 3 - Services and public functions: exceptions, Part 5 - Insurance, Clauses 21 and 22

Page 157, line 5, Clause 21, section (4) (a). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Page 157, line 20, Clause 22, section (2) (c). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Equality Bill, Schedule 3 - Services and public functions: exceptions, Part 6 - Separate and single services, Clause 25 - Gender Reassignment

Page 159, lines 4 - 5, Clause 25, section (1). Leave out 'gender reassignment' and then insert 'gender (identity) variance'.

Page 159, Line 10. After Clause 25, section (2) (c), '... persons of one sex', insert:

' (3) A person who has the characteristic and a Gender Recognition Certificate is exempt from the provisions contained in section (1)

(4) A person who has the characteristic and who is presenting in their preferred gender role, whether or not they are intending to undergo, are undergoing, or have undergone, gender reassignment, is exempt from the provisions contained in section (1)'[12]

Clause 25 now reads:

25 Gender Reassignment

(1) A person does not contravene section 27, so far as relating to discrimination on the grounds of gender (identity) variance, 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

(2) The matters are-

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(3) A person who has the characteristic and a Gender Recognition Certificate is exempt from the provisions contained in section (1)

(4) A person who has the characteristic and who is living permanently in their preferred gender role, whether or not they are intending to undergo, are undergoing, or have undergone gender reassignment is exempt from the provisions contained in section (1)

Equality Bill, Schedule 3 - Services and public functions: exceptions, Part 8 - Supplementary, Clause 31, section (3)

Page 161, Line 16, Clause 31, section 3. After '...the Commission', insert 'and experts from (the) relevant minority group(s)'.[13]

Vol. II, Schedule 9, Work: Exceptions, Part 1 - Occupational Requirements, Clause 1 - General, section (3) (a)

Page 180, Lines 31-32, Clause 1 - General, section 3 (a). Leave out 'gender reassignment' and insert 'gender (identity) variance'. Leave out 'transsexual person' and insert 'trans person'.

Vol. II, Schedule 9, Work: Exceptions, Part 1 - Occupational Requirements, Clause 4 - Armed Forces, section (2)(b)

Page 182, Line 21. Leave out section '2 (b) a requirement not to be a transsexual person'.[14]

June 2009

[1] TransLondon is a major, regional discussion/support/lobbying group for all members of the trans community, whatever their gender identity and whatever stage in their transition they have reached. However, all members must themselves be trans-identified or 'questioning'.

[2] The term 'gender (identity) variance' is fully inclusive of the range of transgender, transsexual and intersex conditions, including (e.g. young) people whose identity may not be fixed and those who are perceived to have a variant gender identity.

[3] The term 'trans person' is more inclusive than the specific term 'transsexual' or even the umbrella term 'transgendered person' in that 'trans' is now understood to be inclusive of all gender variant identities including 'transsexual', whereas 'transgender' is not always understood to be inclusive of 'transsexual'.

[4] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum, Queer Youth Network, Trans Youth Network and GALOP showing that people do experience forms of harassment as a result of their (actual or perceived) sexual orientation and/or their (actual or perceived) gender (identity) variance.

[5] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum, Queer Youth Network and GALOP showing that people do experience forms of harassment as a result of their (actual or perceived) sexual orientation, including when accessing or attempting to access services and public functions.

[6] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum, Queer Youth Network and GALOP showing that people do experience forms of harassment as a result of their (actual or perceived) sexual orientation, including when leasing premises or accessing housing services.

[7] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum, Queer Youth Network and GALOP showing that people do experience forms of harassment as a result of their (actual or perceived) sexual orientation, including when leasing or disposing of premises.

[8] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum, Queer Youth Network and GALOP showing that people do experience forms of harassment as a result of their (actual or perceived) sexual orientation, including when occupying, or applying to occupy, property.

[9] Case study evidence is available from LGBTQ community, youth support groups such as Queer Youth Network and Trans Youth Network showing that young people do experience forms of harassment as a result of their (actual or perceived) sexual orientation and/or (actual or perceived) gender (identity) variance.

[10] Case study evidence is available from LGBTQ community support groups such as Camden LGBT Forum showing that disabled people do experience forms of harassment as a result of their (actual or perceived) sexual orientation and/or (actual or perceived) gender (identity) variance. Some may experience multiple forms of discrimination and/or harassment.

[11] If a person has undergone gender reassignment, they should always be treated subsequently as a member of their assigned gender - this means they should not under any circumstances be excluded from single sex sports teams or events for their assigned gender. There is no evidence that MtF (male to female) transsexuals have any advantage over natal females.

[12] A trans person who is living in their preferred gender role should be treated as someone who was born into that gender role. It should not be lawful to exclude a trans man or a trans woman from separate/single-sex services for men or women respectively, regardless of whether or not they have a Gender Recognition Certificate (GRC). There are many legitimate reasons why trans people might not apply for, or possess, a GRC. It should not be lawful for any service provider to request to see a GRC or to withhold services in the absence of a GRC.

[13] The Commission is able to advise on matters of general principle; however, the Commission does not necessarily possess the expertise to advise on the substance of clauses relating to individual minority groups. In particular, it is our experience that the Commission does not possess expertise about gender identity variance and trans people. No amendment relating to the rights of trans people should be ordered without consulting trans people first.

[14] There is no evidence that a trans man or a trans woman cannot perform armed duty as effectively as someone who shares their (permanent) preferred gender role.