Supplementary memorandum submitted by
Equality and Diversity Forum
The Equality and Diversity Forum (EDF) is a
network of national organisations committed to equal opportunities,
social justice, good community relations, respect for human rights
and an end to discrimination based on age, disability, gender
and gender identity, race, religion or belief, and sexual orientation.
EDF raises awareness and disseminates information on all aspects
of equality and human rights, providing a unique space for developing
dialogue, trust and working relations between organisations tackling
discrimination, social and economic disadvantage and human rights
abuse. We carry out research, run events and seek to inform public
policy development. EDF also provides the secretariat for the
All Party Parliamentary Group on Equalities. Further information
about our work is available at www.edf.org.uk.
In this briefing we will comment on a limited number of the questions
put by the committee.
1. Please explain how, in practice, the proposed
new duty will enhance human rights for individuals.
This new duty will apply to government ministers
and their departments and certain key public bodies such as local
authorities and strategic health authorities. They will need to
consider how desirable it is to take action to reduce socio economic
disadvantage. The duty will only apply to the strategic decisions
on spending, policy and service delivery taken by these public
bodies. The duty will not set out specific targets or priorities;
there is no obligation to publish information about the duty is
being applied and no direct enforcement powers. Whilst an individual
has no right to claim damages for breach of this duty, an action
for judicial review could be brought if an individual believes
that a relevant public body has not fulfilled this duty.
Although it is a modest proposal, the EDF broadly
welcomes the new socio-economic duty which should further encourage
public authorities to consider how to counter socio economic disadvantage.
3. Will the definition of the protected characteristic
of "gender reassignment" in clause 7 exclude individuals
with a transsexual identity from protection against discrimination
where such individuals have as yet not embarked upon the initial
stages of the medical process of reassigning gender, or manifested
a clear intention to undergo such a process, or who may not be
currently proposing to undergo any medically supervised process
of gender reassignment?
The definition set out in clause 7 is focussed
on those people who have decided to "undergo a process…"
We would suggest a wider definition of gender re-assignment, gender
identity, which will encompass those who are struggling with their
gender identity but have not yet reached a point where they are
proposing to undergo a process of changing physiological or other
attributes of sex, but may nonetheless face discrimination and
harassment.
13. Is the definition of direct discrimination
in Clause 13 sufficiently clear to ensure compliance with
the decision of the European Court of Justice in C-303/06, Coleman
v Attridge Law?
It is currently unlawful to discriminate against
or harass someone because they are "linked to" or "associated
with" or perceived to be a person who is of another race,
religion or belief or sexual orientation. However, current UK
law does not provide the same protection in respect of age, disability,
sex or gender re-assignment.
The European Court of Justice found UK law inadequate
in the Coleman v Attridge Law[152]
case, which involved a mother who was discriminated against because
she was the carer for her disabled son. The ECJ found that the
use of the words "on grounds of" in the relevant European
Directive, which had not been incorporated into the Disability
Discrimination Act 1995, included discrimination resulting from
an association with a disabled person.
The definition of direct discrimination in clause
13 is intended to bring UK law into line with European law
and we strongly welcome this. However, we consider that this interpretation
of the law is most clearly associated with the "on grounds
of" formulation of direct discrimination and it is less certain
that the "because of" formulation could be interpreted
so widely. We therefore recommend that the "on grounds of"
formulation of direct discrimination is used in clause 13.
16. Does the Government accept that if multiple
discrimination is confined to two protected characteristics, some
individuals subject to other forms of multiple discrimination
may be denied legal protection against unfair and unequal treatment?
There is an increasing awareness of the complexity
of the operation of discrimination within our society. People
do not simply fit into single-issue categories as black, disabled,
gay etc. Individuals are diverse, complex and multi-layered, and
sometimes they are treated unfairly for more than one reason.
However, our equality laws assume that the treatment of people
should be analysed by reference to one single characteristic at
a time. EDF considers it important that any new equality law is
able to take account of the treatment of the whole person, not
just one aspect of their identity. It seems likely that most cases
will be restricted to a combination of two protected grounds,
however, there are some cases where three grounds are engaged,
for example, the case of a Bengali Muslim woman who is treated
differently from a white Christian man.
17. Why does the Government consider that
it is unnecessary to prohibit indirect discrimination or harassment
which is based on multiple grounds?
The EDF regrets that the provision that the
Government is currently consulting on is limited to direct discrimination
only because we believe that this will cause problems for courts
and tribunals hearing these cases. Once it is accepted that when
people are subjected to discrimination on more than one ground
"it can be difficult, complicated and even impossible, to
prove such claims"[153]
there can be no good reason for excluding claims of indirect discrimination.
It is not always clear until the full facts are heard whether
a case under consideration is direct or indirect, whether the
resultant discrimination is caused directly or by the imposition
of a provision, criterion or practice. Restricting tribunals or
courts to the consideration of direct discrimination only in relation
to intersectional discrimination would be to create further problems
and complexities for them and is likely to add to the time that
any intersectional discrimination case takes to be heard. Appropriate
protection requires that indirect discrimination on more than
one ground should be covered.
Harassment, as a separate civil wrong, is particularly
important in relation to situations where there is no valid actual
or hypothetical comparator, situations when the employer may say
that everyone is treated equally badly. The fact that everyone
is treated badly should not be permitted to allow harassment whether
that harassment is on one ground or several grounds.
4. Why does the Government consider it to
be unnecessary to make provision for the explicit prohibition
of harassment on the grounds of religion or belief or sexual orientation
or gender reassignment in education (see Clause 80(10))?
It is difficult to understand why harassment
of school pupils is prohibited on grounds of race, gender and
disability whilst the grounds of sexual orientation, religion
or belief and gender re-assignment should be explicitly excluded.
There is no reason for this exclusion as there is clear evidence
of harassment in schools on grounds of sexual orientation and
gender re-assignment and to a lesser extent religion and belief.
Occurrences of gender reassignment issues are rare at school age
but not unknown and when they occur there is a significant risk
of harassment.
Sexual orientation: The 2007 Stonewall
report, the School Report, concluded that 65 per cent of
lesbian and gay secondary school pupils in Great Britain had experienced
homophobic bullying, 41 per cent of these had been physically
bullied and 17 per cent had experienced death threats.[154]
Religion or belief: The UK charity Beatbullying
has just reported that of over 800 children between 11 and
16 years of age 23 per cent reported being bullied because
of their religion or belief.[155]
Trans gendered people: The young trans person,
who is forming their identity in school, faces bullying and harassment.
Some 64 per cent of young trans men and 44 per cent
of young trans women will experience harassment or bullying at
school, not just from their fellow pupils but also from school
staff including teachers.[156]
73. Has the Government given consideration
to including a purpose clause in the Bill and, if so, why has
it rejected it?
EDF members would recommend that the Bill be
amended to include a purpose clause. We believe that this concise
clause stating the goals and underlying principles of the Bill
would be a useful tool for all those involved in applying the
law in practice.
152 Case no C-303/06, 29.7.08. Back
153
Equality Bill: Assessing the impact of a multiple discrimination
provision, April 2009, para 2.3. Back
154
http://www.stonewall.org.uk/education_for_all/research/1790.asp Back
155
Interfaith Report, Beatbullying, November 2008 http://www.beatbullying.org/pdfs/Interfaith%20Report.pdf
. Back
156
Engendered penalties: Transgender and Transexual people's experiences
of Inequality and Discrimination, Whittle, Turner & Al-Alami,
February 2007,para 2.9.
http://archive.cabinetoffice.gov.uk/equalitiesreview/upload/assets/www.theequalitiesreview.org.uk/transgender.pdf Back
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