Memorandum submitted by Equality Network
1. The Equality Network is a network of
lesbian, gay, bisexual and transgender (LGBT) organisations and
individuals in Scotland, working for LGBT equality. The Equality
Network's Scottish Transgender Alliance Project is the first government
funded transgender-specific equality project within Europe.
2. We would like to comment briefly on the
human rights implications of three parts of the Equality Bill:
the definition of gender reassignment, the exceptions in schedules
3 and 9 (in relation to gender reassignment), and the
provisions on harassment.
THE GENDER
REASSIGNMENT PROTECTED
CHARACTERISTIC
3. The Equality Bill somewhat extends the
scope of the present gender reassignment protected characteristic,
by removing the requirement for a person to be medically supervised
for their gender reassignment. It also extends the protection
to cover those who are perceived to be transsexual, and those
who associate with transsexual people. We welcome these changes.
4. However, the bill still only protects
transsexual people who propose to transition, are transitioning,
or have transitioned to live full time in the gender opposite
to that on their original birth certificate. Many transgender
people do not fall within this definition. For example, for a
number of reasons such as family commitments, a transsexual person
may not to be able to transition full time. Intersex people often
face discrimination as a result of their intersex status, and
most do not transition from one sex to the other and so would
not be protected under the gender reassignment definition in the
bill. And people who face discrimination because they are seen
as expressing a gender identity different from the norms are not
protected—this is a particular problem for pupils in schools.
5. 24 per cent of respondents to a
2008 Scottish Transgender Alliance survey were transgender
people who were not undergoing gender reassignment and instead
had an ambiguous gender presentation ("Transgender Experiences
in Scotland", Equality Network, 2008). Only 57 per cent
of 248 transgender respondents to our most recent survey
identified the bill's definition of "gender reassignment"
as applying to them ("Equality Bill Survey—Scottish
Transgender Alliance & Gender Spectrum UK", Equality
Network, 2009).
6. All transgender people are at serious
risk of discrimination, and all should be protected explicitly.
We believe therefore that the protected characteristic should
be gender identity, rather than gender reassignment.
7. The United Nations Economic and Social
Council (ECOSOC) has recently recommended that states should prohibit
discrimination on grounds of gender identity (ECOSOC General Comment
20, 25 May 2009). ECOSOC use the definition of gender identity
adopted in 2007 by an international group of human rights
lawyers and experts, as part of the "Yogyakarta Principles"
on the application of international human rights law in relation
to sexual orientation and gender identity:
"Gender identity" refers to each person's
deeply felt internal and individual experience of gender, which
may or may not correspond with the sex assigned at birth, including
the personal sense of the body (which may involve, if freely chosen,
modification of bodily appearance or function by medical, surgical
or other means) and other expressions of gender, including dress,
speech and mannerisms.
8. The group who developed the Yogyakarta
Principles state: "the Yogyakarta Principles reflect the
existing state of human rights law in relation to issues of sexual
orientation and gender identity". We therefore commend their
definition of gender identity to the Committee.
9. The Council of Europe's Commissioner
for Human Rights has called on European countries to address discrimination
against transgender people, based on the same definition of gender
identity (Thomas Hammarberg, 5 January 2009 www.coe.int/t/commissioner/Viewpoints/090105_en.asp
).
THE EXCEPTIONS
IN SCHEDULES
3 AND 9
10. Schedule 9, paragraph 1, allows discrimination
in employment if there is an occupational requirement, and the
discrimination is a proportionate means of achieving a legitimate
aim. We are very concerned that this is regression from the existing
protection for transsexual people, in a way which breaches their
human rights.
11. Employers are currently allowed to discriminate
on grounds of gender reassignment for certain posts (such as posts
involving living in someone else's private home), but only where
the transsexual person concerned does not have a gender recognition
certificate. Once the person does have gender recognition, no
employment discrimination is allowed on grounds of gender reassignment.
12. The general exception in schedule 9,
paragraph 1 is therefore a regression—it would allow
discrimination on grounds of gender reassignment against transsexual
people who have obtained gender recognition. In our view this
undermines the core purpose of the Gender Recognition Act 2004,
which is to ensure the privacy of transsexual people. We believe
that the wider exception in the bill breaches transsexual people's
article 8 right to privacy (Goodwin v UK, I v UK).
13. We have similar concerns about the exception
in schedule 3, paragraph 25. While this appears to restate existing
law, and is not a regression, it does provide that providers of
single-sex and sex-segregated services can discriminate against
transsexual people who have gender recognition, and so raises
the same privacy concerns.
14. We are also concerned about the effects
of schedules 3 and 9 on transsexual people who have
transitioned to live full-time in their acquired gender, but have
not yet obtained gender recognition. It is a requirement of the
Gender Recognition Act 2004 that a person lives for at least
two years in their acquired gender before they can obtain gender
recognition.
15. We suggest that the article 8 privacy
rights of transsexual people in that situation also need to be
protected as far as possible. We would also suggest that if a
person is living full-time in their acquired gender, then whether
or not they have obtained gender recognition, there is no good
reason for an employer or service provider to treat them less
favourably on grounds of their being transsexual.
HARASSMENT
16. We are very concerned about the missing
harassment protections in the Equality Bill: for sexual orientation
(and religion/belief) in clauses 27 (services), 31 to
33 (premises) and 80 (schools), and for gender reassignment
in clause 80 (schools).
17. Sexual orientation harassment by service
providers is just as commonplace as harassment related to other
protected characteristics. The Explanatory Notes to the bill provide
examples of harassment which is made unlawful by the bill, including
harassment on grounds of race in a pub (paragraph 116, final bullet
point), and harassment on grounds of disability by a schoolteacher
(paragraph 284, final bullet point). Both are examples that are
just as likely to occur on grounds of sexual orientation, but
the bill does not make this unlawful.
18. Concerns have been expressed about the
effect of provisions on harassment related to gender reassignment,
sexual orientation and religion/belief, on rights to freedom of
religion, and freedom of expression, under ECHR articles 9 and
10. We suggest that similar issues could potentially arise for
another protected characteristic, gender, where harassment provisions
are already in place in the Equality Bill. This suggests to us
that it should not be necessary to use a narrower definition of
harassment for gender reassignment, sexual orientation and religion/belief,
than for gender, to protect freedom of religion and expression.
19. The harassment provision in the bill,
clause 24, includes a reasonableness test for deciding whether
conduct is harassment (clause 24(3)(c)). We would suggest that
that test can be, and therefore must be, interpreted compatibly
with ECHR articles 9 and 10. If that is the case, the reasonableness
test would ensure that the harassment provisions are used compatibly
with the ECHR, and it would not be necessary to restrict the definition
of harassment to achieve this.
20. The importance of harassment provisions
covering sexual orientation and gender reassignment is illustrated
by the research. The Equality Network's 2007 survey of 97 lesbian,
gay and bisexual (LGB) people in Scotland found that one in five
had experienced sexual orientation discrimination or harassment
by providers of services, and just under half of those experiences
were clearly harassment, as distinct from direct discrimination—they
were abusive or derogatory language, humiliating "jokes"
and other bullying. The experiences covered a range of public
and private sector services, including the NHS, prison, cafes
and hotels.
21. Stonewall's survey of LGB school pupils
across Britain found that 65 per cent had experienced homophobic
bullying, and 97 per cent had experienced homophobic language,
in school. 30 per cent said that adults were responsible
for homophobic incidents in their school ("The School Report",
Stonewall, 2008).
22. Research for the Equalities Review found
that 64 per cent of young trans men, and 44 per cent
of young trans women, experienced bullying and harassment at school,
some of which was by staff ("Engendered Penalties",
Equalities Review, 2007).
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