Memorandum submitted by Press for Change
PRESS FOR CHANGE AND THIS SUBMISSION
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. This
response is supported by over 21 other organisations for
trans and gender variant people.
SUMMARY OF
PRESS FOR
CHANGE'S
CONCERNS
1. The problems and limitations, and legal
issues, of using the term of "Gender reassignment" as
the characteristic determining protection in the Bill.
2. The inappropriateness of the phrase "Gender
Reassignment" to provide protection to children and adolescents
who express their gender differently from that expected.
3. The Bill's apparent allowing of school
bodies to harass children and adolescents because they possess
the characteristic of "Gender Reassignment".
4. The unlawful misuse of an exemption to
the Bill's protection because of the characteristic of "Gender
Reassignment" in the provision of a Single Sex Services.
5. The unlawful inclusion of a Genuine Occupational
Qualification that a Person not be a Transsexual Person.
We are also extremely concerned about the areas
where the Bill attempts to undermine EU and ECHR caselaw, legislation
and rights under the European Convention on Human Rights.
PFC'S CONCERNS:
GENDER REASSIGNMENT
OR GENDER
IDENTITY
1. PFC welcomes believes the definition
as suggested is unclear and will leave many members of the trans
community unprotected.
2. First, it defines a protected characteristic
by reference to a course of medical treatment and includes in
that definition persons who do not undergo such treatment. Furthermore,
we believe that "gender reassignment" is relevant to
a protected characteristic, it is not however a protected characteristic
itself.
3. Secondly, "gender reassignment"
may exclude certain transsexual persons who do not seek treatment.
"Changing sex" is not easy, as acknowledged by the European
Court of Human Rights, and gender reassignment is a long and arduous
road—which surely is not a pre-requisite to one's human
rights.
4. Thirdly, we believe that it is equally
counter-intuitive to define the state of mind of a trans persons
in deciding whether they would fall within a protected class of
persons (asking questions such as: "is the person 'proposing'
to undergo gender reassignment") rather than focusing on
the basis or motivation for the discriminatory behaviour by those
discriminating against the person, namely the person's perceived
non-adherence to gender norms.
5. We believe that the term "gender
identity" is more apt to providing protection for the groups
of persons envisaged by the drafters as requiring protection including
those enumerated in explanatory note 57.
6. Our position is supported by 98 per
cent of respondents to the survey who said they believe that protection
should be granted to anyone discriminated against on the basis
of their gender identity or expression.
7. This terminology whilst being more appropriate
is also in line with international developments.1 It is also
terminology adopted and used by the United Nations and the Council
of Europe.2,3,4
8. The Scottish Parliament has also used
"transgender identity for the Offences" (Aggravation
by Prejudice) (Scotland) Bill 2009 which has a fully inclusive.5
9. We are concerned with the use of the
term "gender reassignment" as the protecting characteristic
in relation to young people, in particular in light of the fact
that gender variance in children will remit for the majority of
children by adolescence (80-95 per cent)6.
10. The term "gender reassignment"
would expect a young person to comment whether they "intend
to undergo gender reassignment" in the future. It is important
to note that many pre-pubertal children will not have heard of,
or understand, the possibility of gender reassignment. In addition,
in the UK, children below the age of 16 cannot meet the UK
clinic's gender reassignment criteria for undergoing gender reassignment
or even establish that they wish to do so. Yet, young people considered
"gender variant" by others need protection against bullying
and victimisation.
Consequently, PFC believes the inclusion of "gender
identity" as a defining characteristic in Vol 1, Part 2,
Equality—key concepts, Chapter 1—Protected characteristics,
S.7 is essential to protect trans people and gender variant
children and adolescents.
THE BILL'S
FAILURE IN
RELATION TO
THE HARASSMENT
OF CHILDREN
AND ADOLESCENTS
11. The apparent permission in Vol 1 pt.6,
Chapter 1, Section 80, ss.10 for a responsible body of a
school to lawfully harass young people, allowing them to be subject
to discriminatory behaviour that would violate their dignity,
creating a hostile, degrading, humiliating, or offensive environment,
because they possess the characteristic of "Gender identity"
(or sexual orientation or religion or belief).
12. This is at odds with the provision in
Vol 1 Pt. 2, Chapter 2 , S. 24 Harassment.
Press for Change therefore recommends that the
clause Vol 1, Part 6—Education, Chapter 1—Schools,
S.80, s10 be struck from the face of the bill.
THE FLOUTING
OF EU AND
ECHR LAW IN
RELATION TO
SINGLE SEX
SERVICES AND
EMPLOYMENT
13. Press for Change is very concerned by
the exemption to protection for trans people in Vol II, Sch. 3 Part
6, Gender S. 25 (1) and in Vol. II ,Sch.9, pt. 1 General,
ss. 3
14. Both of these sections fail to acknowledge
that where a person has successfully applied for and been awarded
a Gender Recognition Certificate (GRC) their gender becomes for
all purposes the acquired gender.7
15. And as there have been no problems of
trans people applying for single sex jobs or using single sex
services inappropriately since the introduction of the Employment
Regulations (1999)8 and Sex Discrimination (Amendment of
Legislation) Regulations (2009), it is clear the vast majority
of businesses have adapted well to the use of their services by
trans people. The provision is also, legally unsound.
16. PFC believes that the provisions contained
in ss. 25 contravene articles 8 and 14 ECHR of
those trans persons following the decisions of the European Court
of Human Rights, in the cases of Goodwin, and I v United Kingdom
(2002), as confirmed by Grant (2006) Furthermore in Bilka-Kaufhaus
GmbH v Weber von Hartz (1987) ICR 110 the Court held that
for any such justification in anti-discrimination law:
"the objective of the (providers) measure
must correspond to a real need."9
17. There are also very good reasons for
believing that the House of Lords and ECJ will continue to uphold
in the question of access to goods and services or employment,
the principles contained in the Equal Treatment Directive 2004/113 (ETD
113) will follow the principles of the ETD 76/207. ie that a person
is recognised as a member of their new gender from the day they
transition.10
18. We believe that this has been reflected
in practice. In practice, none of the GOQs introduced by the Sex
Discrimination (Gender Reassignment) Regulations (1999) have proven
to be relevant. There is little case law, and that which there
is upheld the rights of the trans person to work in the employment.
In A v Chief Constable of West Yorkshire Police [2004] HL. 21,
E.W.C.A. Civ 1584, 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".11
19. This was later confirmed by the ECJ
in the case of Sarah Margaret Richards v Secretary of State Pensions12
and the ECHR in the case of Grant v. United Kingdom [2007] 44 EHRR
1.13
20. Furthermore barring a transsexual person
from employment who is in possession of a Gender Recognition Certificate
would be unlawful as persons with a GRC have to be treated "for
all legal purposes" as a person of that sex. The Gender Recognition
Act 2004 amended the SDA 1975 and removed GOQs from
applying to persons who held a GRC.
21. We further believe that the principle
can be extended to those trans people who are not living permanently
in their preferred gender role.
22. Press for Change believes that these
sections should be re-written,t make it quite clear that protection
already obtained is not to be removed. We would suggest that the
protection is extended to:
(3) A person who has the characteristic and a
Gender Recognition Certificate is exempt from the provisions contained
in …
(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 …
(5) a person who has the characteristic but where
the related gender expression does not take place within the (single
sex setting)/(workplace) is exempt from the provisions contained
in ss.(1)
REFERENCES
1 13 US States and Washington DC, and a
further 93 cities afford protection from discrimination on
the basis of Gender Idenity and Gender Expression.(Transgender
Law and Policy Institute at http://www.transgenderlaw.org/ndlaws/index.htm£jurisdictions
), Canada's Northwest Territories also use the term "gender
identity" to afford discrimination protection. In Spain,
Aragon's Public Authorities have to "guarantee the right
of everyone not to be discriminated against on grounds of sexual
orientation and gender identity". In Northern Ireland , the
Equality Commission has proposed an extended definition of gender
to include "gender identity" (ECNI (2007) Commission
Response to OFMDFM's Consultation "Implementing EU Equality
Obligations in Northern Ireland: The Gender Goods and Services
Directive", p. 5, available at: http://www.equalityni.org
.
The European Council Committee of Experts on Sexual
Orientation and Gender Identity Discrimination has also suggested
it would also be more appropriate to use the term Gender Identity.
The Yogyakarta Principles also use the term Gender Identity ,
defining it in its preamble as "'understanding gender identity'
to refer 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" (The Yogyakarta
Principles at http://www.yogyakartaprinciples.org/principles_en.htm
).
2 On 18 December , 66 countries of
the United Nations reaffirmed "the principle of non-discrimination,
which requires that human rights apply equally to every human
being regardless of sexual orientation or gender identity."
3 Thomas Hammarberg at http://www.coe.int/t/commissioner/Viewpoints/090105_en.asp
4 The second meeting of the European Council
Committee of Experts on Discrimination on Grounds of Sexual Orientation
and Gender Identity (DH-LGBT) is meeting in Strasbourg on 3-5 June
2009. They have published their Preliminary draft of the future
Recommendations on measures to combat discrimination based on
sexual orientation or gender identity. Relevant to the Bill, their
recommendations call for member states to comprehensively review
../cont cont/… and improve existing law, and take further
measures to combat discrimination on the grounds of gender identity..
Also ensure independent institutions ie the EHRC are fully mandated
to combat this discrimination, and consult fully with trans communities
on the adoption and effective implementation of law and policies
to achieve this.
5 At http://www.scottish.parliament.uk/s3/bills/09-AggPrej/b9s3-introd.pdf
6 Cohen-Kettenis, P. T., Delemarre-van de Waal
& H. A., Gooren, L. J. G. (2008): "The treatment of
adolescent transsexuals: changing insights". Journal
of Sexual Medicine. Volume 17, Issue 4, October-December, Pages
258-264.
7 The Gender Recognition Act (2004) s.9, ss.1
8 Sex Discrimination (Gender Reassignment) Regulations
(1999)
9 Bilka-Kaufhaus GmbH v Weber von Hartz (1987)
ECJ, ICR 110
10 A (Respondent) v Chief Constable of West Yorkshire
Police (Appellant) (2004 U. K, HL. 21, E.W.C.A. Civ 1584
11 A (Respondent) v Chief Constable of West Yorkshire
Police (Appellant) (2004 U. K, HL. 21, E.W.C.A. Civ 1584,
para 56, meaning the day they commence working in their preferred
gender role.
12 Sarah Margaret Richards v Secretary of State
Pensions [2006] ECJ (Case C-423/04) , ECR 1-000
13 Grant v. United Kingdom [2007] ECHR, 44 EHRR
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