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Challenging the conventional thinking on transgender provision in the Equality Bill
Posted on May 21st, 2009 6 commentsThere are two main objections from those who believe that the Equality Bill does not do enough to cover transgender rights.
First, the case is put forward that harassment provisions require ‘outing’ and ‘categorization’: something which is obviously undesirable for anyone whose very identity is all about rejecting ‘being outed’ or ‘categorizing yourself’.
Second, it is argued that you are simply ‘not covered’ by the Equality Duty, the discrimination provisions, and others, unless you are either undergoing medical supervision, or “living” as a transsexual.
Point 1:
The first point is simply wrong. The law does indeed require identification - but it is identification of the nature of the harassment, not the identity of the victim. So for example if I am straight, but perceived to be gay, and thereby subjected to homophobic bullying, I can claim to have been the victim of homophobia without ever having to disclose whether or not I am in fact Gay. The law allows this by including ‘affiliation’ with various groups. This doesn’t mean that you yourself have to ‘affiliate’. It just means that the bigot who harasses you has to have done so for homophobic reasons - because in their mind, you were a suitable target for their harassment.
The same applies to the transgender community. If you are the victim of transphobia, then it does not matter whether or not you are transsexual (medically or otherwise): it only matters that in the mind of the perpetrator you were affiliated with the trans community. This means that a butch schoolgirl who is bullied does not need to identify as transsexual in order to benefit from the protection of the law. It is enough to argue that she was discriminated against for affiliation. Again, this affiliation is not something that will have to be verified - because it is the perpetrator who made the affiliation, not the victim.
Point 2:
This second point is more complex, and it seems that it is something that would need to be tested in court. The bill gives an example: that if someone born physically female “successfully ‘passes’ as a man without the need for any medical intervention”, then for the purpose of the law, they will be considered to be undergoing gender reassignment, which would allow them all the benefits of the bill - coverage by the Equality Duty, Positive Action in employment, and so on.
What the law does not provide is a definition of ’success’. How do we decide if someone is a “successful” transsexual? Is there a time period which must have elapsed? Is there a legal document which must be signed? Do we conduct a public opinion poll? Obviously none of these are appropriate, and it seems that if a case ever came to court, the requirement for ’success’ would be seen as arbitrary. In the same way that we do not have a litmus test for the ’success’ of a marriage, we cannot apply a litmus test to the ’success’ of someone’s so-called gender reassignment.
So if, for example, I were born physically female and “woke up one morning”, and declared to myself: “I am a man”, there would be nothing a court could do to dispute my self-identification. Equally, there would be nothing they could do to dispute me if the following day, I decided that I was a woman again. Because by my own standard, I had successfully ‘passed’ as whichever gender I chose. And similarly, I could change my identification hour-by-hour, minute-by-minute - without a court ever being able to prove that I was not ’successfully passing’ as whatever gender identity I wanted.
Under these circumstances, it is hard to see how the Equality Bill would not provide for anyone, of any gender identification, to be covered by the legal phrase “undergoing gender reassignment”.
6 responses to “Challenging the conventional thinking on transgender provision in the Equality Bill”
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I agree with the fact that the definition of discrimination, harassment and victimisation is “because of” a protected characteristic and is intended to include association with and mistaken assumption of the person belonging to a protected group, however I do not believe that that extends to the equality duty.
Also it is important to note that cross dressing, androgony and other ideas which either break/deny the gender binary or those where the person is known not to be undergoing an process to live in *the* *opposite* gender are not covered - or at least not in a simple way.
I believe that a wider definition is necessary. Gender Spectrum UK has discussed this in detail at http://pollik.org.uk/forum/viewtopic.php?f=20&t=262 and http://pollik.org.uk/forum/viewtopic.php?f=20&t=370&start=0&st=0&sk=t&sd=a - my current favourite definition is from James Morton in the second of those links:
“The protected characteristic of gender identity meaning whether or not a person’s gender-related identity, physical appearance or behaviour conforms to the sex they were legally assigned at birth, or to the identity, physical appearance or behaviour traditionally associated with that sex.”
Alex
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In addition to my above post, I read the gender reassignment as being a more permanent change than the hour-by-hour changing you suggest above. This could be due to the permanence suggested in the two examples and the idea of a “process changing physiological or other aspects of sex”.
I still believe it lacks inclusion for people who don’t fit into the gender binary.
Alex
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I agree - the law wasn’t intended to cover hour-by-hour alternations. My point is that it could nonetheless be read that way - simply because the idea of a “successful process” would never, ever, hold up in court.
And if that’s the case, then drag artists, for example, could be protected under the law: because for the few hours that they’re performing, they’ve undergone a “successful process of change”. Cross-dressers, likewise, could arguably be “undergoing a successful process of change” (who’s to argue?).
Once you establish that principle, I believe that you could argue for inclusion of anyone rejecting the gender binary - after all, how rapidly does the pendulum have to swing back and forth before it appears to occupy both spaces at once, or neither spaces, or the middle ground?
As you said, “…not in a simple way”. This is why it would probably have to be tested in court to establish a precedent. My only point is that is IS a possibility, legally.
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… I acknowledge, it’s a rather roundabout and messy way of arriving at the same point: which is that those who reject the gender binary should be included in any Equality laws.
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To expand on my “not in a simple way” comment, I think my meaning there is that the surface understanding, the common sense understanding, of “gender re-assignment” excludes those who transgress the binary.
As a guy who thinks skirts are comfortable (especially in clubs) but has no intention (or, to be honest, hope) of “passing” as female I think you can probably argue I have undergone a process (of getting dressed), but I am not “reassigning [my] sex by changing physiological or other attributes of sex” and so do not fall under the protected characteristic in this instance. the legislative language does not make any reference to success or not of the process, merely the purpose being to change sex.
I believe we should be pushing for a much clearer, wider definition.
Alex
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This is an interesting debate. it certainly seems as though the removal of the requirement for medical supervision has potentially widened the definition of gender reassignment.
Can I just note that the idea of ’success’ discussed here is a bit of a red herring. The word is not used in the legislation - just in the explanatory notes. The Courts may look at those notes in interpreting the legislation but then again they may not. They certainly won’t look at them in the same way as the legislative language and so they won’t need to define ’success’ at all.
What matters is that someone has undergone a process of reassigning their sex. That phrase suggests to me a very clear move from A to B rather than the wider concepts that Alex refers to.
Of course if the claim is for harassment then the tribunals will take a very common sense view - and harassment needs only to be ‘related to’ a protected characteristic. That includes gender as well as gender reassignment. I would have thought that someone harassed for cross-dressing would have a good claim of harassment based on gender as the harasser is seeking to impose a view of how someone of a certain gender should dress.
The situation is much less clear when we look at the Equality Duty however, but since the duty does not create individual rights we aren’t likely to see the point litigated.
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penwing May 21st, 2009 at 18:41