Trans groups are simultaneously lobbying the UK Government to change the protected characteristics and scrap single sex provisions within the Equality Act 2010 AND being funded by the Scottish Government to develop guidance and deliver training to policy makers, organisations and service providers.
Can anyone see that there might be some conflict here? We already know that Impact Assessments weren’t performed for a number of these new guidelines/policies. Is anyone at the Scottish Government overseeing the legalities of these training packages and guidelines?
Who is looking out for women and girls?
Local Authorities in Scotland are being incorrectly ‘trained and advised’ about the protections within the Equality Act 2010.
LGBT Youth Scotland School Guidance has been issued to all schools across Scotland, yet no authority has carried out any Risk Assessments. This was co-written by a group who want to scrap single-sex provisions. It contains Good Practice for schools to permit transgender youths to use the single-sex facilities and communal accommodation of their preferred gender rather than their sex. Is this Good Practice in line with the Equality Act 2010?
Scottish Prison Service Policy states “A male-to-female person in custody living permanently as a woman without genital surgery should be allocated to a female establishment. She should not be automatically regarded as posing a high sexual offence risk to other people in custody “. Is this in line with the Equality Act 2010?
The Equality Act 2010 permits schools, prisons, hospitals and other single sex groups like Girlguiding to exclude transgender people, this is especially true where women and girls would need their right to privacy and dignity respected for example if they are undressing or using shared accommodation. The legislation acknowledges that women only spaces are needed and that any decision to permit a male transgender person access must be balanced with the needs of those women and girls using those services and any possible detriment to them.
This is the evidence that was submitted to Women & Equality Committee 2016 requesting amendments to the Equality Act 2010.
Scottish Trans Alliance and Equality Network
The Equality Act 2010 should be amended to:
o Include gender identity as a protected characteristic
o Remove the exception that allows single sex services to discriminate against trans people
o Remove the genuine occupational requirement (GOR) allowing some jobs to require applicants must be cisgender and replace it with a GOR allowing posts delivering trans-specific services to require applicants must be transgender
The effectiveness of the Equality Act 2010
19. Stonewall is aware that ‘gender reassignment’ as defined in the Equality Act can be understood to cover a broad range of trans identities. However, because the current definition places an emphasis on a process of transition, it is unclear whether all trans people are protected.
20. The schools and employers that Stonewall works with understand the term ‘gender reassignment’ in different ways. Many are unaware that trans people who do not take medical steps to transition are protected. They are also uncertain about whether people who do not describe their identity in terms of a transition, are protected. Stonewall is particularly concerned that the definition does not explicitly provide protection for non-binary people.
21. Stonewall is deeply concerned that exemptions within the Act actively remove protections for trans people. Schedule 3, Part 7, permits service providers to deny ‘transsexual’ people access to separate or single-sex spaces. Exemptions in Schedule 9 in the area of occupational requirements allows employers to have a requirement for employees ‘not to be a transsexual person’, including in the Armed Forces. In addition, Part 14 permits differential treatment in ‘gender-affected sport’.
22. Stonewall also believes that these exemptions sit in contention with the Gender Recognition Act as they imply that being a ‘transsexual person’ supersedes a person’s legal gender.
23. Stonewall believes that amending the protected characteristic ‘gender reassignment’ to ‘gender identity’, and ensuring that this is defined to cover a broad range of trans identities, would send a clear signal to trans employees and service users, public bodies and employers, that all trans people are protected by The Act.
We recommend expanding the protected characteristic of gender reassignment to include gender identity and expression so that non-binary identities and cross-dressers are clearly covered.
James Morton, Manager, Scottish Transgender Alliance Oral evidence
James Morton: We would like to see the protected characteristic be gender identity as defined in the Yogyakarta Principles, so it is clear they are fully inclusive. In terms of case law, there is a lot of fear about being a test case. It is incredibly emotionally demanding. You would be scrutinised by the press; your identity may well end up mocked. You do not have a guarantee that there would be reporting restrictions; you might be lucky and get those, but you are not certain to. We have been trying to persuade people to take forward test cases, but people are very nervous of doing so, and we cannot make someone give up years of their life to that process.
The guidance could be stronger and better, but really without moving to a protected characteristic of gender identity there are still these loopholes. There are also non‑binary people who decide, for various personal reasons, “I am not going to change the gender in which I live. I am going to continue living in my birth gender, but I might want to share with others that my gender identity is not as simple as that.” However, the act of sharing that information could lead to discrimination, and, because they are not proposing any part of a process of moving away from their gender assigned at birth, they would not have protection. The perception coverage would only be if they were perceived as transsexual, and if they have come out as non‑binary, they are being perceived as non‑binary, not as transsexual. So even if you had some case law, there would still be these gaps, and that is why we think that the protected characteristic needs to change.
Q175 Chair: James, just moving the discussion on a little, in terms of the way that the Act works, your organisation argues for removing the expectation that allows single‑sex services to discriminate against trans people. Would you include in that women’s refuges?
James Morton: It is really important to recognise that just because somebody might need slightly different provision or might have some additional complexities about being included in a service, that should not be reason for not trying to include them or for treating them worse. The exception, as currently drawn, effectively has no limit. You could be decades transitioned, you could be fully integrated and you could still be turned away at your moment of need from a refuge or from a rape crisis service. It boils down to whether or not you really see trans women as women. If you see a trans woman as a woman, then, just like a very butch lesbian woman or a woman with a severe mental illness or a Muslim woman in a burqa might be perceived as difficult to integrate or might receive a negative reaction from other service users, you would not turn them away. You would work to educate, you would work to support and you would work to try to make sure that that service could be accessed by them, and that is really important. It is also important that we recognise that this is a small number of people, it is not going to overwhelm a service. There are services, such as rape crisis services and women’s refuges, that are trans‑inclusive successfully and have not found it impossible to do. They have done it very successfully, so why can others not? It needs to be looked at and, yes, there might be some situations and very limited situations where you might have to treat someone differently, but they should not be treated worse.
The Scottish Government needs to urgently review all of the guidelines and policies to ensure they are compliant with the Equality Act 2010. It is not enough for them to say these are not Government issued guidelines when the lobby groups who have created them were given funding from the Government to do just that.
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