Society has to decide from time to time what it regards as a ‘Protected Characteristic’ for the purposes of the Equality Act 2010. The most recent additions have been age discrimination, gender reassignment, religious beliefs and sexual orientation. Recently we have seen the boundaries of ‘belief’ broadening with ethical veganism becoming something that is capable of being protected by the ‘belief’ category. This demonstrates that legislation is versatile enough to start protecting communities that were not contemplated by the legislation when it was first designed 10 years ago.
However, there is one aspect in which the Equality Act is not keeping up with modern attitudes and that is attitudes to transgender people.
Gender reassignment is the term used in the legislation and we think of this as covering those who are transgender. Transgender is a term describing those who need to present themselves in a gender other than the one they were assigned at birth. Some people are ‘non-binary’ meaning those whose gender identity doesn’t fit neatly into the definition of man or woman. ‘Inter-sex’ is a term used to describe those as having both male and female biological characteristics, but of course those who are inter-sex may identify as male, female or non-binary when it comes to their gender.
Whilst gender reassignment is the process of moving from one gender expression to another, and legally it no longer requires anyone to be undertaking that process with medical supervision, the Act explicitly fails the non-binary and inter-sex community. Potentially, anyone who is inter-sex or non-binary is left trying to hook a discrimination claim onto the Protected Characteristics in the legislation. For example, a non-binary person may have to argue that in the future they might undergo permanent gender reassignment to fall within the Act’s protection. This requires people to categorise themselves in ways which might not reflect their identity. If you are inter-sex, it is unclear how your community is protected under the Act at all.
Clearly, these vulnerable communities will prefer the legislation to be amended to specifically include them. This has already occurred for example, under Jersey Law, which specifically includes the inter-sex community.
However, legislation is always the last resort for any vulnerable group – wouldn’t it be better if our policies and procedures were operating full diversity on this issue, adopting best practice and no-one needs to go to an Employment Tribunal?