Some are more equal than others
Zöe has a must-read post called simply Equality? over at her blog, in which she takes a look at the changes the Equality Act 2010 (direct link to PDF) will bring and concludes that:
It means that there is one “protected” class where protection is explicitly removed, not granted. It means that a gender recognition certificate is not worth the paper it’s printed on. Rather than being a recognition that they are of the target gender, it’s a nullity, as the law states that they’re not, not really.
[...]
[...] any legally sex-segregated area can now legally exclude anyone who’s trans from either being employed there, or as customers.
Regardless of whether they have a GRC or not.
All the proprietors have to prove is that it’s genuinely possible some of their clientele might be lost should they allow a “transsexual person” to be present on the premises.
Note also that the converse does not apply: it is illegal sex-discrimination to require counsellors for trans people to be trans themselves.
[...]
[The Equality Act 2010] effectively repeals large sections of the Gender Recognition Act 2004 – to wit, in all areas of provision of legally sex-segregated services. Things like toilets for example.
Note that it does not apply to transgendered people who are not transsexual persons. Only those who have started or completed the process of transition. Crossdressers good, transsexuals bad.
So apparently, even though I have a full GRC, and all my other documentation shows my gender correctly, I will no longer legally be a woman when this Act comes into force in October; I’ll be a “transsexual person” and that means I can forget it if I think I can count on UK law for any protection of my civil and human rights.
I’m already seeing a groundswell of outrage and anger amongst some of my trans sisters online; I think it’s entirely understandable, even justifiable. Because, when you get right down to it, cis society is transphobic, by default and to its core; there is precious little respite for trans people and, like most humans, repeatedly backing us into a corner isn’t going to put us in the best of humours.
But anti-trans prejudice is so deeply embedded in cis society that all the legislation in the world is never going to change anything for the better, least of all the attitudes of cis people. There’s no logic, no acceptance and certainly no justice. There never really was – all this legislation will do is formalise a state of affairs which already exists.
Cis people may, rightly, feel aggrieved about the low proportion of reported rapes that end in a successful prosecution – but has anyone ever seen statistics for reported rapes of trans people? Has anyone ever heard of even one trans person who’s seen a successful prosecution? And there may well be too few rape crisis centres available to cis women – but how many of them will even let a trans woman through the door, let alone offer help and support?
The fact is that the law – like many other aspects of society which the majority of cis people take for granted – is simply not accessible to us. Trans people are routinely dehumanised and demonised, excluded and harassed, attacked and even murdered with impunity by cis people from across the entire class spectrum – and, be honest, would you trust a system in which nearly everyone you meet treats you as less than human?
As the old joke goes: it doesn’t matter which way you vote, the government still gets in. And as far as I’m concerned, with this legislation, the government looks set to do a far better job of morally mandating people like me out of existence than Janice Raymond could ever dream of.
I’ve contacted Lynne Featherstone, the Equalities Minister, about this. She’s usually been pretty good on trans issues, and this is a Labour leftover, so with a bit of luck it’s something the new government will fix…
Andrew Hickey
2 Aug 10 at 9:25 am
This situation with this *In*equality act 2010 is just so depressing. Not much different here in the US.
It is clear that (most) cis people, at least in the global North, want us dead.
Why should I vote? I’ll only be voting for people who want me dead. That includes the Greens and other supposedly “leftist” parties.
GallingGalla
2 Aug 10 at 10:32 am
There was one rape of a transperson that was successfully prosecuted that I have heared of. It was a woman in Llanelli. She was hounded out of the town following a concerted campaign against her.
Krissie
2 Aug 10 at 10:54 am
[...] the analysis from Questioning Transphobia makes clear, this is actually a backward step: it effectively overrides the Gender Recognition Act [...]
The human cost of wars within feminism « Trans Youth Takes On World
2 Aug 10 at 2:03 pm
Erm, is this new news? I remember this being picked up and dissected earlier. (Not in any way disparaging the latest dissecting of it, verifying/comparative data is always good.)
Sadly both the Equality Act have been like those cakes you see in cake shop windows: massive with very fancy wow-ing icing and decoration …but if you cut into them, an empty cardboard box. The ‘”consultative meetings” were laughable.
Jessikat
2 Aug 10 at 3:05 pm
Why were the consultative meetings laughable?
helen
2 Aug 10 at 3:15 pm
Jessikat,
It doesn’t have to be new news to be posted here. A significant number of QT posts are for discussion as well. Also, in this case, I think the wording has just been spreading through the blogosphere, and so people are going to talk.
Who picked it up earlier?
Lisa Harney
2 Aug 10 at 3:27 pm
This was absolutely news to me. I’m floored by this. And once I get over my flu and start thinking clearly again I’ll be badgering my MP with an intensity he’s not seen from me since, um, like a month ago?
Thank you for posting this here.
Alyson
3 Aug 10 at 7:07 am
Institutional inertia is powerful, and social change is difficult, but it’s simply not true that “all the legislation in the world is never going to change anything for the better, least of all the attitudes of cis people.” First of all, legislation can give (or deny) minorities tools to use in court. Second, it has the power to do direct harm (or good) by reducing (or increasing) the incentive for fair treatment. But also, there is pretty good evidence to suggest that laws do change attitudes directly. People love to derive their opinions from authorities, and laws make great authorities. One experiment, for example, showed that, when told that there was a law against something, people felt more personally opposed to it than they did when they were told that there was merely a proposal for a law.
Just because the law does a lot of harm doesn’t mean that the entire system isn’t worth participating in.
Sara
3 Aug 10 at 1:40 pm
I’ve been commenting on this at BoP and elsewhere to the effect that there could be some misreading of the act and it’s consequences in the OP and that it might be as well to get clarification before acting on it…
Sophia
4 Aug 10 at 12:34 am
Hmm, yeah, I dunno. Problem is that we’re only going to know for sure if it’s tested by a court case. And, if Zöe is right in her interpretation, by then it’ll be too late, of course.
helen
4 Aug 10 at 12:44 am
On how the exceptions might work in the limited way that they’re being talked about, that would be true.
But there’s a fair body of case law that should pretty clearly show whether those exceptions can be carried on principle to lots of sex segregated places. My bet would be that that couldn’t happen. It’s been tried in other discrimination cases and failed generally because UK law allows intent to be considered so that attempts to broaden the exceptions greatly is problematic in that it might clearly be seen as attempting to subvert the act’s main purpose.
Really not sure about this, but it might well be that answers as to roughly how far, if at all, these exceptions to the general rule of non-discrimination could be taken, could be derived by someone familiar with the operation of UK law in these areas.
Sophia
4 Aug 10 at 1:45 am
Oh dear. The previous Labour government’s treatment of trans issues was always a pleasant surprise to me, given their close ties to transphobic groups and people within feminism here (including Julie Bindel). I guess the other shoe just dropped in particularly nasty fashion.
Sophia: the stated intention of this clause – to exclude trans women from rape counseling services, domestic violence shelters, and the like – is bad enough even in the unlikely event discrimination doesn’t extend further.
makomk
4 Aug 10 at 3:30 am
Given the precise examples used, it’s pretty clear where those examples came from (if not specifically from who).
Lisa Harney
4 Aug 10 at 3:31 am
When cis feminists push this sort of perspective, it makes it clear that they’re campaigning to maintain trans women as acceptable targets for violence and rape. The whole point, after all, is to isolate trans women from services that can provide shelter or support.
It’s pretty wretched that the government is actually going along with it.
Lisa Harney
4 Aug 10 at 3:34 am
@makomk The examples are for group rape counselling and for working as a rape counsellor. As I read it, excluding trans women from access to individual rape counselling, for example, would be held to be discriminatory and illegal.
The ‘new distinction’ between cis and transexual persons is specifically done within the act to designate people with the protected characteristic of gender reassignment, which exists from simply telling your boss that you are starting to transition.
Not saying that there’s nothing to fight here. Just that it’s not clear whether it’s a strictly limited engagement or a full fledged war.
Sophia
4 Aug 10 at 6:14 am
Sophia: if the one-on-one counseling is provided in a facility that’s women-only, and they can convince the courts that cis women might be scared away by encountering trans women in common areas, organizations can in theory refuse to provide one-on-one rape counseling to trans women too. (This might not be deemed “proportionate” by the courts, but I wouldn’t bet on it.)
Then there’s the now-legalised discrimination in employment – this was previously against the law. I believe that many rape counseling services here are still run by transphobes who will refuse to employ trans women on principle, regardless of what the women they’re providing services to actually think. Combine that with the fact that it’s going to be illegal to discriminate in favour of, rather than against, trans women when hiring and there’ll probably be next to no trans rape councilors. Which isn’t much good for any victims that’d understandably rather talk to someone who is also trans, is it?
As usual, cis women’s dubious transphobic beliefs are more important than trans women’s actual problems with discrimination. (I’m not even talking about the rape victims seeking help here, just the assumptions made by the cis women running the services about what they’d want.)
makomk
4 Aug 10 at 4:45 pm
Makomk : If you look through sections of the act dealing with, say, disabled employment, there are a load of examples of what constitutes ‘legitimate’ and ‘proportionate’, and the lengths an organization must go to to accommodate different requirements. Blanket refusal of trans women in a rape crisis centre would mean putting forward that no such reasonable modification of common areas etc were to be possible,on top of the idea that the sight of a trans rape victim would be majorly triggering, something it’s hard to imagine a court buying.
Re- employment, yes, this sucks. I’m not sure , though, where the act states that it’s illegal to discriminate in favour of trans people if it’s to achieve a legitimate aim ; eg correcting under-representation,especially where there may be a disproportionate number of trans users of the service, as in the case of gender imbalance where that principle applies.An apartheid type rape counselling service that allows for a trans quota, I can’t see as desirable.
And in the case of rape victims, I’d say immediate access to counselling is 99% important compared with whether the counsellor was cis or trans, which does work both ways.
A further point is that in the case of rape victims presentation of gender around them may, as Zoe says, be of absolutely legitimate concern. Dealing with that in legislation would be a nightmare and it may be that placing the legally circumscribed duty of judgement on the providers of counselling is a roundabout way of dealing with it. (If you could show, say, a history of anti-trans hate by such a provider that would be grounds for a challenge to their judgement, in the case of both stated exceptions ).
Like Lisa says, we all know where and possibly through who, these issues and examples are coming from. Yes, they do cater to transphobia, and yes that’s deeply offensive.
All I’m saying is that none of us commenting here are sufficiently well versed in anti-discrimination UK law to know whether this opens the floodgates to anti-trans discrimination or ties it down to a small area and that the OP is a fine wake up call to first find out the disposition of the enemy, as far as possible, and then draw up our own battle lines.
Sophia
5 Aug 10 at 2:38 am
One thing Zöe’s mistaken about: this doesn’t privilege crossdressers. To the contrary, they are explicitly excluded (and arguably, non-op trans people too) by language that talks about “undergoing [...] a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
They get zip. Nada. Fire a cross dresser? Discriminate against them? The law doesn’t care.
Julian Morrison
6 Aug 10 at 9:40 am
I see my comment over at the F-Word pointing out that this was exactly, precisely what Julie Bindel called for didn’t make it past moderation. No surprise there; they’ve always been quite supportive of her, and even at best criticism of transphobic feminism there has been muted and apologetic.
makomk
10 Aug 10 at 2:03 am
I didn’t post your comment at TFW because it provided no proof to back up your assertion that Ms Bindel was somehow responsible for the legislation being passed.
And as I said there, I don’t believe that playing the blame game serves any useful purpose: the EA is what it is and I’m more interested in seeing if there is any way to challenge the provisions of the Act.
helen
10 Aug 10 at 2:20 am
Helen: How do you expect to challenge the provisions of the Act if you don’t know how and why they got there in the first place and why no-one could get them removed? Any attempt will almost certainly run into the exact same problems.
Now, while I wasn’t saying Julie Bindel was responsible then, I’ll say it now: she has some responsibility. She publicly demanded in the major British left-wing newspaper that women-only organisations must have the right to discriminate against trans women, that it’s a matter of women’s rights – using the exact same reasoning the Government gave for making this legal. Publishing this kind of transphobic argument unchallenged in a national newspaper has consequences – even if it merely emboldens others who already held these views. (Remember that many Labour MPs read the Guardian.) Of course, the fact she’s been in close contact with the people in the Labour government that wrote this law through her anti-trafficking activism only makes her views even more important.
As it happens, it’s impossible to pin down exactly how those clauses got into the legislation or stayed there. They’ve been in the bill in similar form since the initial version presented by Harriet Harman, there’s no Parlimentary discussion of them anywhere that I can find, and the bill was crammed through into law without the usual Commons debate (at Harriet Harman’s insistence). Any lobbying for them happened in private outside the official consultation process. All the relevant information is non-public and exempt from the Freedom of Information act.
There were, however, complaints about this part of the Bill from the very start – even one by the Equal Opportunities Commission (scroll down to “Gender Reassignment and Single Sex Services”). Which makes it even more interesting that it stayed there…
makomk
13 Aug 10 at 2:18 am
makomk: How do you expect to challenge the provisions of the Act if you don’t know how and why they got there in the first place and why no-one could get them removed? [...] As it happens, it’s impossible to pin down exactly how those clauses got into the legislation or stayed there.
I’m sure you’ll correct me if I’m wrong, but you seem to be saying that, in your opinion, there’s no way for the provisions of the Act to be challenged – or do you see a way to overcome the problem? I’d be interested to hear your proposals.
helen
13 Aug 10 at 3:12 am
Well the EOC seem to be stating that the provisions may not be in accord with european directives, which presumably gives grounds for either challenging or seeking to extend.
But that appears to be over 3 years ago and generally europe has moved towards even greater protection since then.
Sophia
13 Aug 10 at 12:29 pm
helen: It should be possible to challenge this provision in the courts, but if they buy into the transphobic argument used to justify it any such challenge will fail – if you buy into the justification given then it’s entirely compliant with European law. Unfortunately, this form of transphobia in the name of feminism is rather more acceptable in polite UK circles – and elsewhere – than more general transphobia. Without the feminist justification these provisions would be considerably less likely to survive.
makomk
16 Aug 10 at 8:12 am