There’s a lot of fuss about the provisions in the new Equality Bill relating to “gender reassignment”. As ever, many commentators are overlooking that the disability provisions in equality legislation offer greater protections – for instance in relation to expecting reasonable adjustments. There’s even a document on the EHRC website from the Equal Opportunities Commission which states the Disability Discrimination Act applies to GID, and this should be carried forwards to the new Equality Bill.
Tag Archives: law
A few days ago, Christine Burns, formerly of Press for Change (PfC) posted an article on her personal blog asking whether the Equality and Human Rights Commission is trying to “forget” trans people. Many trans people feel let down by EHRC. An analysis of their website shows little action on trans issues – press releases may mention gender reassignment in a tag cloud of equality issues, but there’s nothing recent at all in terms of anything substantial on trans issues. I Googled on the name of the chairman, “Trevor Phillips” and “gender reassignment” to see when he last spoke on gender reassignment. I got bored before I found any matches. Speaches on women’s issues and a lot on race, but precious little if anything on gender reassignment.
You’d have thought that after Thomas Hammerberg’s statement in December that “Discrimination against transgender persons must no longer be tolerated” that EHRC would have got the message and spoken up on trans issues. If nothing else, the Human Rights Commissioner had given EHRC a perfect platform to stand up and say, “We agree with the Commissioner. Discrimination against trans people can no longer be tolerated. Discrimination itself can no longer be tolerated against any class of people.”
Only they didn’t. Hmmmm. Concerning.
In fact there’s not even a mention of Hammerberg’s release on the EHRC website. The Human Rights Commissioner of the Council of Europe has issued a hardhitting viewpoint calling for an end to discrimination on one of the statutory strands of discrimination that the EHRC is supposed to promote and it doesn’t ever merit a link on the site.
Hmmmm, that’s downright worrying.
The Equality and Human Rights Commission is supposed to be the champion of trans people against discrimination and transphobia, just as they are the champions against discrimination on grounds of race or gender. Only there’s no evidence that they are fulfilling that role. In fact, rather than listing gender reassignment as it’s own equality stream, they keep trying to roll it in to gender. If gender reassignment ceases to be a stream then EHRC doesn’t need to do anything about trans issues because they are part of the gender stream and EHRC can show it’s doing a lot on that stream.
I suspect Christine’s timely article has touched a few nerves within the trans community and that EHRC will be called to account. But if they ignore online blog posts and letters to them, where will we go next? Who oversees the overseer when the overseer goes to sleep? Let’s hope we don’t need to find out and that EHRC in the next few weeks will get off their backsides and demonstrate that they understand trans issues and are committed to fighting trans discrimination. It’s not as if there is a shortage of issues. The many discriminatory provisions in the Gender Recognition Act. PCTs refusing funding. Transphobic bullying in schools. Transsexual adolescents being unable to get puberty blockers on the NHS. Lack of attention to discrimination against those who are transgendered but not transsexual. Problems with transsexual immigrants being deported even thought they will face persecution. Pension issues as highlighted by Thomas Hammerberg.
Hmmmm. Ahhhh. Perhaps that’s the problem. The majority of the discrimination is being perpetrated by the public sector. The EHRC would need to call the Government to account and they seem reluctant to rise to that challenge.
But if they don’t do much more for trans people and soon then I foresee national newspapers asking how EHRC can have credibility in equality issues if they so manifestly fail to act to support one of the most vulnerable groups in society. Having spent time with trans people over the past couple of years, I have learned that they are generally inclined to let things go but all of a sudden reach a tipping point at which their complaints become very vocal. It happened with Stonewall and, if the EHRC don’t pull their collective fingers out and soon, I foresee it happening again with the EHRC.
Alexia Pardo is a trans woman in Spain whose ex-wife has refused to allow Alexia to see her son when she started hormones. The Spanish Constitutional Court has refused a hearing to discuss the case and Alexia has vowed to take her case to the European Court. One has to feel sorry for Alexia. Even if she wins, the case will take time during which she won’t see her son grow up.
Internationally this may be an important case and set precedents across Europe.
As we write of things like the sectioning of trans people, it’s easy to see that as past, finished, something which could never happen again. Lest we forget, it’s important to remember that as recently as 2007 the British Government reaffirmed that in and of itself gender identity disorder(GID) can be grounds to section and individual. This was set out in appendix 1a of the fifteenth report from the Joint Committee on Human Rights in a letter dated 1 April 2007 from Rt Hon. Rosie Winterton MP (Labour), Minister of State, Department of Health. It includes sections like these:
The Government’s understanding, therefore, is that gender dysphoria and transvestic fetishism potentially constitute “a disability or disorder of the mind” in the terms of the Mental Health Act 1983 (“the 1983 Act”) and a “true mental disorder” for the purposes of Article 5(1)(e) of the Convention, where they reach a sufficient level of clinical significance. The issue has not arisen as far as the Government is aware, and the Government does not think it is possible, in the absence of case-law, to take a definitive view.
On the other hand, if a person did meet the criteria for detention as a result of gender identity or transvestic fetishism (or any other equally unlikely disorder) and needed to be detained for their own sake or to protect others then it is right that mental health legislation should enable appropriate action to be taken. But for that to happen there would have to be wholly exceptional – and very hard to envisage – circumstances.
What is doubly concerning is that when passing the Mental Health Act 2007 the Government specifically excluded learning difficulties as a mental disorder but, despite being urged to do so, retained the classification of GID as a “true mental disorder” which means transsexual people can be sectioned or forced to undergo treatment – for instance a transgendered adolescent could be forced by a pysch to undergo gender-reparative therapy.
There are less critical implications, which are nevertheless potentially serious to transsexual people such as the ability of Family Courts and adoption agencies to take a mental disorder into account when considering cases involving trans people.
It is also worth remembering that the Gender Recognition Act 2004(GRA) forces those who have undergone gender reassignment to secure a diagnosis of GID (ie of a mental disorder which could see them forcibly detained) even though it is, in practice, possible to receive hormonal treatment and surgeries to alter sexual characteristics without needing a GID diagnosis. This is surely wrong.
More positively, the suggestion that transvestism may also be regarded in law as a mental disorder means that transvestites (who have received no protection under the Sex Discrimination Act 1975) may have rights under the Disability and Discrimination Act 1995.