Wednesday, June 24, 2009

PFC’s Submission to the Joint Committee on Human Rights

The Equality Bill has nearly finished its' committee stage scrutiny in the House of Commons and, after a report debate and third reading, is expected to pass the first stage on the way to becoming law. The second stage will be when the Bill returns to be similarly debated and scrutinised by committee in the House of Lords in the Autumn.

MPs from all sides in committee have attempted to change aspects of the Bill which lobby organisations have misgivings about – mostly without much success.

MPs Lynne Featherstone, Evan Harris and Tim Boswell have presented a number of amendments recommended by the trans rights organisation Press for Change. The Government has not acceded to these.

Unfortunately it has not been possible to publish anything previously about PFC's recommendations, because their briefing paper was ring fenced by warnings about their intellectual property and PFC have not published anything themselves in the public domain. However, the group's submission to the committee is available in this format on the Parliament Web Site.

The fact that the Government has resisted these desired amendments in committee is not the last word on the matter. MPs have the opportunity to raise the issues again at second reading in the Commons (and, if necessary force a division for all MPs to vote). During the summer the Joint Committee on Human Rights (JCHR - a standing committee with members from both Houses of Parliament) will scrutinise the Bill as well – as they do for all legislation impacting Human Rights.

Press for Change has again issued a submission to the JCHR. Again, unfortunately, they've failed to publish it online in a form where people can go and read what they've said. (They merely emailed a blind list of interested parties).

I'm not proposing to comment on that way of working, however I think it is vital that more people should be able to understand the issues which they are raising. Therefore I'm using this Blog to paraphrase their submission, which will eventually be published on the Parliament web site in full in any case.

PFC begin by explaining who they are.

Press for Change (PFC) is the largest representative organisation for trans people in the UK. Formed in 1992 to "seek respect and equality for all trans people in the UK", through case law, legislation, and social change, it reaches around 2,500 transgender and transsexual people in the UK. This response is supported by over 21 other organisations for trans and gender variant people.

Then they summarise their concerns.

  1. The problems and limitations, and legal issues, of using the term of 'Gender reassignment' as the characteristic determining protection in the Bill.
  2. The inappropriateness of the phrase 'Gender Reassignment' to provide protection to children and adolescents who express their gender differently from that expected.
  3. The Bill's apparent allowing of school bodies to harass children and adolescents because they possess the characteristic of 'Gender Reassignment'.
  4. The unlawful misuse of an exemption to the Bill's protection because of the characteristic of 'Gender Reassignment' in the provision of a Single Sex Services.
  5. The unlawful inclusion of a Genuine Occupational Qualification that a Person not be a Transsexual Person.

We are also extremely concerned about the areas where the Bill attempts to undermine EU and ECHR caselaw, legislation and rights under the European Convention on Human Rights.

On the topic of whether the legislation should refer to 'Gender Reassignment' (as at present) or 'Gender Identity' (as PFC advocate) they say:

PFC welcomes believes the definition as suggested is unclear and will leave many members of the trans community unprotected.

First , it defines a protected characteristic by reference to a course of medical treatment and includes in that definition persons who do not undergo such treatment. Furthermore, we believe that "gender reassignment" is relevant to a protected characteristic, it is not however a protected characteristic itself.

Secondly, 'gender reassignment' may exclude certain transsexual persons who do not seek treatment. 'Changing sex' is not easy, as acknowledged by the European Court of Human Rights, and gender reassignment is a long and arduous road – which surely is not a pre-requisite to one's human rights.

Thirdly, we believe that it is equally counter-intuitive to define the state of mind of a trans persons in deciding whether they would fall within a protected class of persons (asking questions such as: "is the person "proposing" to undergo gender reassignment) rather than focusing on the basis or motivation for the discriminatory behaviour by those discriminating against the person, namely the person's perceived non-adherence to gender norms.

We believe that the term "gender identity" is more apt to providing protection for the groups of persons envisaged by the drafters as requiring protection including those enumerated in explanatory note 57.

Our position is supported by 98% of respondents to the survey who said they believe that protection should be granted to anyone discriminated against on the basis of their gender identity or expression.

This terminology whilst being more appropriate is also in line with international developments. It is also terminology adopted and used by the United Nations and the Council of Europe. , ,

The Scottish Parliament has also used 'transgender identity for 'the Offences (Aggravation by Prejudice) (Scotland) Bill 2009 which has a fully inclusive.

We are concerned with the use of the term 'gender reassignment' as the protecting characteristic in relation to young people, in particular in light of the fact that gender variance in children will remit for the majority of children by adolescence (80-95%) .

The term 'gender reassignment' would expect a young person to comment whether they 'intend to undergo gender reassignment' in the future. It is important to note that many pre-pubertal children will not have heard of, or understand, the possibility of gender reassignment. In addition, in the UK, children below the age of 16 cannot meet the UK clinic's gender reassignment criteria for undergoing gender reassignment or even establish that they wish to do so. Yet, young people considered "gender variant" by others need protection against bullying and victimisation.

Consequently, PFC believes the inclusion of "gender identity" as a defining characteristic in Vol 1, Part 2, Equality - key concepts, Chapter 1 - Protected characteristics, S.7 is essential to protect trans people and gender variant children and adolescents.

On the issue of harassment of children and adolescents they say:

The apparent permission in Vol 1 pt.6, Chapter 1, Section 80, ss.10 for a responsible body of a school to lawfully harass young people, allowing them to be subject to discriminatory behaviour that would violate their dignity, creating a hostile, degrading, humiliating, or offensive environment, because they possess the characteristic of 'Gender idendtity' (or sexual orientation or religion or belief).

This is at odds with the provision in Vol 1 Pt. 2, Chapter 2 , S. 24 Harassment.

Press for Change therefore recommends that the clause Vol 1, Part 6 – Education, Chapter 1 – Schools, S.80, s10 be struck from the face of the bill.

Finally, PFC also assert that the Government is proposing to flout European Union and European Court of Human Rights law in relation to single sex services and employment. They say:

Press for Change is very concerned by the exemption to protection for trans people in Vol II, Sch. 3 Part 6, Gender S. 25 (1) and in Vol. II ,Sch.9, pt. 1 General , ss. 3

Both of these sections fail to acknowledge that where a person has successfully applied for and been awarded a Gender Recognition Certificate (GRC) their gender becomes for all purposes the acquired gender."

And as there have been no problems of trans people applying for single sex jobs or using single sex services inappropriately since the introduction of the Employment Regulations (1999) and Sex Discrimination (Amendment of Legislation) Regulations (2009), it is clear the vast majority of businesses have adapted well to the use of their services by trans people. The provision is also, legally unsound.

PFC believes that the provisions contained in ss. 25 contravene articles 8 and 14 ECHR of those trans persons following the decisions of the European Court of Human Rights, in the cases of Goodwin, and I v United Kingdom (2002), as confirmed by Grant (2006) Furthermore in Bilka-Kaufhaus GmbH v Weber von Hartz (1987) ICR 110 the Court held that for any such justification in anti-discrimination law

"the objective of the (providers) measure must correspond to a real need."

There are also very good reasons for believing that the House of Lords and ECJ will continue to uphold in the question of access to goods and services or employment, the principles contained in the Equal Treatment Directive 2004/113 (ETD 113) will follow the principles of the ETD 76/207. i.e. that a person is recognised as a member of their new gender from the day they transition.

We believe that this has been reflected in practice. In practice, none of the GOQs introduced by the Sex Discrimination (Gender Reassignment) Regulations (1999) have proven to be relevant. There is little case law, and that which there is upheld the rights of the trans person to work in the employment. In A v Chief Constable of West Yorkshire Police [2004] HL. 21, E.W.C.A. Civ 1584, Baroness Hale held that following the decision of the ECJ in the case of KB v NHS Pensions Agency it is clear that

"for the purposes of discrimination (Equal Treatment Directive 1976/2007/EEC) , a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned".

This was later confirmed by the ECJ in the case of Sarah Margaret Richards v Secretary of State Pensions and the ECHR in the case of Grant v. United Kingdom [2007] 44 EHRR 1.

Furthermore barring a transsexual person from employment who is in possession of a Gender Recognition Certificate would be unlawful as persons with a GRC have to be treated "for all legal purposes" as a person of that sex. The Gender Recognition Act 2004 amended the SDA 1975 and removed GOQs from applying to persons who held a GRC.

We further believe that the principle can be extended to those trans people who are not living permanently in their preferred gender role.

Press for Change believes that these sections should be rewritten, to make it quite clear that protection already obtained is not to be removed. We would suggest that the protection is extended to :

(3) A person who has the characteristic and a Gender Recognition Certificate is exempt from the provisions contained in ...

(4) A person who has the characteristic and who is living permanently in their preferred gender role, whether or not they are intending to undergo, are undergoing, or have undergone gender reassignment is exempt from the provisions contained in ...

(5) a person who has the characteristic but where the related gender expression does not take place within the (single sex setting)/(workplace) is exempt from the provisions contained in ss.(1)

2 comments:

Robyn said...

It should be noted that whilst it is fair to comment on these issues, various groups and individuals were consulted on the submission from PfC. The reason for the request not to publish the submission is down to the risk of it being thrown out by the Committee, NOT because PfC do not want everyone to know what it contains. For specific information on this, please see the rules of submission by the Scrutiny Panel.

It is also worth noting that links to the on going discussion have been made public for some time now. I'd suggest that you take a look through our public forum. This includes the meeting on the 2nd June 2009, where Stephen Whittle presented oral evidence to the committee.

emma said...

Many thanks for posting this, Christine.

I am curious to understand the definition of the terme "gender reassgnment", as used by current legislation.

This is certainly the key to progress.