Michael Foran: Getting the Equality Act Right
Gwyneth King recently published an opinion piece claiming to set out some facts about the Equality Act as it relates to gender recognition reform. Almost everything she wrote is wrong, writes Dr Michael Foran.
The first fact
King argues that the default position in the Equality Act is that treating a trans woman as a man amounts to unlawful discrimination. The Equality Act does not make any reference to “trans women” or “trans men”. In the Act there are only “transsexuals”, who are those protected under the characteristic of gender reassignment. What we would call a trans woman is, in law, a man who identifies as a woman. There is no default position that treating such a person “as a man” is unlawful discrimination. Indeed, there is no general conception of what it is to treat someone “as a man” or “as a woman”; the law’s default expectation is equal treatment of men and women.
The presumption in King’s article is that the comparator for a trans woman is a woman without gender reassignment as a protected characteristic. This will not be true for the vast majority of claimants, and will be true for some only if the judgment in For Women Scotland v The Scottish Ministers is not overturned on appeal.
Without a gender recognition certificate (GRC), a trans woman is legally and biologically male, and the comparator, as was the case in Green v Secretary of State for Justice, is a man without the gender reassignment characteristic. The comparator cannot simply be, as King argues, a generic “someone” who isn’t trans. The comparator must be someone who is similar in all relevant respects except for the protected characteristic in question. So if the trans woman does not have a GRC, and is therefore legally male, the comparator is a man. With a GRC, the comparator will be a woman. Sex matters when analysing gender reassignment discrimination.
It is therefore false to claim that there is a presumption within the Equality Act that it is unlawful discrimination to treat a trans woman as a man. Firstly, it will matter whether or not the trans woman in question is legally a man for the purposes of the Equality Act. Secondly, even a trans woman who is legally a woman may still be treated as a man in certain circumstances. In others, treatment as a man may be legally mandated. Being protected under gender reassignment does not change your sex for the purposes of the Equality Act.
The second fact
The exceptions set out in the Equality Act apply to single-sex services, not “safe spaces”. The reasons for setting up those single-sex services are set out in the Act and are manifestly not confined to concerns over safety. Other rights and issues are in play, including privacy, dignity, and religious freedom, which permit the establishment of separate-sex services.
Framing this entirely as about safety allows King to stress that trans women don’t pose a threat to women. But even if it were certain that trans women do not retain male patterns of criminality when they self-declare into womanhood – a bold assumption given the events of recent weeks – that would not address the other reasons why a single-sex service might be needed. In some cases it might be unlawful indirect discrimination not to set up a single-sex service. There is ongoing litigation raising this very point in relation to a rape crisis service refusing to cater to the needs of certain women who can’t share such services with males.
The third fact
This relates to the exceptions in the Equality Act that permit prisons to exclude biological males from female prisons. King seems to assume that the default legal position is that a biological male with the gender reassignment protected characteristic will be housed in the female estate. That may have been the policy of the Scottish Prison Service for some years now, but it is not a default legal entitlement.
The proportionality test for exclusion remains broadly the same regardless of whether the biological male is legally male or female. Because the comparator changes, the kind of discrimination that exclusion amounts to also changes: from gender reassignment discrimination to sex discrimination, or vice versa. The justification remains a proportionality test for both. But whether exclusion will be proportionate will certainly involve accounting for all of the relevant facts, and the legal sex of the claimant will matter here.
For a double rapist, it will almost always be proportionate to exclude from the female estate. For a criminal who has been convicted of a more minor crime, it is by no means certain that the exceptions will permit exclusion if that person has a GRC stating they are a woman. But inclusion may still give rise to human rights concerns from the female inmates given privacy and dignity concerns, which exist quite apart from safety issues. It is a breach of the Geneva Convention to fail to provide sex-separated accommodation to prisoners of war. We might want to think about whether that is acceptable for domestic Scottish prisoners.
The fourth fact
King claims that there is no distinction within the Equality Act between trans people with or without GRCs. In one sense this is true; in another it is manifestly false.
King is right that the protected characteristic of gender reassignment will protect any trans person, whether they have a GRC or not. But that does not mean that the Equality Act somehow doesn’t account for one’s legal sex when assessing the relevant comparator for a direct discrimination case. We know from Green that the correct comparator for a trans woman without a GRC is a man without the gender reassignment characteristic. If For Women Scotland is correct, that will change if the trans woman has a GRC. The comparator would then be a woman without the gender reassignment characteristic. This would mean that the Equality Act does draw a distinction between those with GRCs and those without them, classing those without a GRC as their biological sex and classing those with a GRC as their legal sex.
The fifth fact
I have written elsewhere on how the Gender Recognition Reform (Scotland) Bill would alter the operation of the Equality Act. This is not simply because of an increase in the number of people who would have access to certificates that change their legal sex for the purposes of the Equality Act. It is also because the character and scope of the cohort able to get these certificates would widen dramatically. Currently, you need a medical diagnosis and sufficient evidence of two years living in the acquired gender to convince a panel that your decision was not taken lightly and that you are a genuine case. The Scottish bill removes all third-party verification and opens these certificates to anyone who wants one, including children as young as sixteen. The possibility of fraud is not negligible and the impact upon the Equality Act is obvious.
Dr Michael Foran is a lecturer in public law at Glasgow University