Gender Reassignment and Equality Act 2010 – Part 1 – Protected Characteristics

The Equality ACT 2010 received royal assent in April 2010 – the same day that Gordon Brown called a general election – so its passing was barely mentioned and almost completely unnoticed. This act had been one of the main flagship pieces of legislation for the Labour administration and had taken 13 years to bring into effect.

Of course we all know that Labour lost that election and this meant that the actual implementation of the act was handed over to a coalition of opposing political parties who both, for different reasons, did not fully support it. As a result there really has not been much political weight placed behind it and from my experience over the past 3 years as an equalities trainer, most people have never grasped how fundamentally this legislation has changed equalities law.

Before this act, equalities law was frankly a mess. Laws essentially were in place to support minority or vulnerable groups and that was how most people saw the law, especially the media. More importantly different groups had different rights with some receiving special consideration and others none.

Prior to 2006, we had sex discrimination law, race discrimination law and disability discrimination law with each of these strands administered by separate commissions. Other areas of discrimination were addressed piecemeal with new laws but with no commissions. So if you were a black, disabled, lesbian and someone discriminated against you trying to get redress was a nightmare.

The Equality Act 2006 created a single Equality and Human Rights Commission (EHRC) and then the Equality Act 2010 repealed 114 separate pieces of primary and secondary legislation, and in the process essentially removed the idea of minority groups by introducing nine Protected Characteristics.

  • Age
  • Disability
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation
  • Gender reassignment

What makes this different is that we all have most protected characteristics.

For example we all have age. OK some of us have a little more than others, but the law means that essentially no one can discriminate against you on the grounds of your age.

There are exceptions – no sex under 16, no drinking or voting under 18, retirement at 65… OK we can’t afford that – make it 67… Actually this is a goalpost that is going to keep on moving – but it is going to be the same age for everyone wherever it ends up.

The protected characteristic of Religion is not just about protecting your right to your religious beliefs – it also means that no religion can impose its beliefs on other people. It also protects my right to not have a religion if I so wish. So everyone is protected.

But what if you hold a religious belief that it is wrong to have a same sex relationship or undergo gender reassignment?

Well the law allows a religious body to hold that belief as far as involvement in the practice of the religion is concerned but only where adherence to the religious belief is essential. So a church can exclude trans and gay people from membership or ministry in their church but if, for example, they were recruiting an accounts clerk then they cannot discriminate.

Someone offering a business service exclusively to members of their faith could refuse to provide service to a trans or gay person but not if that service was open to everyone.

The protected characteristic of Gender Reassignment is bit messy. This protected characteristic should have been Gender Identity – we all have a gender identity. Gender reassignment is a process and previously the definition included anyone who was planning to undergo, was undergoing or had undergone a “medically supervised” process of gender reassignment.

The government wanted to avoid providing protection in law to anyone who was a “transvestite”, by their definition someone who cross dresses for fetishistic purposes. The definition was changed from “medically supervised” process to a “personal” process and whilst the Government Equalities office stated that transvestites were not covered by this definition, The EHRC did not agree.

It is only necessary for someone to have started the process of gender reassignment. Anyone who has consulted a GP or counsellor about their gender confusion or started to cross dress as a way of dealing with their gender identity issue would almost certainly be protected in law. And in practice how would you know if someone who appeared to have changed gender was just cross dressing for the day or living in a new gender permanently?

However in practice the arguments over definitions of protected characteristic hardly matter because, as we will see in part 2 of this series, other changes mean that even someone dressed up for a night and anyone accompanying them would now be fully protected by this law.

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Rikki Arundel

Author: admin

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