Seven Out of Ten - Must Try Harder

Christine Burns

Vice President, Press for Change



Issue 6
May 1999

If you are a trans person living and working in England or Wales then I urge you now to go and get your diary, take a thick red pen, and put a big circle around last Friday's date, the ninth of April, 1999. April the ninth was, you see, a historic date in this campaign. A date we are certain to refer back to, and which people will one day look back upon with somewhat mixed feelings. A dramatic first, in many ways. Yet .. to those of us who've been living with the ministerially imposed secrecy for months, something of a failure too.

The way you look at all of this now, and how you'll look back on it in the future may be two different things. Maybe that will apply to me too. Certainly, as the author of PFC's "Five Principles", I'm personally feeling a bit sick at the moment. I know that my close colleagues are handling a range of emotions as well, ranging from displaced anger to the quiet sadness and resignation that accompanies battle-hardened cynicism. Depending on how you view those principles of ours, and how what follows affects you personally, you may feel any or all of those emotions .. or none. You may look at it as the success which those of us, too close to the detail, cannot see. And if you can do that, then I'm truly happy for you.

It's time I told you anyway

On Friday 9th April, 1999 .. thirteen months after the consultation which so many of you contributed to in letters and analyses .. the Under Secretary of State for Equal Opportunities in the Department for Education and Employment, Margaret Hodge MP, laid the "Sex Discrimination (Gender Reassignment) Regulations 1999" before the clerks of the House of Commons, utilising powers vested in her by the European Communities Act 1972. The regulations, having been laid under a procedure known as "Negative Resolution" do not need to be debated unless a substantial majority of MP's agree a motion to do so. Otherwise, however, they will come into force forty days after their presentation. Hence, to all intents and purposes, you can be fairly sure that the amendments which the regulations apply to the Sex Discrimination Act, will come into force towards the end of May and that, thereafter, a whole catalogue of discrimination against trans people in employment will formally become illegal.

That, I guess, constitutes a historic event.

It will be the first time ever that trans people have been specifically identified for protection by UK Parliamentary legislation. The first time, indeed, that discrimination against trans people has been formally acknowledged by Parliament.

Yet, on the Monday before Easter, we sat in the minister's office with her and her officials, arguing from every angle that this legislation should not proceed .. not without significant modification, at the very least. As late as 2pm on the afternoon of Thursday 8th April, I was still urging that line by telephone to very senior civil servants. On the face of it, you may think it truly bizarre that an organisation which campaigns for the equality of trans people should be arguing to the very last minute for a piece of anti-discrimination legislation to be stopped. It was certainly ironic to be in that position. But then I knew why.

Still, before we look at that, I'll explain what's happened.

The legislation which has been "laid" this week takes the form of a so-called "Statutory Instrument", which ministers are empowered to introduce when it becomes necessary to alter the effect of existing so- called "Primary Legislation".

The 1975 Sex Discrination Act is an example of "Primary Legislation" .. a complete, self-contained Act of Parliament which has been introduced by the government of the day, debated several times in Parliament, picked over by committee, voted upon, referred to the House of Lords, debated and picked over some more, been kicked around like a football for a couple of years and finally given Royal Assent. Not surprisingly, the Commons time to introduce and debate legislation like this is quite scarce.

Yet the government needs to update Primary Legislation all the time. This is what happens every year after the budget, for instance, when it becomes necessary to change a whole set of Acts to give effect to policies put forward by the Chancellor of the Exchequer. Changes like this, which range from simple numerical or sentence changes through to whole sections, don't always necessarily require a complete Act of Parliament .. and that's where Statutory Instruments (or "Regulations") come in.

An Act usually defines the powers which the relevant minister has in order to introduce changes. Often, the powers are limited in terms of what the minister can do without debate and approval by the house. In some cases, however, the minister is allowed some discretion over whether to seek debate or not. The European Communities Act of 1972 also added new powers for various ministers, in order that they could amend our domestic legislation in order to bring it in line with Britain's commitments to the European Community. And that is what has happened in this case.

The Department for Education and Employment's passion for legislating arose because of the P vs S and Cornwall County Council case, in which the European Court of Justice ruled that discrimination by reason of gender reassignment should be regarded as "sex discrimination" under the Equal Treatment Directive.

The Equal Treatment Directive (ETD) is a fundamental piece of European Community law and every member state in the EC undertakes to enforce that common law as a result of signing the Treaty under which they joined the community. States achieve this conformance by bringing their own laws into line .. and in the UK the relevant domestic equivalent of the ETD is the Sex Discrimination Act (SDA).

Changes like this become necessary all the time, of course. Parliament would grind to a halt if it had to consider exactly how to change each piece of Primary Legislation to meet its' EC obligations. It would be a fairly pointless exercise too, because Parliament cannot lightly disregard European Law. The European Communities Act of 1972 gave ministers powers to just get on with the job, therefore, and to come to Parliament for debate only if there was a choice of interpretation arguably worth discussing.

It's also worth pointing out that Ministers don't have to legislate in order to meet their obligations. This is what Press for Change has argued for well over a year in the case of P vs S, since domestic courts have had no difficulty at all in interpreting the SDA to protect trans people. We have argued during that time that legislation was therefore superfluous and could only succeed in reducing people's rights. We still hold that view too, backed by the Equal Opportunities Commission and the views of several lawyers who've worked with us in the last few weeks. The Minister believes otherwise, however, and reiterated that view last Thursday in a letter to Dr Lynne Jones MP, chair of the Parliamentary Forum on Transsexualism, stating, "I take the view that it is better for elected representatives in Parliament to determine legislation than for this to be settled by the courts".

So let's now consider the effects of that legislation .. starting with the good news.

The first and clearest indication of the principal intent of this modification to the SDA comes on the first page of the new regulations :

"A person ('A') discriminates against another person ('B') ..[in employment or in vocational training] .. if he treats B less favourably than he treats or would treat other persons, and does so on the ground that B intends to undergo, is undergoing or has undergone gender reassignment."

The regulations then go on to add clauses which spell out a duty for employers to treat absence for gender reassignment treatment in the same way as sickness leave and to define "gender reassignment" itself as :

".. a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process;".

In other words, the definition is a very wide one and does not require any one treatment in particular in order to qualify you for cover. It also covers you from the moment your intentions are made known to people, through the process of transition and beyond the completion of treatment. Most importantly from the point of view of inclusiveness, so long as you are taking hormones (and you get them via an official route) then the law also embraces the needs of people who don't (for whatever reason) intend to undergo surgery too .. up to a point.

Compared to the complicated and prescriptive definitions being bandied around last year, it is a very significant advance .. and is evidence of how far the politicians and officials have advanced in their learning. And it is all due to your efforts last year too. Well done !

The regulations next go on to tidy up legal loose ends over pay discrimination (so that you're covered for that too) and then move on to what are known as "Genuine Occupational Qualifications" .. or GOQ's for short.

The Sex Discrimination Act has a number of GOQ's already. These are clauses which spell out circumstances in which it is, for instance, deemed acceptable to discriminate by choosing a man or a woman for a particular job.

Again, in principle, the new regulations address these existing GOQ's for trans people in a straightforward fashion, by stating quite simply that

"no account shall be taken of a case where a man or a woman is undergoing or has undergone gender reassignment"

In other words, once you have begun treatment then you are to be treated as the sex you now present as being. Otherwise, the regulations make it plain that the onus will be upon the employer to show that they acted reasonably in the circumstances.

So far so good .. although we really must stress that this is what you have already. It's nice perhaps for the government to spell it out in writing, but the overwhelming evidence of the last three years of applying P vs S in Employment Tribunals has been that the Sex Discrimination Act was quite capable of being interpreted this way in any case. With the most recent example of the West Yorkshire Police case, it is even clear that conflicts caused by the legal sex status of a trans person need not be a issue.

Having dispensed with the good news, the remaining two pages of the regulations are not so good though .. and especially if you DO work for the Police Force or other agencies with statutory powers to conduct intimate physical searches on members of the public.

One of two main reasons why we have so hotly contested the regulations over the last few weeks has been that they ADD a number of new and special GOQ's which apply ONLY to trans people (though, in fairness, sometimes only during transition).

The first of these "Special Genuine Occupational Qualifications" specifically rules that discrimination protection does NOT apply when a job involves you being liable to be called upon to perform intimate physical searches pursuant to statutory powers. (This applies whether you have completed treatment or not).

In other words, the regulations do not compel a Police Force to take you on if they can successfully argue against the decision in A vs West Yorks Police that to employ you in such a role would lead to contravention of the Police and Criminal Evidence Act (1984) or a claim for indecent assault.

Sadly, the Minister and her officials resolutely refused to drop this clause even though the decision in A vs West Yorks demonstrated that so-called "proportionality" had to be taken into account in assessing the reasonableness of claims that such a risk would occur. In that case the applicant's lawyers showed that only nine intimate searches were conduced by women police officers in the whole of the UK during the previous year (the vast majority being performed by medical professionals). To put that in context, there are over 20,000 women police officers. The tribunal therefore concluded that it was not reasonable to bar a trans person from a police career on the remote possibility that they might be one day placed in that position.

How you view this Special GOQ .. and the government's insistence upon it .. will therefore depend on whether you are considering becoming a police or customs officer or transitioning as one .. or whether you particularly care about others in that position. If you happen to be the "A" in the West Yorks case, you can feel even more strongly, with some justification of course.

The second Special GOQ provides a similar exclusion in respect of any job in which you might be called upon to live or do your work in someone's private home in circumstances where the householder might reasonably object to the level of physical or social contact you are likely to have with them, or the degree to which you will consequently become privy to intimate details of their life. Again this applies regardless of the state of your treatment.

In principle this is actually a rather pointless clause, because the circumstances are covered already by the SDA. The insistence upon having a specific GOQ like this for trans people merely seems to reflect paranoia therefore. Worse, however, the clause invites uncertainty .. because it is written on the basis of someone judging what is and isn't a reasonable objection. In most caring professions the circumstance should never arise in which a carer is inflicted upon a householder against their wishes. You can' t force somebody to like you .. so you probably wouldn't wish to work in such circumstances. Where the risk of abuse arises, however, will be in circumstances where an agent placing trans people in such settings might try to argue (in the face of the proportionality principle) that they shouldn't be employed because such a circumstance might arise.

Again, how you view this clause will depend upon your own circumstances .. and how you view our commitment to upholding the rights of all trans people, regardless of looks.

The third special GOQ applies only to people intending to undergo or in the process of undergoing Gender Reassignment, where "reasonable objection" could be taken to them sharing accommodation and facilities, on the grounds of preserving decency and privacy. Quite specifically, however, this applies to "live-in" jobs and the employer has to be able to show that it is not reasonable to equip the premises with suitable accommodation for the trans person or make alternative arrangements. Principally, therefore, this clause appears to be aimed at the armed forces.

The problem with this exception is that the regulations never define the "end" point for gender reassignment. We offered a simple definition, but it was declined. The result is that, for trans men in particular, it may never be possible for some individuals to assert that their treatment is finished, and that they should therefore be protected from discrimination on this basis.

The fourth special GOQ again applies only to people intending to undergo or in the process of undergoing Gender Reassignment, and concerns trans people involved in the provision of personal services to "vulnerable people".

This is perhaps the most dangerous clause of all so long as "vulnerable" is not properly defined. Again, we offered a clear and concise definition, limiting the use to cases where an individual is under medical care and the person treating them specifically judges that they would at that time be disturbed by transitioning person being involved with their care. Likewise, however, the opportunity to make this clear in the regulations was declined repeatedly.

Now you may understand better why we say that it is dangerous to legislate when you don't have to .. for the whole of our discussions with the DfEE about this legislation, which is now as good as law, concerned statements which provide specific means to discriminate against trans people .. not to protect them. Pretty ironic for an Equal Opportunities department implementing "anti-discrimination" legislation.

For this reason too, we believe that elements of the Minister's legislation may be judged to exceed her powers and/or contravene the Equal Treatment Directive, as clarified by the P vs S case. These are still early days in which to predict or disclose a response from us though.

For now, however, this is the new world in which you, as British trans people, will live .. and the best deal we could get you for now.

This is perhaps a good point at which to say sorry for the necessary secrecy too. Not our choice, but a ministerial precondition of being consulted on the details at all before the legislation was printed and officially laid down. If you think that some of us have been unusually quiet over the last few months then now you know why though .. and even now the full story will still have to wait for another day.

Press for Change is still working with the government to try and influence the set of guidelines which will be officially published to accompany the regulations when they come into force. The guidelines will not have any legal force, but are an opportunity for the government to indicate the spirit in which it intends the legislation to be applied. To the DfEE's credit, too, it must be said that the first draft of these already tries hard to convey the general principal that discrimination against trans people will be permitted only in exceptional circumstances. Our differences are fundamentally those of a technical nature, in which our lawyers disagree with the government's as to whether that good intent will be achieved by what they've drafted.

We have come a VERY long way in the last twelve months though .. and hopefully the responsible and ethical way in which PFC has approached the confidential discussions over the last few weeks will lead to further and more fruitful cooperation on other trans-issues in the future too.

Unfortunately, as with this exercise however, we'll only be able to tell you how we've succeeded after the event. All we can perhaps hint is that the signs are that the government is very committed to resolving the "transsexual question". How well it does this will depend on how well we continue to build their understanding of trans people as people, and how well we manage to get them to challenge their own presumptions about where we come from and why there should be any differences or exceptions to how we should be treated in comparison to others.

The frightening prospect for those of us with the responsibility to do that negotiation and training is that we should fail to get our message across well-enough.

As negotiators on your behalf, our commitment to you is repeated regularly on this news list and across PFC's web site, in the form of our "Mission Statement" and "Five Principles". We set out to obtain the very best result for ALL trans people, in all their diversity as we know it. For this we have been regularly critiscised in the past and by those standards we always fully expect to fail to an extent .. just as I feel we have done this week.

It is only by aiming high that we can achieve the very best that we can get though. And it is only by continuing to aim that high that we remind ourselves of how much there is still left to do .. what we need to do now, for instance, to annihilate the special discriminatory exceptions which we are about to be written into British employment law.

So, some of you may well be wondering what all the fuss is about. If you feel better off since Friday than you felt beforehand then you may be inclined to award us ten out of ten for effort and achievement. For ourselves, and for those of you unfortunate enough to be poorly served by this legislation a seven might be more appropriate .. perhaps even a six.

We know already, however, that come Monday morning we start again .. and the words MUST TRY HARDER will be ringing in our minds.

I'm only sorry that we didn't achieve more this time round.

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