Equality and Human Rights Commission – Seán Crossan's Scots Law

Unequal pay? A thing of the past?

Photo from HiddenHerStories Blog and Podcast

By Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams (Editor: SJ Crossan)

To put it simply equal pay is when both men and women who perform equal work get paid equally. This is set out in the Equality Act 2010 which we will discuss later in this post. If you are an employer, it is extremely important to take note of this. It does not only apply to salary. But it takes into consideration all terms and conditions in their contract such as holiday entitlement, bonuses, pay and rewards schemes, pension and any other benefits your company may offer (Equality and Human Rights Commission, 2019).

Now we would think that in this day and age both men and women would be getting paid equally, unbelievably, in 2019 the data from Britain’s largest companies should that men are still mostly getting paid a lot more than women. Even with the amount of campaigns that women’s groups are bringing forward, the startling figures show that 78% of Britain’s biggest companies have a pay gap favouring men (Petter, 2020).

The Beginning of Equal Pay

Shockingly, this has been a problem for over 40 years. Prior to 1970, women in the UK, especially in the private sector, were on different and lower rates of pay, no matter what their skill levels were (Wage Indicator, 2020).

In 1968, women who were sewing machinists at Ford’s Dagenham Factory went on strike as they argued that their work demanded the same amount of skill and effort as work carried out by Eastman cutters and paint spray operators, even though their job had been graded higher. This strike sparked a movement and before we knew it, we had many other equal pay strikes throughout Britain. This led to the formation of the National Joint Action Campaign Committee for Women’s Equal Rights (NJACCWER) who then went on to organise a big equal pay demonstration in May 1969.

The Ford Dagenham Factory strike also motivated the Women’s Liberation Movement to take more action. They continued to fight for equal pay of equal value and also and sexual discrimination both in the workplace and at home. One of their main slogans was simple but effective “Equal Pay for Equal Work”. Two of their other demands included equal education and training as well as free 24-hour childcare. This was being fought for to allow women to be financially independent from their father, husbands and other males.

Barbara Castle MP, who was UK Employment Secretary of State at the time and eager to address the obvious unhappiness and distress caused by the issue, promoted the Equal Pay Act 1970. This allowed equal pay claims to be made by women who were working in the private and public sector. This act will be discussed further in this article. When this legislation was brought out, it really highlighted the problems in the workplace to do with equal pay and women (Wage Indicator, 2020).

It was said that women should be paid less for two reasons, first, because their work was less skilled than men’s and in return should be paid less and second, because a woman’s wage does need to support other dependents. We can see how these assumptions would make anyone unhappy within the workplace. Many women have to support other people besides themselves such as children, parents etc.

Legislation

The first legislation which directly addressed equal pay was the Equal Pay Act 1970. This act was passed in 1970 but later came into force in 1975, and was introduced to “prevent discrimination, as regards terms and conditions of employment, between men and women” (Equal Pay Act 1970). This legislation arose after a series of high-profile strikes took place. These strikes were crucial in highlighting the inequalities in pay between men and women. (NEU, 2019)

The Equal Pay Act 1970 along with many other acts such as the Sex Discrimination Act 1975 was replaced by an umbrella act in 2010 called the Equality Act. The Equality Act 2010 set to update and simplify previous legislation.

The Equality Act 2010 and the Equal Pay Statutory Code of Practise both include the equality of terms provisions, which states that employees/individuals have a legal right to equal pay, for equal work, as compared to employees of the opposite/same sex. Additionally, pay is not limited to just contractual pay, as it includes any element of a pay package and/or any employment benefits. Pay, for example, would cover bonuses, company cars, hours of work, overtime rates etc.

The Act further states that an individual/employee can bring forward a claim for equal pay if that individual meets the criteria of equal work in comparison to a comparator. Moreover, a comparator can be further defined as an individual who is/was employed by the same employer (or associated employer) at the same work environment or at an environment where there is identical terms and conditions. (The Law Society, 2015)

The Equality Act further defines equal work and separates it into three categories; like work, work rated as equivalent and work of equal value. Determining like work involves two stages, of which the first is to determine whether the comparator is employed in work of a similar nature with consideration to the skills/effort/knowledge required to carry out the work.

Like work

Once like work is established then the next stage is to assess whether any existing differences are not of any practical importance i.e. are differences, of crucial importance in the performance of the job regardless of job description. Additionally, at this stage particular attention is paid to the frequency of occurring differences and to the nature/extent of any differences. Employers responding to a claim must then sufficiently demonstrate that crucial differences of practical importance exist, justifying difference in pay.

Work rated equivalent

Work rated as equivalent is when work is evaluated in terms of how demanding it is and is determined under a job evaluation scheme, which ultimately makes a decision based on multiple parameters such as skill and responsibility, with a stronger focus on the demands related to work. A job evaluation scheme analytically assesses the relative value of a job and typically utilises a scoring-based system to determine equal work. These schemes must be fair, non-discriminatory and not influenced by any stereotyping. ACAS provides free information on how to design and implement a job evaluation scheme.

Work of equal value

The final and third way of determining equal work, is by determining if the comparators work is of equal value, with specific reference to the demands of work made on that individual, such as the physical/emotional effort involved in work. Furthermore, work may not be particularly similar however it may be of equal value as the demands of such work is equal. This category is similar to the category of work rated as equivalent, however work rated as equivalent takes an analytical approach whereas determining equal value is centred around a more methodical and logical approach where often an industry expert is needed to clarify whether effort, skills, decision-making etc are of equal value. (Equality and Human Rights Commission, 2019)

Key Industrial Actions

It is also important to note, that any or all three stage of equal work can be used as comparison methods when bringing forward a claim. Additionally, when a claim is brought forward to an employment tribunal, the tribunal will determine the case based on its own facts so a decision for equal work in another case might not be relevant. Furthermore, an equal pay claim must be brought forth either when the individual is at the work whereby there is unequal pay or six months after leaving that position. However, if the time limit is exceeded it may be possible for the claim to be heard in ordinary courts such as the high court. Also, before launching a claim to the employment tribunal, employee/individual must before seek advice from ACAS and complete the ACAS Early Conciliation notification form before commencing. (Equal Pay Portal, 2020)

As we know, in 1970, the Equal Pay Act was passed, forbidding unequal pay and working conditions between men and women. However, the Act did not actually come into place until 1975. As previously mentioned, the need for this type of legislation was given huge impetus by the women’s industrial action at the Ford-car manufacturing plants in 1968 and also by legislation introduced by Barbara Castle in 1970. Further important industrial actions were conducted in the 1970s and 80s in which both men and women fought for their workers’ rights regardless of gender, ethnicity and class.

The Night Cleaners Campaign (1972-1975)

Three important campaigns/strikes that helped allow the Equal Pay Act to come into force were the Night Cleaners Campaign, the Grunwick Film-Processing Laboratories strike and the Miners’ strike.

During the early 1970s, and prior to this, many women across Britain were working late night shifts cleaning offices. These women were some of the most badly paid and were often taken

advantage of in the workforce. Contract cleaning was introduced, and the situation worsened – companies began to compete against each other over price which resulted in costs being cut and lower wages for the women. May Hobbs was a cleaner who had to experience this discrimination and played a key role in in initiating the struggle for better pay and conditions. She also allowed for union recognition to increase in which more protection was granted for women working in this industry.

Grunwick Film-Processing Laboratories strike, Willesden (1976–1978)

This particular strike was in regard to Asian women working as film processers in Grunwick laboratories, the unfairness they were facing in this particular industry. In 1976 Jayaben Desai resigned from her job and instigated a strike along with other working-class Asian women. The protest was in regard to pay inequality, unreasonable overtime arrangements and even racist company practices. She led this strike for two years and within this period there were many violent affairs between the protesters and the police. Desai went to the extreme measures of going on a hunger strike outside the Trades Union Congress which resulted in her union membership being suspended. The Grunwick strike was key in raising the profile of Asian women living and working in the UK. Its highlighted class and ethnic divisions in the workforce. Jayaben Desai showed passion and desire in her protests which increased the recognition of how important women’s work is in terms of industrial organisation.

The Miners’ Strike (1984-1985)

In the 1980s, the mining industry was key for thousands of workers across Britain who worked in this field. In 1984 miners went on strike in protest against the planned closure of numerous mining pits and the lack of discussion about this from the government. This would result in hundreds of lost jobs, taking a big hit at the income of many families across the UK. Women became involved in this by forming groups among the families of these miners and adding vital support to the strike. Women Against Pit Closures (WAPC) was formed, essentially putting feminist ideologies into practice – the male dominated industrial dispute allowed for women to empower themselves and take a public role in campaigning against it. Communal feedings of families in April and May 1984 allowed for the group to grow even further as it began to take on a more explicitly political role. During the strike, numerous local support groups were organised which arranged demonstrations, influenced MPs, addressed public meetings and shone exposure onto the poor conditions of miners to the wider public.

Recent Stories Regarding Equal Pay

As mentioned previously, equal pay is the right for both men and women to be paid the same when doing the same or equivalent, work. Equal pay has been an aspect of UK sex discrimination law since the Equal Pay Act 1970 and now the Equality Act 2010, as well as EU primary and secondary legislation. Although equal pay has been the law for 50 years a significant difference in pay between male and female employees still exists in today’s world of work (CIPD, 2019).

The Equality Act 2010 incorporates an equality clause into employment contracts which means that employers have a duty to ensure that men and women are paid equally for carrying out the same work or work of equal value (Crossan, 2020). In November 2018, a survey by Young Women’s Trust (YWT) found unequal pay is widespread with 20 per cent of women reporting being paid less than male colleagues for the same or similar work (Gallagher, 2019).

In today’s world of work there are various women standing up for themselves to fight for the equal pay that they legally deserve. However, according to the Young Women’s Trust more than 50% of women said they would not feel confident enough to challenge their employer even if they knew they were wrongfully being paid less than a male colleague (Gallagher, 2019).

In order to fight for equal pay people all over the world dedicate one day a year to raise awareness of the gender pay inequality. Equal Pay Day is the point in the calendar at which the average man has earned the amount the average women will over the course of the year. Data from the Office for National Statistics (ONS) shows women’s total earnings were 17.3 per cent lower than those of men in 2019, down from 26.9 per cent in 1999 (CIPD, 2019).

Kay Collins

A recent equal pay case involved Kay Collins a former head chef for employer Compass Group UK & Ireland discovering she was being paid around £6,000 less than one of her male colleagues who was less experienced, less qualified and had a far less senior title. Collins was shocked by this news as she had more than 10 years’ experience than her male colleague so asked her employer to confirm this and after the employer confirmed this was the truth Collins gave her employer the chance to resolve the issue internally. However, they did not comply so she took it upon herself to raise an official grievance which could take up to three years to carry out and would see her lose her job in the process. The employment tribunal found that in most respects Ms Collins’ work and her male colleague’s contained differences of ‘no practical importance’ and most of their responsibilities were ‘substantially the same’ and that Ms Collins ‘appeared to shoulder greater responsibility’ than one of her male comparators in some respects. Therefore, Collins won her claim against Compass Group on the majority of the grounds upon which the employer had consistently said that Ms Collins did not do ‘like work’ to that of her male colleagues. Indeed, Compass Group’s own witnesses accepted that their own evidence on a number of these grounds was inaccurate (Gallagher, 2019).

Carrie Gracie and the BBC

Another recent equal pay case involved the BBC’s former China editor Carrie Gracie who resigned from her post after discovering a male in a comparative role to hers was being paid far more. The BBC admitted Gracie had been told she would be paid in line with the north America editor, Jon Sopel, whose salary is in the £200,000-£250,000 range, but after she accepted the role her pay turned out to be £135,000. Jeremy Bowen, the BBC’s Middle East editor, is paid between £150,000 and £199,999. Gracie won her claim about gender pay inequality, received an apology and a pay-out from the corporation, which she decided to donate to a charity that campaigns for gender equality (Sweney, 2018).

Conclusion

So, it can be said that even after all these years, equal pay problems are still here and it doesn’t seem to be going away anytime soon regardless of all the work women are doing and no matter how many cases they win. We can only hope that one day, we will live in a world where men and women will be paid equally for equal work.

Bibliography

CIPD, 2019, Equal pay, Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/equal-pay/factsheet [Last Accessed 27/04/20]

Crossan, S, 2019, 2020: same old sexism (yes, equal pay again), Available at: https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/ [Last Accessed 27/04/20]

Equal Pay Portal, 2020. Bringing a claim. [Online] Available at: https://www.equalpayportal.co.uk/for-workers/ [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is equal work?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-work [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is Equal Pay?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-pay#h1

Gallagher, S, 2019, Meet the women who took on unequal pay in their workplace, Available at: https://www.independent.co.uk/life-style/equal-pay-day-women-dealing-with-unequal-pay-a9201481.html [Last Accessed 27/04/20] [Accessed April 2020].

NEU, 2019. Equal pay and The Equal Pay Act 1970. [Online] Available at: https://neu.org.uk/advice/equal-pay-and-equal-pay-act-1970 [Accessed 27 April 2020].

Petter, O., 2020. WHAT IS THE GENDER PAY GAP AND HOW IS IT DIFFERENT FROM EQUAL PAY?. [Online] Available at: https://www.independent.co.uk/life-style/women/gender-pay-gap-equal-pay-women-paid-less-motherhood-a8856121.html [Accessed April 2020].

Sweney, M, 2018, BBC reaches equal pay deal with former China editor Carrie Gracie, Available at: https://www.theguardian.com/media/2018/jun/29/bbc-reach-equal-pay-deal-with-former-china-editor-carrie-gracie [Last Accessed 27/04/20]

The Law Society, 2015. Equal pay. [Online] Available at: https://www.lawsociety.org.uk/support-services/advice/practice-notes/equal-pay/#ep511 [Accessed 28 April 2020].

Wage Indicator, 2020. A brief history of equal pay. [Online] Available at: https://wageindicator.co.uk/what-she-earns/equal-pay-history [Accessed April 2020].

Copyright Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams, 28 April 2020

Bad hair day

It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.

It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)

Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.

In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see Mandla v Dowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.

Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?

The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.

Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.

Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.

Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?

It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.080220/data/9323781/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

Copyright Seán J Crossan, 9 February 2020

Gender neutral?

Photo by Michael Prewett on Unsplash

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004. It remains unclear, however, when exactly the Government will introduce the draft legislation. Shirley-Anne Sommerville MSP, the Government Minister with responsibility for this issue has publicly admitted that there is still a need to build a “maximum consensus” before things become clearer.

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

Gender reassignment (or even gender identity) seems to have become a particularly fraught issue recently as a number of diverse media articles demonstrates:

Father Ted co-creator Graham Linehan warned by police over ‘transphobia’ Twitter row

http://news.sky.com/story/father-ted-co-creator-graham-linehan-warned-by-police-over-transphobia-twitter-row-11520340

Transgender prison inmate who sexually assaulted women jailed for life

http://news.sky.com/story/transgender-prison-inmate-who-sexually-assaulted-women-jailed-for-life-11523584

First UK transgender prison unit to open

https://www.bbc.co.uk/news/uk-47434730

Sam Smith comes out as non-binary: ‘I’m not male or female’

http://www.bbc.co.uk/news/newsbeat-47612616

My passport gender should be non-binary

https://www.bbc.co.uk/news/uk-england-london-48126998

Retired naval chief criticises gender neutral ships

https://www.bbc.co.uk/news/uk-scotland-48037933

Jacqueline Wilson: Gender reassignment for children makes me very worried’

https://edition.independent.co.uk/editions/uk.co.independent.issue.240419/data/8882366/index.html

Munroe Bergdorf: NSPCC cuts ties with transgender activist

https://www.bbc.co.uk/news/uk-48572955

‘Race science’ is rearing its ugly head – again and black women are the target

https://www.independent.co.uk/voices/caster-semenya-race-science-guinea-pig-saartjie-baartman-a8971081.html

Political controversy

In 2018, the Labour Party became embroiled in difficulties concerning the issue of whether trans women should be included in all female short lists for the selection of parliamentary candidates. Senior members of the Party – Jeremy Corbyn, Dawn Butler, Harriet Harman and Angela Rayner are supportive of this initiative.

The Standing for Women Campaign ran a (fiercely debated) poster ad during the Labour Party’s Conference in Liverpool focusing on the definition of a woman. This poster caused something of a storm and was later removed by the billboard company amid accusations of hate speech and discrimination against transgender people:

This image has an empty alt attribute; its file name is women_poster-1.png

Kellie-Jay Keen-Minshull, one of the activists behind the poster was quoted in The Spectator (11 September 2018) saying:

‘I was a supporter of the Labour Party for years, but I can’t now in all good conscience support a political party that is hellbent on destroying women’s rights. But this is wider than just the Labour party. The word ‘woman’ matters. It means adult human female. If we expand that definition to say that ‘woman’ includes men who claim to feel like women, so as not to hurt their feelings, the word will become meaningless. As will the rights that generations of women before us fought for.’

Gender Identity Research & Education Society

Sporting controversies

It’s not merely the world of politics which witnessed passionate debates about gender reassignment. The sporting world has also seen some fierce clashes between female and transgender athletes. Former Olympic medalists, Kelly Holmes and Sharron Davies; and former Marathon champion, Paula Radcliffe have all expressed caution about permitting trans-women athletes to compete in women’s sporting events. Martina Navratilova, the former Tennis champion was even accused of being a “transphobe” when she suggested that the inclusion of trans-women in sporting events could be viewed as tantamount to “cheating”.

Furthermore, the ongoing scrutiny concerning the gender of the South African athlete, Caster Semenya continues to divide many people in the sporting world.

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment.

This now means that the decision by the House of Lords in Chief Constable of West Yorkshire Police v A (2004) which held that the police force could rightfully refuse to employ an individual who had undergone a sex change as a constable has been reversed. Such treatment would now be regarded as an example of unlawful discrimination.

That said, in addition to UK anti-discrimination and equality laws, the Court of Justice of the European Union (as long ago as the case of P v S & Cornwall County Council (1996))held that discriminatory treatment of people having undergone gender reassignment was a breach of the Equal Treatment Directive. The individual in question had been dismissed from employment because she undergone a gender reassignment operation.

In Richards v Secretary of State for Work and Pensions (2006) the Court of Justice of the European Union ruled that a person (Richards) who was born male and then underwent gender reassignment to become female was entitled to claim a pension that would have been payable to a woman at age 60.

The individual in question had suffered less favourable treatment and the UK Government’s insistence that it would only begin to pay a pension to the individual in question from her 65th birthday onwards was an example of discriminatory treatment. In other words, the pensions authority was continuing to treat Richards as a man and was not taking into account the fact that gender reassignment had taken place.

In any event, the Richards case (above) is really of historical interest as the legal situation has greatly improved for any person having undergone gender reassignment. Such a person will now be issued with an official gender recognition certificate (see below) which means that they will be entitled to receive a pension from the date that such a certificate was issued.

The Court of Justice of the European Union has long held that discriminatory treatment of people having undergone gender reassignment is a breach of the Equal Treatment Directive.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill is controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

What would be required of the individual in question under the proposed legislation are the following:

A statutory declaration to the effect that they have decided to change gender or sex;
The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

The Equality Act 2010

Section 7 of the Equality Act 2010 addresses the issue of a person who has undergone gender reassignment in the following terms:

(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

As we shall see, when discuss guidance from the Equality and Human Rights Commission (in the paragraph below), the Equality Act 2010 does not actually require a person to have undergone physical or physiological changes in order to be regarded as possessing the protected characteristic of gender reassignment.

Guidance from the Equality and Human Rights Commission

The Statutory Code on Employment issued by the Equality and Human Rights Commission contains a number of examples which demonstrate discrimination on the grounds of gender reassignment:

Example 1

A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment.

Example 2

A person born physically male lets her friends know that she intends to reassign her sex. She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex.

Example 3

Before a formal dinner organised by his employer, a worker tells his colleagues that he intends to come to the event dressed as a woman ‘for a laugh’. His manager tells him not to do this, as it would create a bad image of the company. Because the worker has no intention of undergoing gender reassignment, he would not have a claim for discrimination.

On the other hand, if the employer had said the same thing to a worker driven by their gender identity to cross-dress as a woman as part of the process of reassigning their sex, this could amount to direct discrimination because of gender reassignment.

It is worth noting in the above examples 1 and 2 that the individuals in question have not actually undergone the start of a physical transformation from one gender to another, but nonetheless both are protected in terms of Section 7 of the Equality Act.

Conclusion

A person who has undergone gender reassignment will have a protected characteristic in terms of the Equality Act 2010. Currently, the process by which an individual undergoes gender reassignment is laid down by the Gender Recognition Act 2004. This legislation was passed by the UK Parliament and applies across the country.

The Scottish Government has now announced that it intends to introduce a Gender Recognition Bill to reform the existing legislation. At the time of writing, it remains unclear when this will happen.

The purpose of the reforms is to move away from an emphasis on medical evidence to support the issuing of a gender recognition certificate to a system of self-declaration of gender (albeit under certain conditions being satisfied).

This subject has generated a lot of (often heated) debate and will probably continue to do so.

Postscript

The proposed Gender Recognition Bill continues to cause controversy – Wings over Scotland – the biggest pro-independence blog in Scotland edited by Stuart Campbell has found itself at the centre of the storm this week (4 July 2019). Campbell criticised the prominent nationalist MP, Mhairi Black for appearing on a YouTube channel where she appeared to attack those who were not in favour of the Gender Recognition proposals.

Needless to say this has generated a lot of comments by readers of the blog.

Links to Stuart Campbell’s blog entry and Mhairi Black’s Video can be found below:

https://wingsoverscotland.com/no-independence-day/#more-111060

https://youtu.be/9FlbIes2mlg

Copyright Seán J Crossan, 25 June, 5 & 29 July 2019

Segregation

Photo by Jeff Qian on Unsplash

The word segregation has very negative associations and we often think of the American Deep South before the victory of the Civil Rights’ Movement in the 1960s. In more recent times, we think of Apartheid era South Africa and its official policy of segregating the different racial groups.

Segregation on racial grounds would constitute direct discrimination in terms of the Equality Act 2010.

In its code of practice, the Equality and Human Rights Commission has previously used the following example of segregation which would be unlawful:

Example

A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race.

A story (first reported by The Guardian) focused on segregation at a housing development in England. The developers were not prepared to allow housing association tenants on the site to have access to the recreational facilities. Only those individuals who had purchased properties at the development were entitled to make use of them.

On the face of it, this may be another example of the (social) class divide in the UK and no amount of legislation has managed to eradicate this problem. That said, a deliberate policy of segregation as operated by the developers might be capable of legal challenge if it could be demonstrated that the policy was leading to indirect discrimination in connection with a person’s protected characteristics.

I can’t help wondering if the developer carried out an equality impact assessment study before implementing the policy? Indirect discrimination, of course, occurs when an individual or an organisation operates a policy, criterion or practice (PCP) which has a disproportionately adverse effect on a certain group of people.

In a previous Blog (Indirect Discrimination published on 21 February 2019), I discussed this form of discrimination in relation to a story from New York.

It may be the case that a higher proportion of people from minority ethnic groups or non-white British citizens or EU nationals may be tenants of the rented accommodation at the development. We could also have more single parent families living in the rented properties who are headed by a female.

Several of the tenants are looking into the possibility of raising a legal challenge. Although, by the time that the story had gained national publicity, the developer was reconsidering its position.

Links to the story can be found below:

https://www.theguardian.com/cities/2019/mar/25/too-poor-to-play-children-in-social-housing-blocked-from-communal-playground

U-turn over ‘segregating’ children at London housing development

Postscript

In July 2019, the UK Government announced plans to introduce legislation in England which would effectively put an end to the practice by developers of having separate entrances and facilities (in effect segregation) for private owners and public sector tenants living in housing developments.

In Scotland, housing policy falls within the legislative powers of the Scottish Parliament.

A link to the story about the proposed legislation as reported by the BBC can be found below:

Ministers pledge to end ‘poor doors’ in new build housing

Watchdogs

In an earlier post published today (No more heartbreak hotel?), I discussed the work of regulatory bodies such as the Competition and Markets Authority.

Another body which does a lot of sterling work on behalf of the public is the Equality and Human Rights Commission. It is the body charged with the responsibility of enforcing the equality laws of the United Kingdom.

Recently, the Equality and Human Rights Commission has taken an interest in highlighting (and challenging) allegations of unlawful, less favourable treatment.

The Commission has made known its intention to investigate the British Broadcasting Corporation (in respect of sex discrimination involving pay) and the British Labour Party (for alleged anti-semitism).

Links to these stories can be found below:

‘Watchdog investigates BBC over ‘pay discrimination’’

https://edition.independent.co.uk/editions/uk.co.independent.issue.130319/data/8819431/index.html

Labour antisemitism: equalities watchdog opens investigation

https://www.theguardian.com/politics/2019/mar/07/labour-antisemitism-equalities-watchdog-opens-investigation