Legislating for Trans Equality: Recent Developments in the United Kingdom and Ireland
In January 2016, the House of Commons Select Committee on Women and Equalities published a landmark report on ‘Transgender Equality’. Among the Committee’s many recommendations was a proposal to amend s. 7 of the Equality Act 2010, which guarantees non-discrimination protections on the basis of ‘gender reassignment’.
During its investigations (Transgender Equality Inquiry, August – December 2015), the Committee received a number of complaints about the wording of s. 7. First, emphasising the now dated terminology of ‘reassignment’, s. 7 is often perceived as requiring a full, medical transition. While the 2010 Act speaks broadly of ‘changing physiological or other attributes of sex’ [emphasis added], the Committee identified a ‘widespread, misapprehension that the Act only provides protection to those trans people whose transition involves medical “gender-reassignment” treatment.’ Second, against the legal backdrop of gender recognition, many employers and service providers interpret s. 7 as applying only where a person already has a Gender Recognition Certificate. Finally, the reference to ‘reassignment’ appears to exclude non-binary persons who, identifying as neither male nor female, have no need to transition. Indeed, evidence before the Committee suggested that non-binary individuals are only protected where they are perceived as proposing to undergo (or are undergoing) reassignment.
Given the doubts over the existing wording, the Committee recommended that Parliament adopt a new protected characteristic: ‘gender identity’. Drawing upon the Yogyakarta Principles definition, ‘gender identity’ would protect all persons who experience discrimination because of their ‘deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body…and other expressions of gender, including dress, speech and mannerisms.’
In Ireland, trans persons are currently not mentioned in either the Equal Status Acts 2000-2015 (‘ESAs’) or the Employment Equality Acts 1998-2015 (‘EEAs’). In Hannon v First Direct Logistics Ltd, the Irish Equality Tribunal held that it was ‘well established in law that the gender ground protects transgender persons from sex discrimination’. The Hannon judgment has been interpreted as affirming trans inclusion within Ireland’s wider non-discrimination framework.
Yet, relying entirely upon Hannon as the basis for trans equality rights is an unsatisfactory state of affairs. The decision was not appealed, and there has been no subsequent superior court statement on the Equality Tribunal’s reasoning. More fundamentally, however, requiring that Ireland’s trans community piggyback on broader gender guarantees fails to adequately acknowledge trans-specific concerns. In many instances, trans experiences of discrimination will differ markedly from typical sex-discrimination scenarios. Without incorporating the elements of self-identification and gender expression, Irish law is not well-placed to accommodate trans claimants. Testifying before the UK’s Transgender Equality Inquiry, James Morton stated that ‘pulling the trans protected characteristic out from underneath the sex discrimination protected characteristic was really, really helpful…in terms of encouraging employers and also service providers to take into account the needs of trans people.’
In the recently published General Scheme of the Equality/Disability (Miscellaneous Provisions) Bill (‘the General Scheme’), the Irish Government proposed to explicitly incorporate trans protections into the existing law. The ESAs and the EAAs will be amended so that the ‘gender ground’ will now include: gender, gender identity…transgender man and transgender woman. However, while the General Scheme is a significant step forward, the current proposals nonetheless raise important concerns.
First, given the value, identified in the UK, of adopting a standalone trans category, it is unclear why the Irish Government has decided to conflate the appreciably different concepts of gender and gender identity. A preferable model would be to introduce a new protected category: ‘actual or perceived gender identity or gender expression’. Second, while the General Scheme mentions gender identity, the numerous references to ‘transgender man’ and ‘transgender woman’ create a worryingly binary structure. Recent surveys, such as the Report from Ireland’s first National Trans Youth Forum, illustrate the growing non-binary population. Protecting only rigid male-female identities will not impact many within the Irish trans community. The Government must ensure that (a) any amendments which are passed embrace all identities and expression, and (b) that trans persons need not place themselves within an artificial binary in order to enjoy basic equality protections.