The pursuit of statutory protection for individuals who are non-binary or inter-sex
The Women and Equalities Committee performs a critically important cross-government role in respect of trans equality. In July 2015 the Committee launched an inquiry considering how far, and in what ways, trans people still have yet to achieve full equality and how outstanding issues can be effectively dismissed. The inquiry acted as a catalyst for debate and also highlighted that the Committee’s Advancing Transgender Equality action plan (from 2011), remains largely unimplemented.
A central finding of the Women and Equalities Committee report (published in January 2016) was that the terms “gender reassignment” and “transsexuals” in the Equality Act 2010 are outdated and misleading and may not cover wider member of the trans community. The Committee recommended that the protected characteristic should be amended to that of “gender identity”.
That recommendation was rejected in the government response which considered that the protected characteristic, as defined, fully complies with its obligations under the Equal Treatment Directive; which is short hand for saying we are not obliged to (and therefore will not) go any further. The government’s response cross referred to the definition in the Equality Act 2010 of treating someone less favourably because of a protected characteristic, and highlighted that it is not necessary for the person to actually have the protected characteristic themselves. It suggested that wider categories of transgender people, such as cross-dressers, non-binary and gender fluid people are protected if they experience less favourable treatment because of gender reassignment; for example, if they are incorrectly perceived as undergoing gender reassignment when in fact they are not; or are incorrectly perceived to be male or female.
There is not, however, any specific statutory guidance on (or consideration for) those who are gender fluid. The Equality and Human Rights Code of Practice specifically refers to individuals being provided with protection where they are “as part of the in process of reassigning their sex, someone is driven by their gender identity to cross-dress, but not where someone chooses to cross-dress for some other reason”. The Women and Equalities Committee quoted current statistical data which specifies that some 650,000 people in the UK are “likely to be gender incongruent to some degree”.
It is clear that there is a lacuna in the current law as the Equality Act 2010 does not currently cover those who are non-binary or inter-sex (those who are born with a physical sex anatomy that does not fit medical norms for female or male bodies). As the government continues to review the equality law landscape post Brexit, now is the appropriate time to reform and extend statutory protections to those who are non-binary, and also inter-sex individuals.
Partner and Head of Employment Law, DKLM LLP