On protecting characteristics
by Michael Foran, Artillery Row:
The facts about gender, schools and law.
Yesterday it was revealed that the government is expected to delay issuing transgender guidance for schools after the attorney-general warned that blanket rules here may be unlawful. The government sought advice on whether it would be lawful to introduce a blanket ban on social transitioning, including changes to name, dress and pronouns. In order to understand why the government might have pushed for a blanket rule here, we need to look to the context of uncertainty and misinformation that prevails around the law relating to sex and gender. In that climate, there is a danger that rules with exceptions will be inverted in practice. Activists and advocates may push to represent the law as they would like it to be rather than how it is, as has happened for single-sex services and associations.
The Equality Act covers a list of protected characteristics, including Gender Reassignment, which likely protects most if not all gender distressed children seeking to socially transition in schools. There is a lot of confusion and misinformation about what being protected under Gender Reassignment means, and this is likely affecting how guidance is being drafted.
Some advocates, including some lawyers, argue it means you are entitled to be treated as if you were the sex you identify with unless the policy passes a proportionality test. That’s incorrect. If you’re protected under gender reassignment, you’re entitled not to be discriminated against on that basis. You can’t be fired or denied services because you are trans. This does not mean you are entitled to be treated as if you are the opposite sex.
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