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Gender Reassignment: Rights in. law. What I will cover. Who we are and what we do Introduction to the protections for transsexuals under the Equality Act 2010 Introduction to unlawful discrimination What to do if you have been discriminated against Discussion & questions. What we do.

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  1. Gender Reassignment: Rights in law

  2. What I will cover • Who we are and what we do • Introduction to the protections for transsexuals under the Equality Act 2010 • Introduction to unlawful discrimination • What to do if you have been discriminated against • Discussion & questions

  3. What we do • Promote and enforce compliance with equality law • Protect and promote human rights Examples of our work • Provide guidance • Research and intelligence • Carry out inquiries and take enforcement action • Support strategic cases • Monitor and report on UK performance to UN

  4. The protected characteristics Age Disability Gender reassignment Marriage & civil partnership Pregnancy & maternity Race Religion or belief Sex Sexual orientation

  5. Equality Act 2010 – Gender Reassignment Where a 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.

  6. Gender Reassignment can be non-medical A person who was born physically male decides to spend the rest of her life as a woman. She starts and continues to live as a woman. She decides not to seek any medical diagnosis because she doesn’t want to take hormones or have surgery.

  7. Width of protection The Equality Act 2010 protects a wider range of trans people than just traditional transsexual people: • No medical diagnosis or medical supervision required • Covers proposing to undertake any part of a process • Covers change of other non-physiological attributes of sex (e.g. permanent change of gender pronouns or clothing) • Covers a person being treated less favourably because they are perceived as having the protected characteristic of gender reassignment when they don’t • Covers a person being treated less favourably because they are associated with another person who has the protected characteristic of gender reassignment

  8. Diagram of Protection

  9. What is discrimination • Treating a person worse because of a PC, than would treat another (direct discrimination) A pupil undergoing gender reassignment is told she will not be able to attend the school camp because they do not have any suitable toilet facilities. • Treating someone worse than someone else because they are associated with someone with a PC (discrimination by association) A charity running a playgroup refuses to let a child take part because one of their parents is about to undergo gender reassignment from female to male.

  10. What is discrimination • Doing something that applies to everyone, but turns out to have a worse impact on people who intend to undergo, are undergoing or have undergone gender reassignment, and is not objectively justified (indirect discrimination) • Need to show that doing this meets a legitimate aim and is appropriate and necessary to that aim

  11. What is discrimination A community training centre providing training in IT skills for unemployed people has a blanket ban on changing its record of awards. It therefore refuses to agree to a request from a trans person to change her record and award a new certificate in her new name.

  12. What is discrimination Harassment means unwanted behaviour related to gender reassignment which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Nancy Brown lives in a residential care home. One of the members of staff finds out that she has undergone gender reassignment. He starts calling Nancy a ‘weirdo’ and insisting on calling her ‘Mr Brown’.

  13. What is discrimination Victimisation occurs when a person is treated badly because they have made or supported a complaint related to the Act, or the service provider/ employer etc. thinks they have done so or may do so in future. It is not necessary for the victim to be a trans person to be protected – it will still be victimisation if a person gets treated badly because they have supported someone else who is claiming gender reassignment discrimination.

  14. Your rights relating to the provision of goods, facilities and services • EA imposes obligations on everyone concerned with the provision of services to the public, whether in the private, public or voluntary sectors • Law applies in most circumstances, with only a handful of exceptions

  15. Exceptions to services and public functions • Insurance (Sch 3, Part 5, para 22 & 23) • Marriage (Sch 3, Part 6) • Separate and single sex services (Sch 3, Part 7) • Communal accommodation (Schedule 23, Para 3)

  16. Exceptions – other • Charities (s193 & s194) • Competitive sports (s195) • Gender reassignment harassment in schools (s85(10(a))

  17. The EHRC’s powers • Provide legal assistance to an individual bringing a claim under the EA, or which involves equality and human rights, but not human rights alone • Intervene in cases at any level, which involve equality or human rights or both • Bring Judicial Review proceedings in Commission’s name, which involve equality or human rights or both • Apply for an interdict • Conduct investigations, including issuing unlawful act notices, and action plans

  18. EHRC strategic priorities for using litigation powers Where action would: • bring a significant positive impact in terms in an organisation or across a sector • create greater understanding of rights and obligations under the equality enactments or human rights law • address significant disadvantage or major abuse or denial of human rights • clarify an important point of law under the Equality Act 2010 or Human Rights Act • extend or strengthen protections and rights under the Equality Act 2010 and human rights law.

  19. Test case issues • ‘proposing’ to undergo gender reassignment – how someone ‘manifests’ this proposal • Association and perception • Indirect Discrimination • Public functions • Discrimination and harassment in schools • Occupational Requirements complying with EU Framework Directive • GRCs in single sex services/communal accommodation • Insurance exception • Discrimination by Associations • Instructing and causing discrimination

  20. Other issues • NHS Scotland: Gender Reassignment Protocol Response to complaints about difficulties accessing gender reassignment health services

  21. Strategic human rights and equality litigation www.equalityhumanrights.com/legal-and-policy/strategic-human-rights-and-equality-litigation/ Legal Team Bulletin www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/ Requests or assistance: legalrequestscotland@equalityhumanrights.com EASS: http://www.equalityhumanrights.com/about-us/equality-advisory-support-service/

  22. Equality law set out in Equality Act 2010 • Prohibits worse/ less favourable treatment because of gender reassignment • There are some exceptions to this rule

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