Queering the Equality Act 2010 with Doughty Street Chambers

About this Event

Please note: This event has been postponed to take place on 10th February 2021. 

The Equality Act 2010 is often criticised for its lack of intersectional analysis of discrimination: it views individuals in silos instead of taking account of the many ways in which an individual can be and is discriminated against. Borrowing the methodology of the seminal Feminist Jurisprudence Project, Donnchadh Greene, Alice Irving, and Jonathan Cooper will reimagine key Equality Act 2010 judgments from an intersectional queer perspective. This will include looking at the recent Bell v Tavistock judgment and an update on recent Strasbourg decisions and how they highlight the deficiencies in the current Equality Act 2010 provisions.

Chaired by Mark Henderson.

Blurb from Eventbrite

Introduction

This webinar was hosted by members of Doughty Street Chambers LGBTQ+ network group, imaginatively titled OUTy Street (imagine the titters!). The network group is only about a year old and has about twenty members (remember this is a very repressed community with no power). Indeed it was about this time last year that I prepared to go to what must have been one of their first events, with Peter Tatchell and Roz Kaveney, but sadly was too tired. That was an in person event – do you even remember those?

The ethos of the OUTy group, like all network groups (many of which are directly affiliated with Stonewall’s Workplace Equality Index) is to be ‘inclusive’ of everyone (unless you disagree, in which case report to HR).

The host of the event, Mark Henderson, human rights barrister, began by offering some waffle up about the word ‘queer’ being reclaimed in the 80s by AIDS activists in America and this gathered pace through the 90s. I genuinely only recall people using ‘queer’ a lot very recently and certainly not in the 90s. I never recall seeing this word in The Pink Paper (not to be confused with the odious Pink News) which was a real paper which published throughout the 90s. Queer as Folk started broadcasting in 1999.

Henderson said that ‘queer’ embraced intersectionality, and could especially encompass queer disability groups, and that he was proud to have marched between a queer disability group and Mermaids at Pride.

He didn’t quite get onto why it was okay to say it why it was acceptable to use it as a verb though. ‘Queering’ the Equality Act sounds tantamount to ‘skewing’ or ‘distorting’, but this is the world of human rights barristers, so who cares, eh?

Non-binary identities: Taylor vs Jaguar Land Rover Limited

Alice Irving was brilliant at informing us about the world of non-binary identities. She was only called to the Bar in 2018 so is young and described herself as ‘queer’. She is involved with Doughty Street Chambers Children’s Rights Group which is anti-FGM but pro LGBTQI.

According to Irving, being non-binary is an identity that ‘a lot of people have’ and put up a slide of the Stonewall approved definitions of trans and non-binary. All you need to know is that non-binary comes under the auspices of trans and therefore is one and the same.

We were shown photographs of what non-binary people might look like – Sam Smith (hairy man with moobs), Jack Munroe (woman with short hair and make-up) or some bloke who is currently winning at Drag Race (hypersexualised clown outfit). Pfft.

A man called Rose Taylor, who sounds like a cantankerous arsehole, bought a case against his employer Jaguar Land Rover Ltd. Although Taylor identified as non-binary, he chose to have ‘she/her’ pronouns, rather than ‘they/them’, which is so much more traditional for those who feel that they aren’t of either the male or female sex. Taylor also did not want to have surgery or pursue any kind of transition.

Sadly in the time we are living in there is a terrible fixation and pressure on men who have a gender identity, popularly known as ‘transwomen’, having to present themselves as ultra feminine. Irving told us that Taylor dressed like a woman twice a week at work.

Taylor alleged that he experienced terrible prejudice at work, including questions like ‘are you going to have your bits chopped off?’ and ‘is it Halloween?’ When he complained to the HR department they told him not to be so sensitive. (Begs the question why he didn’t film such abuse if it was happening so regularly and out in the open.)

But it wasn’t just the jibes and the inappropriate questions, it was also colleagues who were supportive. Imagine his distress at being told he was ‘brave’ and ‘ooh I like your dress’ or ‘you’ve got great legs’. It were these comments too that drove him to distraction, mental breakdown and finally suicidal ideation. In fact, Taylor was under so much pressure that he resigned from his job. According to Irving when he thought a queer compatriot was going to join the company he decided that might see if he could continue his employment after all, but the company would not allow him to withdraw his resignation letter.

It would be a gross understatement to say that I am no legal expert, but once you give your resignation letter in, you don’t get to retract it, so it is quite something that Taylor decided to challenge his ex-employer for dismissal, and that a lawyer would even touch the case. No doubt someone will correct me, but he resigned for fuck’s sake!

Irving felt that the preliminary question was ‘does a non-binary, gender fluid person have the protected characteristic of gender reassignment?’ No. NEXT!

But look at all this stuff said Irving, pointing out on her slide that the legislation used ‘arcane’ language like transsexual. What are ‘attributes of sex’ Irving wondered, though presumably attributes of gender would be fine.

The main thing is no one can really tell when that decision to trigger transition actually happens, and therefore it allows some fudging (or ‘queering’ if you prefer).

What’s more the Women and Equality Select Committee Report in 2016 said some stuff yeah and almost 65% of people agreed, so might this not create a case for the Equality Act to be influenced to include non-binary as a protected characteristic.

(All this stuff about non-binary identities by the way, is simply a back door for self-identification. And they know it.)

What was positive about the Judgement in the Taylor vs Jaguar was that it looked at the recorded comments in Hansard. When they looked at these ‘underlying materials’ it was interpreted that there should be a move away from medicalisation.

Irving gave what she thought were very academic interpretations of the paragraphs of the Judgement but ultimately she was arguing that gender reassignment can include people who are non-binary, gender fluid and people who have no end point in mind (so pure queer theory really).

Taylor refused to name the colleagues who had allegedly abused him, apparently too timid, but as the same time he was carving himself a niche, setting up the first LGBT network group at Jaguar and visiting schools as a ‘champion’. Irving described him as ‘remarkable’. I’d suggest ‘lying bastard’. Jaguar’s counsel also thought so too and asked him why he hadn’t committed suicide (okay they may have been slightly more diplomatic than that).

Taylor had been told to use the disabled toilet by his employer, because, you know gender dysphoria = disability. This was a big problem, Irving said, because it wasn’t respectful to trans people. Although, Irving reflected, perhaps the terrible pressure Taylor had come under at work could be akin to the ‘environment’ itself being ‘disabling’, which should allow him into the disabled loos after all (therefore implying that all bullied employees should be able to use the disabled facilities).

I genuinely thought she was going to make the point that Jaguar employees with access issues had lost a facility to a totally able man, but she didn’t. One might think this was immoral or at the very least a conflict of rights.

Digital Identities: R (C) vs Secretary of State for Work and Pensions, 2017

Donnchadh Greene presented this case history of a case which took place in 2017. He previously worked for Liberty, identifies as queer and had worked with ‘LGBTQI+’ refugees (I wonder what a + refugee would be?).

This case revolved around a man who had been granted a Gender Recognition Certificate (GRC) and problems with the database in the Job Centre. He had lost in his job in 2010 and had to attend the Job Centre once a fortnight. The database held information that he was a GRC holder which lead to lots of embarrassing encounters (I guess he must have passed really well and absolutely no one realised).

There was a special customer records policy, which helps keep data a bit safe for victims of domestic violence, people in witness protection programmes, and GRC holders. Greene said that the majority of people who made use of this policy were trans people (which suggests shared knowledge of the policy since there are far huger numbers of women at threat of domestic violence).

Because C’s information was under this special policy, every time he went to the Job Centre it would flag up to employees that it was protected information that they were not allowed to access. It was argued then that this flag would indicate to the employee that C was in fact trans, rather than, say, a victim of domestic violence.

Apparently the whole experience was so distressing C had to transfer his files and care to a different Job Centre because there were a lot of nasty comments. It was argued that C’s right to privacy had been badly breached and that there was indirect indiscrimination.

The Judge presiding decided that information still need to be recorded correctly to ensure the prevention of fraud and calculation of pension age. Greene stated 3-4 times that he didn’t under pension age. It’s quite simple lovie, just Google it.

Between the High Court and the Court of Appeal the database was updated so that the GRC section was masked so that no one could see the information, but then remained the problem that masking of the information meant there was a positive result to hide.

Greene moaned that Lady Hale in the Supreme Court reasoning had said something sympathetic about people not being comfortable in their own bodies (this being ‘archaic’ language) but she had noted that transphobic hate crimes were on the rise.

Greene said it a point of intersectional oppression that C was not only dependent on benefits, transgender and also might have his payments delayed by a few days if anyone wanted to access his files.

Finally Greene shared with us his vision for queering law if he ever reached the lofty heights of the Queens Bench Division. He personally has ‘never transitioned’ and that therefore his perspective of how trans people think was limited and emphasised how each gender identity is completely unique.

Greene paid tribute to Sophie, the music producer no one had heard of until he died a few weeks ago. Greene read out the words on the slide. He wanted to put the essence of this song right at the centre of how we are thinking about identities.

If you can bear it, below is the song itself. The first four minutes are the worst.

Greene stated that C was a woman (he never referred to C a trans woman) and that the State got it wrong.

If I was queering this judgement, I would put the onus on the State to say how are you fixing this error that effectively you have made. […] And how do we centralise her autonomy? […] What about people who are non-binary and gender-fluid on some days and may present more male and female and how would this judgement sit squarely with that, because if we are going to take an intersectional approach [we should] try and include as many people as possible […] I can’t speak for trans people, I’m not a trans person myself, but the idea that they are individual, as Sophie who I quoted earlier ‘I was a lonely girl in the eyes of my inner child’, that there’s a sense they have always been who they always are.

Donnchadh ‘I’m not trans and I don’t understand pension age’ Greene, 10 February 2021

LGBTQ+ rights in the UK: Is the Equality Act 2010 keeping up with the European Convention on Human Rights?

Presented by Jonathan Cooper, Human Rights Specialist called to the Bar 1992. Only Cooper didn’t say much as the two youngsters had gone on and on and on. In turn Cooper spent an inordinate amount of his available left speaking time justifying the word ‘queer’, which is sort of like admitting that the word is objectionable and indeed he did finally admit that.

Cooper said that Strasbourg was beginning to understand that transgender issues were not just about the binary, but also about non-binary identities and people who did not need to go on a ‘journey’. Two Romanian women, who wanted to have their sex marker reflect that they were male could not do so unless they underwent surgery (X & Y v Romania) which they did not want to have.

Strasbourg, Cooper said, had jumped ahead of UK Law and the Equality Act. The court had also said things needed to be done quickly and efficiently. Cooper described the Gender Recognition Act as a ‘dinosaur’ which urgently needed to be revised and ‘the government need to be doing it but if the government doesn’t do it the courts will’. Hm. Okay.

Remember the gay marriage cake case? Cooper was an intervener in that case. I don’t really know what to think about it, but taking it all the way to Strasbourg seems like a waste of public money and has echoes of #waxmyballs.

Those are the disadvantaged people, those are the people that need equality law to protect them and give them the rights that they properly deserve and need and that particular right is that we can pitch up in any baker and ask for any cake to be iced with any message that we want. The fear and threat that Gareth Lee must have felt by being rejected, I mean literally the thought of it traumatises me and takes me back into my own past.

Jonathan Cooper, 10 February 2021

You would think someone would mention of the three murders in Reading in June 2020 when a Jihadist acting alone targeted a group of gay men relaxing in the park, but basically no one wants to take on the thorny intersectional issue of a muslim refugee enacting terrorist violence against another minority group. So let’s just focus on icing cakes. I do agree it’s easier.

Cooper also bravely touched upon the Bell vs Tavistock case, noting the devastating effects that puberty blockers aka GnRH agonists have on developmental growth. Just kidding. No, what he actually said was ooh er ah yes interesting case more words let’s see what happens AND:

The rather brilliant Naomi Wolf, for those of you who have not read her work – do not be put off by any controversy that surrounds her – the rather brilliant Naomi Wolf has described the decision in such startling terms, where she puts it into context of the state, i.e. the courts making these very very personal decisions between us and our healthcare providers. I think when you look at it in that context and you look at how you need to preserve and protect that relationship between us and our healthcare providers and you can put into the context of all sorts of issues, the most obvious one being the right to terminate a pregnancy.

Jonathan Cooper, 10 February 2021

Sorry, I did not realise that Wolf was a legal expert, is there no end to her largesse?

Question & Answer

As per usual chat was turned off and participants could not see the questions coming through. In fact they only displayed one question, but there were probably dozens from what I sensed was a large gender critical turn out.

Q1: My understanding from your explanation is that being non-binary was constructed by the court as analogous to being ‘on the way’ to ‘full’ transition (the A to Z analogy they used), in order to fit non-binary experience within the language used in Hansard. Whilst as you said this might reflect the Claimant’s feelings about her gender, is this not a slightly uncertain basis for future claims by those who have a fixed non-binary identity, and do not feel that they are ‘on a journey’ with their gender?

Alice thought the paragraph 178 of the Judgement in the Taylor vs Jaguar case in that it recognised that some people were not moving from A to Z (i.e. from male to female vice versa) and that an interim state might well be recognised.

Q2: Doesn’t there need to be an impact assessment for other employees too with regards to toilets?

I don’t make any excuses for the fact that I don’t think trans people pose a risk to anyone in using bathrooms of their preference. I don’t see a conflict between women’s rights and the rights of trans women to use a women’s bathroom. Trans women have been using women’s bathrooms for a very long time without that being an issue. I do recognise that some women don’t share that view and there is a [section] of the Equality Act the caveat that allows for same sex spaces. […] You can maintain a same sex space if there is a proportionate means of achieving a legitimate aim and my view is that I don’t think it’s a proportionate means of achieving a legitimate aim to exclude a trans woman or non-binary person from a toilet of their preference on the basis that some people don’t feel comfortable with that. There isn’t evidence to suggest that there is a risk to women or other toilet users in these circumstances. […] I don’t think it’s a legitimate aim to advance peoples’ fear about that although I appreciate that that’s controversial. Sure carry out an impact assessment, but I think the answer to that impact assessment is there isn’t an issue with a trans person using the bathroom they prefer to use.

Alice Irving, 10 February 2021

Okay, so where is the evidence that men are at danger of using men’s toilets on the basis of their internal identity or sartorial choices? How on earth would another man know that Sam Smith was non-binary? Is anyone ever going to answer these basic questions?

Q3: Is there a case for abolishing altogether legal recognition of sex and identity and protecting personality as a characteristic instead?

Greene said no because those with protected characteristics were vulnerable in some way and gave the example of a heterosexual man who worked at a gay bar and experienced discrimination. Personality was too much of a nebulous concept.

Q4: I note that you seem to be associating queer with trans but no mention about LGB? Would you see them included in the queering of the Equality Act?

Greene said trans people were experiencing media harassment and that there was a moral panic around them.

As proof of Cooper’s PTSD with the gay marriage cake he suggested that Irving and Greene go away and do their homework and queer the Gareth Lee’s case.

Irving said that she did not think personality route was a good thing either because there was a ‘slightly pernicious tendency in some of the conversations that you’re ID-ing into gender identity, that’s just like having a personality or choosing something’.

Q5: Could the panel comment on the gender critical take that sex and gender reassignment in the Equality Act are mutually exclusive and in particular how can we combat that argument?

Irving repeated the stuff about her not believing that single sex spaces was not proportionate. She believed this could be:

pushed on really really hard but I just don’t think that there is the evidence to support that this is necessary to protect women’s rights and I say that as someone with a very strong campaigning background against sexual violence who is very keen to ensure that women rights are protected. Framing it in terms of the Equality Act is a bit of a dodge.’

Alice Irving, 10 February 2021

Q6: Why do you keep using ‘queer’ which is such a hateful word?

More flannel from Cooper and a recommendation for people to read the book that Naomi Wolf’s publisher had to pulp. Cooper claimed that the sodomite was still the bogeyman which threatened to swoop in to rape and abuse and hurt people. This is the legacy we still live. It’s very very horrible word, agreed Cooper, but empowering.

Weird. Very strange. I really don’t know what to make of these people.

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