Thread by @michaelpforan

Some thoughts on this with the caveat that I’ve not seen the guidance nor the legal advice.

thetimes.co.uk/article/trans-…

First some background. The Equality Act covers a list of protected characteristics. Gender reassignment is one of them. It’s not tied to the Gender Recognition Act, you don’t need to be in the process of obtains a GRC to be protected and it almost certainly covers minors.

This means that children who are experiencing gender distress are likely protected from gender reassignment based discrimination. There is a lot of confusion and misinformation about what being protected under GR means and this is likely affecting how guidance is being drafted.

Some advocates 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 ground.

The test for determining discrimination is called a comparator test: whether you would be treated less favourably than another person who is identical in all relevant respects except the protected characteristic in question.

We know from Green v Secretary of State for Justice that if you don’t have a GRC (no children have GRCs) your sex is your biological sex. So a trans boy is female for the purposes of the Equality Act. The comparator then is a girl without gender reassignment.

This is very important. It means that you need to ask whether other females would be required to wear the girls uniform or be referred to by she/her pronouns. They would be, so it’s not direct discrimination. Where this gets complicated is indirect discrimination.

Indirect discrimination occurs where persons who share a protected characteristic are put at a particular disadvantage and where there is no legal justification for doing so. I’ll return to that later.

So, continuing the background. Being protected under gender reassignment doesn’t entitle you to be treated as the sex one identifies with. But some very prominent advocacy groups have argued that it does. This has led to a lot of confusion.

Added to that, some have argued that the structure of the Equality Act is the reverse of what it actually is. The default is equal treatment. There are then exceptions built in that reverse this presumption in order to allow for single sex services, associations and schools.

But there is an exception to the exception which says in very rare circumstances, it may be disproportionate to have a single sex service - for example a men’s only barbers that refuses to cut the hair of a short haired woman.

So here’s the structure:

1. In general equal treatment
2. Some areas where presumption is revered to (in general) unequal treatment to allow single sex services
3. In very rare cases, an exception to the exception.

But some have argued very persistently the exact opposite.

Some have argued that Gender Reassignment means you’ve a right to be treated as if you had changed sex when you haven’t and they have argued that 3 (The exception to the exception) is actually the norm: that it’s the default when it isn’t. This has caused so much confusion.

So anyone drafting guidance for schools is going to be cognisant of the fact that if you say ‘X is the general rule but in very rare circumstances Y can be done’ there will likely be a concerted effort to make Y the general rule when it is suppose to be the exception.

I suspect the guidance has tried to avoid this because it wants to provide guidance and not add to more confusion. Add to this the fact the Cass report has indicated that social transition is a medical intervention that should be carefully considered before any action is taken.

Against that backdrop the guidance likely sought to provide clear rules with no exceptions. The problem is that rules without exceptions run into problems with proportionality and proportionality is triggered if a policy has a particular impact upon kids who share a PC.

So there’s an issue of indirect discrimination and a question of justification for blanket rules. It’s not impossible for them to be justified as proportionate, blanket rules have been proportionate.

But the fact a rule has no exception is very likely a black mark against it in proportionality analysis. And this is probably what the legal advice from the Attorney General concluded.

So there will either be new advice issued that tires to make it clear that the exceptional case really is the exceptional case and not the norm, or legislation will be introduced to make it clear that schools can have blanket rules here.