As any trans person who has been embroiled in the so called debate around trans lives in the UK (and elsewhere, particularly America) can tell you, one of the most enduring, consistent ‘tactics’ used by trans hostile activists is that of Deliberate Misinterpretation.
Why do they do it?
It’s a classic example of “repeat a lie for long enough and everyone will believe it”, and when it comes to the UK’s Equality Act 2010, it’s coupled with attempts to try and justify their desire to universally apply the very few exemptions allowed to legally discriminate against trans people. Exemptions are, by their very nature, not intended to be applied universally because they wouldn’t be exemptions then, but that’s just another example of trans hostile sophistry at work.
This article isn’t here for them to argue against – in fact, at this point I don’t particularly care what they think, or what justifications they throw. Been there, done that, bought the novelty T-Shirt.
This is intended as a quick guide for those who are sitting on the sidelines wondering just what is going on, and how to unpick truth from lies..
So sit back, relax and I’ll take you on a quick run through of the Equality Act 2010’s Gender Reassignment characteristic, and some of the deliberate misinterpretations trans hostile activists use to try and muddy the waters for the uninformed.
Disclaimer: this isn’t legal advice, simply pointing out how and why trans-hostile activists are wrong. However, this article has been reviewed by a solicitor and found to be correct. If you are experiencing a legal issue related to this type of discrimination, please talk to a solicitor directly.
If you are in the legal profession then you may find these resources useful:
What does EA2010 actually say?
The protected characteristic of ‘Gender Reassignment’ can be found in Part 2, Chapter 1, Section 7, with links to explanatory notes. And it says:
Gender Reassignment
(1) A person has the protected characteristic of gender reassignment if the 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.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3) In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons
OK, with that in mind, let’s look at some of the commonly used….
Deliberate Misinterpretations
1) EA2010 isn’t done by ‘Self ID’
Actually it is – it’s right there in 7(1).
‘A person has the protected characteristic of gender reassignment if the person is proposing…’
The person undergoing gender reassignment is the one protected, and it is the person themselves who defines that. QED – Self ID.
2) EA2010 only applies if you’ve had surgery
Wrong! We need to look at this in two steps, but again it’s right there in 7(1).
‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex’
This means that anyone who says they want to transition (proposing), is transitioning (undergoing) or has completed transition (has undergone) is protected.
‘by changing physiological or other attributes of sex.’
This is the interesting bit that ties the previous together. Surgery and HRT are ‘physiological’ attributes’, as they change the way the body looks & works.
What about ‘other attributes of sex’? Simply put, it’s everything else. This covers everything that we would normally consider to fall under the term ‘gender’ – how someone dresses, acts, names, titles, and yes, even pronouns. Anything we would normally consider to be gendered in relation to how an individual expresses who they are comes under ‘other attributes of sex’.
Where EA2010 S7 talks about ‘a process (or part of a process)’ – that process is not defined because it is individual to each person.It is not a reference to medical transition or surgery – no such reference exists. The ‘process’ is in no way defined in EA2010 or any associated guidance.
This is also stated clearly in the Equal Treatment Bench Book 2021 (p362) – ‘3. There is no need for the person to be under medical supervision or to have a gender recognition certificate.’
See also 5.
3) EA2010 only applies to ‘Transsexuals’
Again, wrong. They try this one on because older medical terminology / diagnosis used / uses the term transsexual, and they do it in an attempt to tie protection back to needing surgery as a qualifier.
It’s clear in 7(2) and 7(3a & 3b)
The gender reassignment characteristic considers anyone protected by it to be a ‘transsexual’, not that you have to be a diagnosed transsexual to qualify for protection, as is clearly stated in the explanatory notes below. You see where it says ‘only just started out’ – this means that people without a ‘diagnosis’ are covered :
‘The section also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.’
See also 5.
4) EA2010 doesn’t cover ‘crossdressers’
Again, wrong, although might be considered a grey area in some respects, because what really matters here is intent.
First off, remember that bit about ‘other attributes of sex’? Dressing in clothing of the ‘opposite sex’ is one of those other attributes.
Second, there’s nothing in EA2010 that indicates that reassignment needs to be a permanent, singular state – and we know from Taylor vs Jaguar Land Rover that Non-Binary people are protected (the case involved a gender fluid person, who won). Gender fluidity by it’s very nature is a permanent state of flux, or a permanent state of reassignment.
Intent means “why is that person crossdressing”, and it really matters. Let’s’ look at a couple of examples.
Example 1: A trip to the Rocky Horror Picture show by straight cis men crossdressing to take part? Not protected under S7 “gender reassignment”. Cis people dressing up arent trans because they play dress up.
Example 2: A trans or non binary person exploring their gender? Protected, because they fall under the “undergoing a process” part.
So, if you’re actually a cisgender crossdresser then you’re not protected by S7 – However..
That doesn’t allow someone to discriminate against you by calling you or referring to you as a crossdresser if you’re trans. If you are trans, you’re protected, and they’ve just added a hate crime to the list on top of discrimination.
An additional, and important factor to note is the principle of ‘discrimination by perception’. This means that if someone discriminates against you because they think you’re transgender – i.e. because you’re wearing clothes associated with the opposite sex, or ‘crossdressing’ – then they’re breaking the law.
5) You have to have a Gender Recognition Certificate to be protected
Again, Wrong.
We covered the essentials in 2 and 3, but remember there is no a reference to medical transition or surgery – the ‘process’ is in no way defined in EA2010 or any associated guidance.
It’s important to note that you can’t get a GRC at the start of your process – it needs varying levels of proof including two years worth of evidence and a diagnosis of gender dysphoria – where S7 protects people ‘proposing or undergoing’ gender reassignment as well as those who have completed it. You simply can’t get a GRC at the start of your gender reassignment process, it’s literally impossible.
This is also stated clearly in the Equal Treatment Bench Book 2021 (p362) – ‘3.
There is no need for the person to be under medical supervision or to have a gender recognition certificate.’
Exemptions
There are certain circumstances where it is legal to discriminate, both for and against trans people, and it should be noted that the baseline criteria for EA2010 is ‘inclusion by default’.
Broadly speaking, exemptions are allowed in competitive sport, single sex servicesSSS Single Sex Services See https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1470/147010.htm and to provide positive discrimination where trans people may be under-represented.
There has been a concerted push by trans hostile activists to challenge the guidance around ‘same sex spaces’ or ‘single sex services’ by claiming it has been misinterpreted and is beyond the scope of the original act and exemptions. This push relies on all of the deliberate misinterpretations listed above.
It’s something they call ‘Stonewall Law’ – which is Stonewall simply following the correct legal interpretation as defined by the EHRC, and has recently been upheld in court in AEA vs EHRC (May 2021), where the judge stated quite clearly:
‘The complainants interpretation of the Equality Act is is wrong in law’ and ‘In my view the claimant’s argument is an obvious absurdity’
(Note: AEA are yet another trans hostile organisation specifically set up to try and erode trans rights in the UK)
When exemptions are applied, they need to meet the following criteria:
‘A proportionate means of achieving a legitimate aim’ (Citizens Advice have a guide here)
But what do these mean?
A legitimate aim is the reason behind the discrimination, which must not be discriminatory in itself and it must be a genuine or real reason. The aim or the reason behind the discrimination must be fairly balanced (proportionate) against the disadvantage you’ve suffered as an individual because of the discrimination. This means it must be both appropriate and necessary.
‘Proportionality’ is a legal concept which originally derived from EU law. It has been confirmed as still applicable post-Brexit by the ForWomenScotland Judicial Review [2021] CSOH 31, which sets out the high bar required to justify unequal treatment.
So, given we know EA2010 operates on a basis of inclusion by default, it is not legitimate to blanket ban trans people from single sex services, becuase no legitimate legal reason exists to do so, and it is not proportionate.
‘Ew, trans people’ is not legitimate, and a blanket ban is not proportionate.
Ultimately, that’s all the trans hostile arguments boil down to – ‘We don’t like trans people and don’t think they should be allowed to exist’
Note : This page does not constitute legal advice, but rather acts as a layperson’s explainer for deciphering common trans hostile claims about the UK’s Equality Act 2010.
