mschatelaine (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
mschatelaine) wrote2013-03-26 06:40 pm
mschatelaine) wrote2013-03-26 06:40 pm
Am I missing something?
In the light of what happened to Lucy Meadows, and the Julie Burchill article, and other more personal incidents, I have been studying the Equality Act 2010 (EA10). Now, I am not a lawyer, however I am an environmental manager and you don't go far or last long in that game without being able to read and comply with legislation.
The relevant section of EA10 is Chapter 2, Prohibited Conduct; section 26, Harassment:
26 Harassment
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) A also harasses B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if—
(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a) the perception of B; [i.e. if B feels harassed, B has been harassed - external guidance]
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5)The relevant protected characteristics are—
age;
disability;
gender reassignment;
race;
religion or belief;
sex;
sexual orientation.
The definition of 'Gender reassignment' is interestingly woolly:
7 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.
I would bet a clever lawyer could make a case for applying that to genderqueer people, especially combined with arguments in re. sex and sexual orientation, both also protected characteristics.
Also, Schedule 27, Repeals and Revocations, makes no reference to the Gender Recognition Act, which means that the provisions of the GRA are not superseded by EA10, but remain in place. I understand that some protections for trans people are enacted in later amendments of the Sex Discrimination Act, which is repealed, and it would be necessary to go through them to see if they are re-enacted in EA10. However, I see no reason at the moment to say that EA10 has removed protections from trans people.
I repeat, I am not a lawyer, however I would say that the treatment of Lucy Meadows was harassment as defined in EA10, in that it was "unwanted conduct related to a relevant protected characteristic [i.e. gender reassignment]" with the purpose or effect of "violating [Lucy]'s dignity, or … creating an intimidating, hostile, degrading, humiliating or offensive environment for [Lucy].
I would also say by the same language that Julie Burchill's article was also harassment. Note that unlike Section 27, Victimisation, the above section does not contain any language limiting the offence to being against a single person, not a group.
I am going to take this argument to my MP next week. If I'm wrong, please point out where, so that I can point out the lack of protection, otherwise I'm going to ask her to address the lack of enforcement.
For some reason LJ won't let me make the post open reading, so refer anyone who isn't a friend to comment on my DW account.
Also, since I'm leaving this open and may attract trolls, I am going to delete any and all comments that are inflammatory or offensive (my judgement). Let's play nice.
The relevant section of EA10 is Chapter 2, Prohibited Conduct; section 26, Harassment:
26 Harassment
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) A also harasses B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if—
(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a) the perception of B; [i.e. if B feels harassed, B has been harassed - external guidance]
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5)The relevant protected characteristics are—
age;
disability;
gender reassignment;
race;
religion or belief;
sex;
sexual orientation.
The definition of 'Gender reassignment' is interestingly woolly:
7 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.
I would bet a clever lawyer could make a case for applying that to genderqueer people, especially combined with arguments in re. sex and sexual orientation, both also protected characteristics.
Also, Schedule 27, Repeals and Revocations, makes no reference to the Gender Recognition Act, which means that the provisions of the GRA are not superseded by EA10, but remain in place. I understand that some protections for trans people are enacted in later amendments of the Sex Discrimination Act, which is repealed, and it would be necessary to go through them to see if they are re-enacted in EA10. However, I see no reason at the moment to say that EA10 has removed protections from trans people.
I repeat, I am not a lawyer, however I would say that the treatment of Lucy Meadows was harassment as defined in EA10, in that it was "unwanted conduct related to a relevant protected characteristic [i.e. gender reassignment]" with the purpose or effect of "violating [Lucy]'s dignity, or … creating an intimidating, hostile, degrading, humiliating or offensive environment for [Lucy].
I would also say by the same language that Julie Burchill's article was also harassment. Note that unlike Section 27, Victimisation, the above section does not contain any language limiting the offence to being against a single person, not a group.
I am going to take this argument to my MP next week. If I'm wrong, please point out where, so that I can point out the lack of protection, otherwise I'm going to ask her to address the lack of enforcement.
For some reason LJ won't let me make the post open reading, so refer anyone who isn't a friend to comment on my DW account.
Also, since I'm leaving this open and may attract trolls, I am going to delete any and all comments that are inflammatory or offensive (my judgement). Let's play nice.