The Government has finally responded to the House of Commons Women and Equalities Committee Report on Transgender Equality that was published in January 2016. This wide ranging report recognised that, despite welcome progress in recent years, our society is still failing to support the rights and interests of trans people. The Committee noted that the earlier 2011 Advancing Transgender Equality action plan remained largely unimplemented, and they required the Government to agree a new strategy, which it can deliver with full cross-departmental support, within six months.
Almost six months later, the Government response was underwhelming. The tone was marked by phrases such as “we will keep these issues under consideration”, “we will continue to monitor the issue”, and, when responding to issues of discrimination under the Equality Act, “we will keep this under review and will continue to listen to and monitor people’s experiences of discrimination, harassment or victimisation”. However monitoring does not equate to action and, whilst the Government claims that transgender issues remain a priority, the promised action plan indicated further reviews rather than actual legislation to improve the lives of transgender people.
As trade unionists, we have a specific interest in workplace issues. Discrimination against trans people remains rife. Earlier this year, Total Jobs reported a Survey of Trans Employee Experiences. Their findings were stark: 60% have experienced transphobic discrimination in the workplace, and 53% have felt the need to hide that they are trans from colleagues. 36% left a job because the environment was unwelcoming. Trans people face extra hurdles when finding work and, when they do secure work, they find that their careers can be hampered by employers reluctant to deploy them in public facing roles. To quote two respondents to the survey: “I was turned down for a job as the employer was worried about what customers might think;” and, “My boss stopped sending me out on site after the transition.” Discrimination can be hidden behind comments such as “I’m sorry but on this occasion another candidate has something extra to offer” but it is still discrimination.
Evidence of discrimination is widespread and was also reported to the Women and Equalities Committee. They noted that, despite recent legislation, trans people still face discrimination in employment and other aspects of their lives. Even the scope of the Equality Act is unclear as the protected characteristic is Gender Reassignment, rather than Gender Identity or some other term that would definitely include non-binary and dual role people. When giving evidence to the committee, Caroline Dinenage MP, Parliamentary Under-Secretary for State for Women, Equalities and Family Justice, suggested that non-binary people were protected under the discrimination by-perception provisions of the Equality Act. However the lack of relevant case law leaves people vulnerable and uncertain of their legal position, so they are reluctant to initiate legal proceedings in order to challenge discrimination and protect their rights. Cases are certainly not being brought to Employment Tribunals.
It is disappointing that, six months later, the Government’s response is to simply repeat Ms Dinenage’s assertion regarding discrimination by-perception. They claim that provision of a protected characteristic of “gender reassignment” is fully compliant with their obligations under the Equal Treatment Directive (2006/54/EC). In response to the workplace discrimination that is so widely reported, they merely cite guidance for employers that was produced by the Government Equalities Office in partnership with Inclusive Employers. Whilst the provision of advice by Government is to be welcomed, it places no requirements on employers to follow it, or even make themselves aware of it. The Government promised to keep workplace issues under review and continue to monitor the situation, but that is no substitute for legislation to address the situation. Discrimination needs to be tackled, not merely logged and recorded, and the Government should drive the agenda forward by improving and updating the legislation. It is regrettable that they have chosen not to do so.
However, any proposals for legislation may have been overtaken by events following the EU referendum on June 23. The implication of the result is likely to drive the Government’s agenda for years to come. In these very uncertain times it is more important than ever for trans people, just like everyone else, to join a trade union and organise within their workplace. Whilst Government reviews the situation and makes sympathetic noises, discrimination continues to occur. However, by organising and working collectively, workers can bring about change in their own workplaces, and improve the environment for everyone. Employee action should not substitute for Government action, but we cannot wait when Government is slow to act.
This article was first published by the TUC Touchstone Blog on 26 July 2016: While government stalls, workers must organise for trans equality.
Debbie Hayton 