I think I first remember hearing the phrase ‘its political correctness gone mad’ in a spitting image sketch in the 1980s. I can’t remember what the sketch was about – but the Daily Mail was mentioned.
As an employment lawyer who spends a lot of time training managers on discrimination issues, I know that ‘PCGM’ features strongly in many of their initial concerns about getting to grips with discrimination law and I hope that the training I give helps to dispel some of the myths that have grown up around what, I insist, is a very common sense area of the law.
Sometimes, however, the equality industry (and there is one) is its own worst enemy. An article in the Sunday Times today reports that the Equality and Human Rights Commission is warning schools that a uniform policy that requires girls to wear skirts is potentially unlawful because it discriminates against transsexual pupils. The article goes on to bring in ‘Harriet Harman’s Equality Bill’ and rather gives the impression that one of its main provisions is to interfere in the right of schools to have a uniform policy.
This is not a made up story – well not exactly. The Equality Commission has indeed published guidance for local authorities that seems to make this claim and the guidance is being issued in anticipation of the Equality Bill which does change the law in relation to transsexuals. But a bit of context and perspective is needed.
First, the Equality Bill. The Bill widens slightly the definition of gender reassignment to remove the need for the process to be carried out under medical supervision. It also extends the public sector duty to promote equality (which currently covers only race, gender and disability) to cover gender reassignment (among other protected characteristics). Most importantly the concept of indirect discrimination is extended to cover people who have the protected characteristic of gender reassignment.
Indirect discrimination
This is relevant to the uniform issue because a school requiring girls to wear skirts is not directly discriminating against transsexual people – they are not being treated less favourably on the grounds of gender reassignment. Rather, the school has a rule which is applied to everyone – ‘wear gender specific clothes’ - which places transsexual people at a particular disadvantage (although the definition of transsexual may be a problem here - see below). This is potentially indirect discrimination and will be unlawful unless the school can show that it is a ‘proportionate means of achieving a legitimate aim’. This means that provided the school can explain the aims behind its uniform policy and show that the policy is a proportionate way of achieving that aim then the rule will be lawful even if it disadvantages transsexual people.
Equality Commission Guidance
The guidance that the Sunday Times focuses on comes in a 63 page document dealing with the provision of goods facilities and services to trans people and much of what it says is useful common sense stuff. Only six pages deal with schools. Only 3 paragraphs and a good practice case study deal with the uniform issue. Congratulations are due to the Sunday Times for finding the ‘PCGM’ story tucked away in such a large document.
There is a problem with the guidance, however. It states ‘Requiring pupils to wear gender-specific clothes is potentially unlawful’ (page 43). Leaving aside the obvious qualification in ‘potentially’ the startling thing is that while the guidance seems to be saying that such a policy is unlawful because of its effect on transsexual people the reference it gives for that statement is a previous piece of guidance relating to sex discrimination not gender reassignment discrimination. Even that guidance is more than a little suspect as in a work context the courts have consistently upheld dress codes and rules of appearance that have different requirements for men and women. To suggest that they would take a different view in relation to school uniforms is entirely speculative.
Closely examined, then, the Equality Commission guidance does not in fact argue that a uniform requirement can amount to unlawful gender reassignment discrimination. And it is a good thing that it does not because there is a serious flaw in such an analysis. A transsexual person is defined in Clause 6 of the Equality Bill as a person who:
‘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’.
It is not just someone with gender dysphoria – it is someone who has at least decided to undergo gender reassignment. The Sunday Times quotes the Equality Commission as saying that individuals are protected “regardless of whether or not they intend to undergo, are undergoing or have undergone gender reassignment” however that phrase does not refer to the Equality Bill but the protection given by the Human Rights Act – you can tell because the phrase comes seven lines below the title ‘Human Rights Act’.
Blurring Human Rights and Discrimination Law
The Human Rights Act certainly protects people with gender dysphoria – but only in so far as it protects everyone. There is no specific human right being quoted here and there is no reasoned argument given to the effect that a school uniform actually interferes with the human rights of transsexual pupils or students. There is certainly nothing in the case law of the European Court of Human Rights which suggests that they would take such an approach.
Those parts of the guidance that describe ways in which schools can be sensitive to the needs of young trans people are absolutely fine and most open minded people would have no problem with them. However it is wrong to suggest that there is a realistic legal basis for saying that school uniform policies are illegal and yet the news story is based entirely on that suggestion.
So the Sunday Times have got it wrong – but the Equality Commission have not made their advice as clear as they should. Unable to say that a requirement for girls to wear skirts was unlawful they have hinted that it might be and then fudged the legal issue. By overegging the legal side of the argument they have allowed another ‘PCGM’ story to hit the press and have everyone rolling their eyes and laughing cynically at the antics of the PC brigade. When that happens the cause of true equality suffers another blow.
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