“Sex” discrimination and trans* toilet issues, again

poster_campaign2012This week, the government of the tiny island that I call home launched their consultation into the second phase of the roll-out of discrimination legislation. I, of course, took a look at it.

Broadly, the proposals are the same as those enshrined within the UK’s Equality Act 2010 so I have no fundamental problem with what is being proposed. However, two things caught my eye.

The first is the concept of “sex” discrimination. Here’s what the consultation document says: “The Minster proposes that sex should be included as a protected characteristic under the Discrimination Law. This would make it unlawful to discriminate against either a man or a woman in relation to recruitment, promotion, treatment at work or any of the other circumstances in which discrimination is prohibited in relation to race.”

Maybe I am being picky, but I would argue that is it impossible to discriminate against someone on the grounds of their sex unless you have seen that person naked? Even then, if the person standing before you naked is intersex, can you be 100% certain that you are discriminating against the sex that you intend to discriminate against?

Of course, it is rare to see your work colleagues in the buff so, taking transwomen as an example, when the boss discriminates against them by offering them lower pay than their male colleagues, what is the trans* employee’s redress under a “sex” discrimination law? The boss has discriminated against them on the grounds that they are a woman but their sex (chromosomes) is male. Does this mean they aren’t protected at all?

Also, the reference in the paragraph above to “man” and “woman” is a reference to gender. “Male” and “female” reference someone’s sex.

I would rather see this part of legislation couched in terms of gender. Not would this be linguistically inline with the law’s intention, but it would also widen the spectrum of people who could be discriminated against. Why enshrine in law protections for “men” and “women” only? These aren’t the only genders. What about people who are genderqueer, androgynous, bigender, transgender? Do they not have a right to be protected from discrimination? And are they not likely to find themselves the victims of discrimination more often than either men or women?

I would rewrite the consultation as follows: The Minster proposes that gender should be included as a protected characteristic under the Discrimination Law. This would make it unlawful to discriminate against anyone for reason of their gender in relation to recruitment, promotion, treatment at work or any of the other circumstances in which discrimination is prohibited in relation to race.

The second item in the consultation that caught my eye was this paragraph under the section relating to gender reassignment: “Once a person has completed the process of gender reassignment they should, for all purposes, be accepted as being of their acquired gender. However, it may be appropriate to provide for exceptions to deal with situations during the period of transition involving privacy and intimate contact, for example, the provision of communal changing facilities or shared accommodation. It may also be appropriate to provide for occupational requirements where it would not be appropriate to employ someone who was going through the process of transition.”

Now, I know I’m not being picky when I say, “huh?” What does “completed the process of gender reassignment” mean? As there is no means for a trans* person on the island to acquire a gender recognition certificate from the government here, it cannot be the ownership of a GRC. Maybe it’s that old chestnut, you can’t be your acquired gender if you haven’t had the surgery? But, as we all know, surgery is an elective not mandatory part of transitioning. And, for transmen, which surgery are you talking about? This sentence is a nonsense. Gender reassignment has no end date. Trans* people should be accepted as their acquired gender from the day that they come out and request that family, friends and colleagues use pronouns relating to their acquired gender. End of.

The next part of the paragraph I find truly scary. This is a government document that is suggesting that exceptions should be made in “the provision of communal changing facilities” or “where it would not be appropriate to employ someone who was going through the process of transition”. I think I find the first bit particularly objectionable as it perpetuates the impression that trans* people are just waiting for an opportunity to pounce on unsuspecting cisgender innocents. I am also amazed that this issue is still coming up after all the controversy surrounding the “bathroom bills” in the USA.

Setting aside the implication that trans* people cannot be trusted to behave appropriately in communal facilities, these two things are possibly a trans* person’s worst nightmare:

a) that they will be forced to use changing rooms or toilets that do not match the gender that they present. Firstly, when did you last see someone’s genitals in a communal facility? Think about it. Would you even know if you were sharing with a trans* person? Secondly, we know that transwomen, in particular, are much more likely to be verbally and/or physically attacked when they are forced to use men’s facilities. I think the suggestion in the consultation is absolutely wrong. It is not up to other people to tell a trans* person which facility to use. It is up to the trans* person alone and they should be free to make the change when they feel comfortable.

b) that they will lose their job because of their transition. There is no job that I can think of that cannot accommodate someone’s transition. Even jobs such as hairdresser, masseuse, GP or nurse that involve a personal or intimate service are ones that are performed by both men and women these days. As such, someone who is transitioning can, if it is a requirement of their job, simply see clients of the gender appropriate to their acquired gender. This should not present anyone with a problem. After all, when did you last check whether your doctor had a penis or your hairdresser didn’t? How do you know that you aren’t already being looked after by a trans* person?

I applaud the attempts by my island’s government to make these protections law, but discrimination is all about language and its use. They must, therefore, be careful in their wording of the new legislation to ensure that it really does protect the people its is intended to.

If you are a Jersey (Channel Isles) resident and want to have a say, click here.

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