Diversity, inclusion and the law – overstepping the mark

The culture of progressive politics and the power of lobby groups has led many organisations to inadvertently enact policies out of line with the law.

Diversity and the Law

Although none of the definitions of diversity and inclusion include legal terms, it is law that underpins the practice. Unlike the previous equal opportunities which was more overt in its legal foundation the word diversity does not automatically invoke a legal interpretation. Indeed the diversity and inclusion approach distanced itself from the law, which the private sector found to be too defensive and hard to get employee engagement. Yet without the equality laws there would be no diversity and inclusion. I have discussed this paradox in the chapter in my book Women’s Work Men’s Cultures

In one chapter I track how and why diversity and inclusion became the dominant discourse ousting equal opportunities and even the word equality from most corporate sector organisations. The public sector kept the concept of equality much longer and some organisations still do. They also have a much closer tie with the law as they are subject to the Public Sector Equality Duty and obliged to provide equality impact assessments for their policies.

However even in the private sector we know from when things go wrong that adherence to the law is a driver for any diversity policy whether overt or not. No company wants a publicised discrimination case or an equal pay case. It can be costly and is bad for internal morale and bad for the brand reputation.  The importance and influence of the law on diversity and inclusion was highlighted during the debate on quotas following the financial crash by the Treasury Select Committee on Women in the City in 2009.

 MP Sally Keeble, the only woman on the Committee pointed out that she was not aware of voluntarily given advances for women without a law being passed.  Protection against discrimination and harassment, equal pay, maternity leave and pay, flexible working all required legislation. And it is the nine characteristics protected under the Equality Act 2010 which are the ones on which organisations focus most.

Often as consultants in the D and I world we advise companies to go one step ahead of the law… be a leader not a laggard, we say. Offering more generous maternity and paternity benefits, promoting flexible working rather than waiting for it to be asked for, aiming for diverse teams etc. We don’t have quotas in this country but many companies internally have their own goal and this is to be applauded.

However many organisations have now run ahead with a particular diversity agenda, the transgender one, often advised by outside lobby groups and may now be vulnerable to the threat of  legal action. Some of the advice offered to organisations on trans issues is now being challenged through the courts. I refer specifically to the recent cases of Maya Forstater and the University of Essex which I discuss below but there are others. (Bayley v Stonewall)  

The Equality Act 2010 covers the same groups that were protected by existing equality legislation – age, disability,  race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity and added gender reassignment. There are obvious tensions between some of these groups e.g. some religious beliefs are at odds with our social and cultural expectations for women and sexuality to name but two. This is a challenge both for organisations and the law. In my experience it is far better for people to be able to discuss these different beliefs than for one discourse to dominate and silence others. The problems go underground. In recent years the demand for transgender rights has dominated the LGBT discourse. Unlike the demand for gay rights, which some argue is a similar situation, some of the demands of the trans lobby impact others’ rights… particularly women’s rights. And herein lies the conflict, which needs to be addressed but has instead become politicised and avoided.  

The protection of trans people under the Equality Act 2010, section 7 is covered by the characteristic of gender reassignment. It states that,

(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.

The word transsexual, commonly used for years and in the wording of the Act has now been rejected by lobby groups and many trans people as being outdated and too medical. Some still use it. Instead more generally the word transgender is used and this has a much broader meaning.  The current definition of this given by LGBT group Stonewall is:

Trans is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.

Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.

Since 2010 there has been constant pressure to change some of the language in the Act as it refers to transgender people and groups lobbied the Select Committee on Women and Equalities in 2015 as they debated the Equality Act 2010 and the GRA 2004. The characteristic they would prefer is gender identity e.g. Stonewall’s submission  demanded  a

  • A review of the Equality Act 2010 to include ‘gender identity’ rather than ‘gender reassignment’ as a protected characteristic and to remove exemptions, such as access to single-sex spaces

But at the moment gender identity is not enshrined in law – not in the Gender Recognition Act 2004 nor in the Equality Act 2010.

Unfortunately for years lobby groups and indeed government and public bodies have been giving organisations misguided advice on their trans policies which do not always correspond with current law but with law that they would like changed. So, many organisations, in good faith, are promoting the erroneous advice that gender identity is not only protected but more important and indeed can replace sex when it comes to data collection.

A recent example of how an organisation was given incorrect advice about the status of gender identity is provided by a case reported on last week. The University of Essex was taken to task for its policy which led them to cancel two speakers from an event for their ‘transphobic views’. The wording of the university’s policy on supporting trans and non-binary staff could have been used to lend credence to the idea that newspaper letters on trans issues, written by the two women, could amount to or lead to unlawful harassment.

Akua Reindorf, a barrister said “This policy is founded on an erroneous understanding of the law. The policy is reviewed annually by Stonewall and its incorrect summary of the law does not appear to have been picked up by them.

“In my view the policy states the law as Stonewall would prefer it to be, rather than the law as it is. To that extent the policy is misleading.”

The policy said it was unlawful under the Equality Act 2010 to discriminate against someone because of their gender identity or trans status. But Reindorf’s report said this did not accurately state the law, since “gender identity or trans status” are not protected characteristics; rather, the protected characteristic is gender reassignment. Nor were the examples of harassment suggested in the policy actually unlawful.

Another misconception given out in guidance is that the provision of unisex facilities is inclusive and indeed could be discriminatory if they are not provided. This is in direct conflict with the rights of women and girls to have their own spaces for certain activities for the purposes of dignity and safety. Again on the advice of lobby groups some organisations have changed their entire provision of toilet facilities to unisex, rather than providing an additional facility for any trans staff. A recent pronouncement by the government made it clear that the provision of single sex toilets was still expected of all buildings.

The provision of single sex spaces is still enshrined in law in the Equality Act and in certain situations even transgender people with a gender recognition certificate may be excluded:

“Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment.”

It can be seen in the request from Stonewall quoted above that it wanted the removal of  single sex exemptions, provide for in the Equality Act. But again this has not been enacted. Many organisations, including schools and hospitals have been advised that anyone who identifies as a particular sex has a right to use those facilities reserved for that sex. That is not exactly what the law says.

It isn’t just Stonewall. Even the EHRC, advised by Stonewall, was forced to reissue its guidance on this. As a result of complaint by Authentic Equity Alliance (AEA), earlier this year the EHRC amended its guidance which stated that transwomen with a Gender Recognition Certificate (GRC) must not be refused access to women-only spaces – guidance which actually contravenes the Equality Act. Here’s the actual statement:

‘Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single-sex services.’

Though that statement was removed from the EHRC guidance, it remains in a plethora of other EHRC guidance. This incorrect guidance had been in existence for six years.

 ‘The Government Equalities Office (GEO), which funds the EHRC, went even further. Its guide, ‘Providing services for transgender customers’, states that all trans persons [no GRC in sight here] should be free to select whichever facility they choose. The guide also states that not allowing a transwoman access to women-only spaces is direct discrimination – which is also incorrect. That GEO guidance has been in circulation since 2015.’ AEA.

The Maya Forstater case

Back in 2019 Maya Forstater’s contract with her employer was not renewed after she had expressed her belief on Twitter that biological sex was immutable i.e. you could not change sex. Belief in the immutability of biological sex has become for some individuals and organisations itself ‘transphobic’. Forstater claimed that she had suffered direct discrimination for having a belief that was protected under section 4 of the Equality Act 2010. She lost in the employment tribunal and on appeal last month two arguments were made: that this belief should be protected under the Equality Act 2010 and secondly a person should be allowed to express this belief as a freedom under Article 10 the Human Rights Act 1998. The judgement will be made in a month’s time. The details of the case can be found elsewhere. But in very important court intervention the EHRC supported Maya Forstater ‘s right to express her  belief that you cannot change biological sex. In her first interview since taking office, the incoming chairwoman of the Equalities and Human Rights Commission, Baroness Falkner said it was “entirely reasonable” for people to challenge the biological status of women who were born as men.

“The principles are absolutely clear, which is why we took a position to intervene in the case,” Baroness Falkner said, “The principles are that freedom of belief is protected.”

Baroness Falkner’s arrival signals the change in stance at the EHRC and indeed today, Sunday 23rd May it was publicised that the EHRC was leaving the Stonewall Diversity Champions Scheme.

The Maya Forstater case has had a muted response from the diversity and inclusion sector despite its obvious relevance. In fact I have yet to find one public comment. Why is this? It is ironic that despite the word diversity meaning difference the whole D & I industry feels it needs to speak with one voice on this topic although I understand it is fraught with strong views and emotions. Most equality issues are! I know for a fact that thousands of women and men want to say something but are also fearful of losing their job, losing clients for saying the wrong thing. Brands are nervous that they may be targeted by activists. I myself have posted articles on some of the cases on Linkedin which received hundreds of views but few comments or likes – only told to me in private.  People and it is still mostly women are not just being censored they are mostly self censoring in order to retain their livelihoods. Diversity and inclusion cannot flourish in a culture of fear and censorship. Perhaps with this recent spate of cases, it may be time for organisations to check their diversity policies for legality and inclusion and follow the EHRC’s recent lead and stand up for freedom of speech.