1/🧵 The good people of the Cabinet Office has found a copy of the Department for Education and Employment’s drafting instructions* for the Sex Discrimination (Gender Reassignment) Regulations 1999. * the Parly Counsel does vetting only in this case, so the instructions is to DfEE’s in-house lawyers
www.whatdotheyknow.com
2/ The instructions are just… fascinating? Well, every piece of public record I’ve uncovered on this subject so far has been fascinating, but this paragraph is exceptional. It contradicts the Supreme Court directly, comprehensively, and unequivocally.
3/ “For example, it is envisaged that the provision would allow a suitably qualified male to female transsexual to be able to take up employment in a single sex women's hospital. They could themselves be treated as a comparator by a male applicant.” This shows, quite bluntly, the EHRC is wrong. 4/ “The purpose of this provision is to enable a person who has gender reassigned to have all the protection of the Sex Discrimination Act and Equal Pay Act.” This directly contradicts the Supreme Court’s position that gender reassignment does not change sex. For the purposes of equality, it does. 5/ “it is envisaged that the provision would allow a suitably qualified male to female transsexual to be able to take up employment in a single sex women's hospital.” The genuine occupational qualification provision simply does not work without reading it as “gender reassignment changes sex”. 6/ ”They could themselves be treated as a comparator by a male applicant.” A trans woman being able to work at a women’s hospital shows that a cis male applicant who was rejected was not directly discriminated against. This is how the DfEE officials reasoned it in 1999. 7/ “It was therefore considered appropriate that this process would ‘end’ on completion of surgery; or, where that is not planned, the end of the 2 year trial of life test.” The completion of gender reassignment was treated as a medical fact here. 8/ Historically, the real-life test or real-life experience was a step in the treatment of GID, and it was a matter of fact that two years of it were considered sufficient, with sex change demonstrable through medical evidence. This policy was, in turn, carried over into the Gender Recognition Act. 9/ This is effectively the polar opposite of the picture painted by the Supreme Court. As a matter of fact, a person who has completed the medico-legal process of gender reassignment is of their acquired gender for the purposes of the Sex Discrimination Act/Regulations. 10/ So you can see that anyone whose “legal sex” was changed for all purposes under the Gender Recognition Act by means of a GRC would already have been treated as their acquired gender under the Sex Discrimination Act, the Regulations, and the Equality Act. 11/ It is clear that the Regulations referenced the medico-legal fact of gender reassignment, and it does modify the interpretation of sex and gendered terms. No reference was made to the religious or legal fiction of a so-called biological sex. The Supreme Court is wrong. PS/ This also explains why the Gender Recognition Act amends the Sex Discrimination Act and the Regulations in a very particular way. They recognised that both the Gender Recognition Act and the Equality Act relied on the same criterion (of a medico-legal fact). Commentary: Lord Reed was quite blind. He believed that Parliament established a settlement on trans rights in 1999, under which trans people are denied recognition but still receive separate, weaker protection for gender reassignment (as a formal term for transness). The reality, however, is that the law was changed on the assumption that the minister was empowered under the Community Act not only to address gender reassignment discrimination but also to alter the definition of sex in the Sex Discrimination Act through Regulations. It is also important to note that this was done by negative procedure, likely by one or two lawyers at the DfEE, who are probably still around. The notion that there was a Parliamentary settlement, or that the definition of sex cannot be changed by EU/EEC Regulations, is simply wrong. More commentary: it is also interesting how the DfEE also linked the completion of (or undergone) gender reassignment to “living permanently in the new gender” The Supreme Court dismissed living as a man or woman under the GRA as merely a matter of paperwork, while effectively ignoring the same question in the context of gender reassignment. The instructions now show that both Acts have, in effect, the same criterion. Labour must be pressured. The Equality Act clearly does not refer to biological sex, yet they concealed the true legal position from both the court and the public. We had limited recognition under the 1999 Regs, before the GRA was enacted, so the Equality Act cannot disapply s9(1). The court was presented with a binary choice between certified sex (which they absurdly renamed “certificated sex”) and “biological sex”. These documents clearly show that this framing is wrong. The third option is that the Equality Act and the SDA incorporates gender recognition.