And one more for the road

So i am trying to put together a pitch and then article for the Grauniad on intersex issues. Stories, cases and the like would be great – though i already have some.

However, i am utterly puzzled by a gem i obtained today from the Home Office in response to an open question (something along the lines of “what have you ever done for the intersex minority).

After a day and a half a very short response bounced back:

Other than noting that there is an ongoing review of trans issues, due to report in the autumn (and implying that intersex might be part of that) the spokesman said:

“Current legislation gives intersex people protection from discrimination under certain circumstances – when they are discriminated against because they are wrongly perceived to have one of the protected characteristics under the Equality Act (such as gender reassignment, sex, disability amongst others).”

Huh? What does that mean. It sounds suspiciously like, if you are intersex and discriminated against and that discrimination is because someone thinks you are trans or disabled or whatever…then you have grounds for using the law.

He stressed, in further explanation, that the Equality Act covered those “perceived as” having a protected characteristic. He gave as example someone perceived to be male, but using the female facilities at a swimming pool.

I think he meant that even if you were intersex, that you would be able to object because of the misgendering.

Whilst i was speaking to him, this made sense. The moment i put the phone down, it stopped making sense.

So i’ll throw it open. Anyone have any idea what the above statement means and…does anyone know of any instances where an intersex individual was able to use the Rquality Act or its predecessors by claiming that they were perceived to have or not have the protected characteristic of another group?



5 Responses so far »

  1. 1

    They said something similar when I suggested to them that the Act and their interpretation of it was completely useless to non-binary and GQ people. Their idea was that anyone bigoted enough to attack them would be ill-informed enough to think of them as trans, and that they would be accordingly covered. The Act, remember, does not merely protect people in a protected category, but also anyone mistakenly perceived as belonging to that category – eg straight men who are assumed to be gay.

    I pointed out that, in the non-binary or neutrois context, this was incredibly disrespectful of the identities of the people concerned, and they gave me That Look. (The one that goes, this person has started Speaking in Tongues and I am not listening LaLa)

  2. 2

    Not quite an example of that but maybe a correlation which has a similar legal mechanic? This is anecdotal from a trainer working for StophateUK. Before gender identity was protected, a trans woman began an action over discriminatory language from a colleague. Her union was keen to bring the case, but the only legal basis possible for the action at the time was sexuality. Fundamentally, to win, she had to accuse her gay male colleague of homophobia against her. Her union was still confident of a victory but she refused to run with the legal fiction and dropped it. I will try to get a cite for this, but the case may not have run far enough to allow me to have names etc.

  3. 3

    The application of this kind of stuff leads to such ridiculous anomalies as the above, but I kind of get the purpose. It’s like being beaten up for being a Muslim when you’re actually Jewish, it’s still an Islamaphobic attack even though thy chose the wrong target.

  4. 4

    Avory said,

    I’m guessing the idea is that a lot of discrimination against intersex people, especially those out as intersex, would fall under existing law because the average person would think they were trans OR you could say that the discrimination was sex discrimination. I think it’s sort of like the argument that many have made in international law for sexual orientation as a recognized ground: technically, discrimination due to LGB status falls under sex discrimination, but it takes some additional steps and it’d be more clear to just add sexual orientation.

  5. 5

    Rob Clucas said,

    “if you are intersex and discriminated against and that discrimination is because someone thinks you are trans or disabled or whatever…then you have grounds for using the law” – yes, that corresponds with my understanding of the Equality Act. Unless your circumstances fall within the specified protected characteristics – perceived or actual – there is no case for discrimination.

    Incidentally, in my opinion, the EA doesn’t cover all trans people. The protected characteristic is gender reassignment: even a very flexible reading of reassignment doesn’t seem to cover genderqueer or genderfluid folk.

    Jane, I’m interested in contacting you about your piece in the Guardian ‘Believing in Bondage’ (16 Aug 11), specifically to ask whether you have the reference number for the case?

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