Incompatible views on equality legislation

Those following my correspondence asking of the Equalities Office why the exceptions in the Equalities Act were there might like to see how it ends. This is the reply to the last message I sent, and further follow-ups to them don't seem productive as I think we're talking at cross-purposes. (I do have another plan)

I've cut the reply up, because it's a long message.

In reply to your further e-mail, I should say at the outset that the Equality Act 2010 is not drafted in terms of exceptions to harassment protection, so my reply does not use that terminology. Rather what certain provisions in the Act do is to disapply the protection from harassment as provided for in section 26 of the Act.

I am not at all sure what the legal difference between an "exception" and a "disapplication" is, but okay.

It may be helpful if in answering your questions, I first provide some background to why there is any specific protection from harassment in our discrimination law at all.

The Equality Act 2010, as with the discrimination law currently still in force, contains a patchwork of protection against conduct which would be considered to be harassment. This has happened as a freestanding right not to be harassed has been introduced gradually into domestic law to comply with our European legal obligations in relation to specific fields and specific protected characteristics.

Prior to the introduction of the freestanding right, behaviour which amounts to harassment was outlawed by the prohibition on subjecting an individual to a detriment, which is one method of committing direct discrimination. Therefore the detriment provision covered most acts of harassment related to all relevant protected characteristics - certainly in the sense that the word is commonly understood. The detriment provision remains part of the law, which means that where a victim of harassment cannot bring him/herself within the definition of the freestanding right, that individual can nevertheless argue the offending behaviour amounts to a detriment.

It is for this reason that there is not blanket protection from harassment in the Equality Act. This explanation of the current position in domestic discrimination law addresses your questions 1 to 3.

This particular reasoning strikes me as rather backwards, but I'll look at it in more detail later.

Returning to the first part of your e-mail, this deals with the practical application of the law. With regard to how the law has been working in practice, since 1986, there have been successful tribunal cases where victims of sex-related, sexual and race harassment at work were found to have been subjected to a detriment. However, we are not aware of any cases of this nature outside employment (which includes schools) reaching the courts since the introduction of the Sex Discrimination and Race Relations Acts in the 1970s, nor since specific protection was first introduced into domestic discrimination law in 2003. So the evidence suggests that pupils are not looking to discrimination law to deal with these issues.

It never even occurred to me, when I was being bullied at school, that there might be a provision in the law that prevented it. Certainly, applying the letter of the law to school bullies is something that gives confusing results. I can't imagine that there would have been any support should I have decided to pursue either a civil case for damages or a criminal case against the bullies at my school, nor could I have afforded a sufficiently good lawyer on my pocket money anyway.

In the case of LGB and/or trans pupils, who might not be out to their families, legal action (or any form of official action) takes on even more difficulties.

At any rate, this seems more to be an argument for not applying any harassment protections to pupils (or indeed any legal rights at all, if you take the argument much further), not for specifically excluding homophobic, transphobic and religionist harassment.

I shall turn now to why we believe the provisions in the Equality Act are adequate. We recognise that the detriment protection would not cover cases where the employer treats everyone equally badly, for example where he or she subjects both men and women to sex-related verbal abuse but only a woman finds this particularly offensive. However, there is no evidence that this is the sort of situation which lesbian, gay, bisexual and transgender (LGB and T) people are concerned about outside employment. What people are worried about are homophobic bullying and harassment which would be covered by the detriment protection because it is only LGB and T and not heterosexual people who would be subjected to such abuse. Similar arguments apply in relation to instances which might be considered to be harassment-like conduct related to religion or belief.

Nope, no evidence at all that trans people are concerned about this outside employment. Definitely none. They got a lot of letters about this at the time, and amendments were tabled in Parliament (though they sadly didn't get scheduled for debate).

The idea that people who are straight and are known to be straight are not subjected to homophobic slurs is also in obvious denial of the facts. This happens all the time. It's indisputably nowhere near as serious in effect as the same slurs being used against LGB people, but it's still not right. Anyway, the Act provides the same (lack of) protection to heterosexual people.

We do not therefore think there is a gap between the LGBT harassment protection offered by the detriment approach and the protection offered by the freestanding right. We are clear however that in every case we can envisage, such acts would constitute less favourable treatment or detriment and therefore be covered by the direct discrimination provisions in the Equality Act.

As for the intent of the Act, what both the Act and the Explanatory Notes say is effectively that where a person is subjected to harassment-like conduct, they can bring a claim of harassment, where there is express harassment protection or a claim of direct discrimination where express harassment protection does not apply, but a claim cannot be made for both harassment and direct discrimination on the same facts.

Turning to your question number 4, the harassment provisions in the Act give effect to specific obligations in certain European Directives, namely Directives 2000/43/EC, 2000/78/EC, 2002/73/EC and 2006/54/EC. The harassment provisions in the Act are therefore not redundant.

This still doesn't make sense. If the provisions in the Act aren't redundant because they're needed to implement European Directives, then this means that they provide some protection over and above the direct discrimination protections, even if the Equalities Office has a self-admitted lack of imagination in this area. In which case, why not protect against all forms of harassment in this way?

Furthermore, "we're only protecting people against harassment because the EU says we have to" doesn't strike me as the best attitude for an Equalities Office to have. I would expect - of all offices of the government - them to be taking the most proactive approach. (More worryingly, they probably still are).

There seems to be a major difference in approach here - I think discrimination on unfair grounds should be illegal in all its forms. The government seems to think that only certain forms should be illegal, those that have received the most complaints in the past (trans people are going to lose that numbers game every time, of course), regardless of what this says about the actual amounts of discrimination occurring, or whether even a small amount should still be illegal.

At any rate, this seems to be the answer to the question - to get harassment protections extended to LGBT people and religious groups will require an EU Directive to give the government no choice.

I have three MEPs, one from each major party, so that seems like a good place to start. More on this once I've drafted the letters...

Friday Links

• Too much to say for myself: UK Home Office goes tabloid
• [trigger warning] Mind Blog: Another assault
• Jess McCabe at The F-Word: US suffragette parodies the opposition
• Simon Woolley at Operation Black Vote: McCarthyism + unregulated press = Rampant Islamaphobia
• sarahlizzy at Questioning Transphobia: Ben Summerskill of Stonewall UK Loses the Plot on Marriage Equality
• [trigger warning] Melissa McEwan at Shakesville: Well, Gee, I Hope He's Okay!
• Sunny Hundal at Liberal Conspiracy: Save a family from deportation to Iran!

You wouldn't discriminate against someone else like that

It's very common for people faced with one form of discrimination to say something like "you wouldn't say/do that about/to [other group]". In practice, the other form of discrimination used in the comparison is almost always racism. Here's a recent example from Stonewall UK (The F-Word have a screenshot and some more context).

It's a terrible argument.

The basic assumption behind the argument is that racism is taken more seriously than homophobia (since the recent example is those two, I'll use them in this post, but this all generalises to any form of discrimination). The evidence presented for this is generally that the use of racial slurs is condemned, but the use of homophobic slurs is not condemned (or at least not as strongly)

Oppression Olympics

The first thing wrong with this is the standard "Oppression Olympics" problem. The nature of oppression means that it's not meaningful to ask which is worse. This does not mean that in a particular society all oppressions are equally bad, just that they're all linked together in such a complex way that even determining where one sort begins is tricky. Weighing up the effects across society of two sorts to determine which is "worse" becomes impossible. Even if it were possible, there wouldn't be a lot of point to doing so - once you know "severe, sometimes fatal", it's usually a waste of time to go around putting more precise numbers on it.

When you go from effects on society to effects on the individuals that make up society, the "which is worse" question gets even more absurd.

The line of argument of course generally ends up erasing people who are both BAME and LGB - if the response to "you wouldn't do that to a black person" can be "but I just did" the argument clearly doesn't work, but often the people using the argument assume that people can only be one or the other.

An argument that generalises to "You wouldn't discriminate on one ground in exactly the same way that you discriminate on other grounds" might be true but it's not particularly useful, since of course there are differences between oppressions beyond exactly which part of humanity is on the sharp end.

Only true if it isn't

A second problem is that the argument relies for its effectiveness on the basic assumption being true, but relies for not being obviously absurd on the basic assumption being false. Let's swap out racism for something that really is generally considered unacceptable in this country. "You wouldn't steal from a charity, so why do you use homophobic slurs?" or "You wouldn't insult people for their eye colour, so why do it for their sexuality?"

Or keep it as racism, but use an archaic slur - "You wouldn't say [obscure 15th century racial slur], so why do you use [homophobic slur]". It still doesn't work as an argument, because the whole force of the argument is in the instant shock value and familiarity of the racist slur.

But if the racist slur actually has shock value, then that's because racism is a problem. And if racism's a problem (which it is), the first half of the argument that "you wouldn't use a racist slur" isn't actually generally true. And, of course, using a racist slur purely for its shock value is exactly the sort of behaviour the argument is saying is unacceptable.

It's right about the "unacceptable" bit, though it'll be a while before that's generally agreed on.

A low standard

A third problem is that since racism is still a serious problem within society regardless of the exact severities of its various manifestations. A campaigner against homophobia really does not want to have "Why don't you discriminate against us more like you discriminate against BAME people" as their argument.

This brings out the assumption behind the argument - that because you "can't say X any more", racism is over or at least substantially weakened. It's not a good claim.

In praise of unreasonableness

So, the Pope recently visited the UK, though thankfully not Durham, and there were numerous protests. As head of the Catholic church he's said a large number of extremely unpleasant things, and endorsed many anti-women and anti-LGBT views. Then there's the church hierarchy's treatment of numerous abuse cases across the decades. The protesting was hardly surprising.

One of the consequences of this, as well as the general justified sentiments against the Catholic church hierarchy and the Pope personally based on their roles in covering up abuse, recommending discrimination, and so on, has been various criticism of Catholicism and religion in general, and then from that general attacks on the idea of people believing in anything "supernatural" (including deities). There's a very short slippery slope from criticising the genuine problems with the Catholic hierarchy to anti-religious discrimination (protests are not a good place for fine distinctions like that, either, unless you're very careful).

The atheist criticism of religious belief is - in their¹ own words - that it is "not reasonable", "not rational" or "not based on the evidence". The three phrasings are given much the same meaning in practice, and the disablist connotations of irrational (and the general insult of unreasonable) are generally desired.

I entirely agree that there is not sufficiently strong scientific evidence for the existence of anything that could reasonably be described as a deity, but that's really besides the point, and the use of "not reasonable" or especially "not rational" as shorthands for "not based upon scientific evidence" is extremely problematic.

I'm going to use "unreasonable" (note the quote marks) as a shorthand for "not based on scientific views of evidence and logical conclusions from that evidence" to save space, because even though that's not quite the normal meaning of the word, it's the meaning given to it in these debates. It's true that given that definition, belief in any deity or non-deific supernatural² occurrence is "unreasonable". The problem is that so are rather a lot of other things that are commonly held beliefs and take place entirely within the natural realm.

Ethics and morals

Ethics and morals are unavoidably "unreasonable" (this is why straw-atheists don't have them). It is not possible to prove solely by the application of evidence and logic that a particular moral stance is superior to another stance.

Once you make some assumptions about what the purpose of having morals in the first place is - to keep society intact, or to maximise some measure of happiness, or to prevent certain behaviours, or whatever - you can then "reasonably" use evidence and logic to make a decision about the best ethical and moral decisions to achieve that purpose. But since your purpose was selected arbitrarily, and in practice based on socialisation and other factors external to your "reasonableness", it is itself "unreasonable".

Anything else that involves a values judgement - aesthetics, what to have for breakfast, etc. - ends up with the same situation.

The scientific method

The scientific method - in extremely concise outline - is that you make a theory to explain an aspect of nature, carry out experiments to test the theory, and refine or abandon the theory according to the results of the experiments. The idea is that over time the incorrect theories will be contradicted by experiment, and the correct ones won't, and the accuracy of the set of all current theories will therefore on average increase over time.

There's lots of added detail in practice to make sure that you don't throw out correct theories, or hang on to incorrect ones, in an attempt to get to the real right answer faster, but that's not really relevant here.

The scientific method is something I personally have a very strong belief in (the basic principle, anyway - I have quite a lot of criticism of some of the details of implementation, especially in some fields of study). It is, however, an "unreasonable" belief - I cannot prove, from the evidence, that the scientific method works.

I do have a straightforward circular argument in favour of the scientific method (summarised: "it seems to have worked so far"), but it's generally not considered "reasonable" - or indeed reasonable - to use circular arguments.

Free will

This might fall within the scope of "supernatural" for some people, but it need not. I believe that I have free will, and that so does everyone else. I don't even think it's philosophically interesting to discuss alternative situations where free will does not exist because I don't believe there's a self to exist without the existence of free will - there's just particles moving along their probabilistic paths.

I have no evidence of a scientific sort for this, and only a circular argument similar to Descartés "I think therefore I am" for non-scientific evidence. It's not a "reasonable" belief, but I think it's an entirely reasonable belief given the alternatives.

So, in praise of unreasonableness

The "sceptical atheist" community is right that religious beliefs and faiths are not "reasonable". Where they're wrong is the giant leap many of them take from that to "and therefore a sign of lack of intelligence / moral inferiority / mental illness / closed-mindedness / other insult of choice." and in the implication that one can get by entirely on "reasonable" beliefs.

This results in the usual problems that happen when one group of people believes another group to be inferior to it. These are all of course criticisms that can be applied to religions too, but atheists claim to be above the "irrational" actions of religion.

Firstly, while in the UK atheists don't have the structural power to discriminate against the default religion of Christianity (whatever the Pope might say), they are by a significant margin the second-most powerful belief group and so can quite happily contribute to the oppression of believers in religions lower down the local kyriarchy. See also France and the way an aggressive anti-religious message (masquerading as secularism) has been mixed with racism for a wholly counter-productive ban on Islamic veils.

Stereotyping the extremely diverse beliefs of a billion co-religionists to their most extreme members lends itself to being a cover for other forms of bigotry (most directly racism and disablism, and a claim that one is being "unreasonable" or "irrational" is an extremely common silencing tactic everywhere).

I don't want a situation where atheists end up at the top of the pile instead. This isn't going to happen any time this century even in a secularish country like the UK, but it shouldn't even be a goal - the goal should be to end religious privilege and discrimination, but that's a goal that many atheists would reject as treating "unreasonable" beliefs as valid.

Secondly, it makes it more difficult to get co-operation between atheists and religious people on mostly unrelated social justice matters. This also makes it harder to work together on matters related to the conduct of religious organisations where, to return to the start of this post for an example, the majority of both atheists and UK Catholics have serious disagreement's with the Catholic hierarchy's decisions on abortion, contraception, LGBT rights, women's rights, and so on.

You end up with the usual problem of intersecting oppressions, though perhaps with the default in the other place, where the existence and experience of Catholic LGBT people gets erased by both their own religious hierarchy and by their supposed allies, or action within religious communities in favour of women's equality is dismissed as irrelevant because it takes place within a religious setting.

There seems to be an attitude that because religious people have an "unreasonable" belief in one area, there's no point in trying to work with them in other areas despite this disagreement, but instead one must convince them of the truth of atheism first. This never ends well. It can also lead to an approach where people try to find scientific justifications for ethical decisions, and I've looked at one example of the problems with that approach before. Science is a valuable tool for humanity, but it's not supposed to be used for everything.

Thirdly, as I've said above, it misses the point. I don't believe in social justice because I have scientific standards of evidence that the world would be a better place without the kyriarchy - I don't even know what a non-kyriarchal world would look like in practice - but because I have what would be insultingly dismissed as "faith" that it would be better (according to my own ethical values) than what we currently have. I'm happy to hold that "unreasonable" belief and work towards it. Having decided "unreasonably" that this is a goal, my approach is going to be at times very much based on scientific evidence, of course, but that doesn't make the goal itself scientifically "reasonable".

Let's be "unreasonable", because there is too much that is important that cannot be dealt with "reasonably". Let's let other people have their own "unreasonable" beliefs, if they don't cause harm; and let's focus on the harm caused, not whether that harm has a scientific or an "unreasonable" backing³, if they do.

Footnotes

¹ While my personal beliefs in deities and other supernatural things are very similar to those of a sceptical atheist, and while I agree that there is no scientific evidence for deities and the supernatural, I don't at all agree with the conclusions generally drawn from this, so I'm not using "our" here.

² The definition of "supernatural" versus "natural" is hardly the dichotomy that it's made out to be - see Clarke's Third Law. Determining whether a "supernatural" event is really "outside nature" or just a sign that some previously reliable theories need refining would in practice keep people busy for centuries or longer. Meanwhile, by definition, anything genuinely supernatural would not be amenable to scientific study.

³ People asserting a scientific backing for their claims, when their claims do not meet general scientific standards, should be criticised for this, of course, and claims that are purported to be scientific can of course be meaningfully analysed by scientific methods.

Friday Links

• Dani Alexis at Smart Angry Women: “It’s Not That Bad,” Except When It Is
• [trigger warning] Cara at The Curvature: U.S. Border Patrol Agents Charged with Rape, Assault, and Torture
• Wildly Parenthetical at Hoyden About Town: Sexting and Slut-Shaming
• Helen G at Bird of Paradox: Dual-gender ID cards update: no, the scheme’s still not been scrapped
• Same Difference: Diplomat Denied Overseas Job Because Lip Speakers Are Too Expensive For The Foreign Office
• Lisa at Sociological Images: Media Treatment of Waterboarding: Is it Torture?
• Richard Sudan at Operation Black Vote: Demands for inquiry after new police restraint death
• Where's the Benefit?: Cuts to DLA 'The easiest bit of welfare reform to sell'
• Stuart White at Next Left: Nick Clegg on welfare: is this liberalism?

Coalition continues not taking rape seriously

[trigger warning]

The government has shelved a study into police handling of rape cases, to "save money". The total expected cost of the study was £441,000.

Meanwhile, Essex Police have been strongly reprimanded by the Independent Police Complaints Commission for, essentially, doing absolutely everything wrong when investigating a rape case. In summary: a woman reported twice - several months apart - that someone had broken into her house and raped her. On both occasions, the police reported that "no offence had occurred", without checking for actual evidence, because they were sexist ablist bigots (or as the IPCC puts it were "adversely influenced by the woman's mental health history"). When the suspect was finally arrested he admitted to the crime.

But I'm sure there's no need for an actual investigation into police handling of rape cases and consequent steps to get them to consistently do it properly. Baroness Stern's report pointed out that actually following the existing guidance would be a very good start, of course, but I doubt that £441,000 - a tiny amount in the context of government spending - will be going towards that either.

Meanwhile, the report the government was promising on "why anonymity for suspects is a good idea" has been delayed yet again, until October. This is hardly surprising, of course, given the lack of evidence there actually is for this claim, and the fact that - when I asked in August - the ministry had no evidence at all regarding the number of suspects their current proposal would affect or the likely effect on media reporting their proposals would have.

It was fairly clear right from the start that they didn't actually have any evidence backing up their proposal, but it's always useful to have more official confirmation of this.

Harming fat people: why the government thinks it's okay.

After asking for some more details about the research behind the National Child Measurement Programme (NCMP), I got back some research papers.

Here's the papers I got. Full-text availability is variable.

1. Parents often do not recognize overweight in their child, regardless of their socio-demographic background (full text free)
2. Telling Parents Their Child's Weight Status: Psychological Impact of a Weight-Screening Program (full text free)
3. Recognition and management of childhood overweight and obesity by clinicians (full text requires subscription)
4. Can we recognise obesity clinically? (full text requires subscription)
5. Health consequences of obesity (full text requires subscription)

The second paper essentially describes the pilot study of the NCMP, and is an interesting read. One of the points made in the abstract, of course, is that "However, a minority of participants found it distressing, which highlights the importance of managing the process sensitively, particularly for families with overweight children.", and it's fairly clear from the news reports that the process has not been managed sensitively.

The first, third and fourth papers are all various ways of saying "Oh no! Not everyone is panicking enough about the obesity crisis! Even some doctors are relaxed!".

The fifth paper is the only one that attempts to show that "childhood obesity" is actually a problem - the other four proceed from the assumption that it is - and it's not a good paper (by which I mean it meets the internal standards of the field perfectly, but those standards are so bad that the paper is still terrible).

It shows a lot of correlation, but doesn't then go on to even consider the question of causation. The best example of this is probably the first area it looks at - psychological problems.

[...] We can conclude that obese children are more likely to experience psychological or psychiatric problems than non-obese children, that girls are at greater risk than boys, and that risk of psychological morbidity increases with age. Low self-esteem and behavioural problems were particularly commonly associated with obesity. [...]

Further on, in a section on long-term socio-economic effects of childhood weight:

[...] that obesity in adolescence/young adulthood has adverse effects on social and economic outcomes in young adulthood [...] For example, British girls born in 1958 who had BMI >90th centile when studied at age 16 had significantly lower income than girls with BMI <90th centile (by 7% on average) at age 23 [...]

Well, there's a surprise. It turns out that bullying and harassment, exacerbated in girls by the intersectionality with gender of appearance policing, and relentless social messages about the inferiority of fat people, will give fat people low self-esteem, with increasing likelihood as they get older and so live through and internalise more of this. When they get to adulthood, widespread discrimination in society then creates a noticeable pay gap.

Their solution is not to try to end this psychological assault but to reinforce it by blaming the victims for not being thin enough.

Given that they've entirely missed the obvious here, I'm not convinced that the claimed causation of other health conditions by "obesity" really holds either, especially since they admit that the evidence they review has weaknesses, and that the psychological impact is "likely to be the most widespread" consequence in childhood.

So, that's the quality of the evidence that the government is using. It's either terrible, or relies on assumptions for which the evidence is terrible. There doesn't seem a lot of point in writing back to point this out, though.

A quick follow-up

So, two follow-ups on previously-mentioned matters:

• The good one first: Croydon Rape Crisis is no longer having all its funding removed. There's been a cut, which was somewhat inevitable given the national climate, but the pressure has made a difference.

• After thinking about racism and benefit claims, I asked the Department of Work and Pensions, that deals with many of the more discretionary benefits, for top-line figures on acceptance, appeal and rejection rates for various benefit types, broken down by race and gender.

  I wasn't expecting there to be sufficiently many aggressively racist DWP employees that there was a significant difference in the breakdowns, but it seemed worth checking. The DWP doesn't share that opinion: their systems don't collect this information in the first place, so it's not possible to know whether there's any large-scale racial bias.

The Equality Act: it's supposed to be flawed.

I got a reply to the letter to the Equalities Office that I sent back in June, asking for the rationale and more details behind some of the unpleasant exceptions in the Equality Act 2010.

Here's the reply

Thank you for your email of 8 July 2010 regarding the Equality Act 2010. I am sorry you have had to wait so long for a reply.

I will respond to the questions in the order you raised them.

Sexual orientation: section 12

We have been provided with no evidence that there is a need for people who identify as asexual to be specifically protected by discrimination law. The Equality Act will, however, provide protection to asexual people who are directly discriminated against because they are perceived to be heterosexual, gay or bisexual.

Dual discrimination: section 14

We have carefully considered which protected characteristics should be included in a claim for dual discrimination. We consider that we have adopted an approach to implementation which is practical, provides sufficient protection and does not impose a disproportionate burden. We are not aware of evidence that claims of discrimination which involve marriage and civil partnership or pregnancy and maternity are failing for lack of a remedy for dual discrimination.

As you may be aware, Ministers are currently considering how certain provisions of the Act, including the dual discrimination provisions, can be implemented in the best way for business and for others with rights and responsibilities under the Act.

Harassment: section 26

Discrimination because of marriage and civil partnership is prohibited in order to address very narrow circumstances in which some employers still adopt policies which may discriminate against married people or civil partners. We have no evidence of people being harassed at work because they are married or in a civil partnership. With regard to pregnancy and maternity, any harassment that a woman is subjected to will be covered by the protection against harassment related to sex. Specific protection against harassment related to these protected characteristics is therefore unnecessary and would add no value.

Harassment: sections 29(8); 33(6), 34(4), 35(4), 85(10); and 103(2)

The above-mentioned sections of the Act disapply the definition of harassment at section 26. This disapplication however does not mean that a person is left unprotected, but they are protected differently. Where harassment is not prohibited explicitly - as is the case for sexual orientation and religion or belief outside work - protection will be provided through the provisions prohibiting direct discrimination by subjecting a person to a detriment. Detriment can include unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Harassment: section 85(10)

Section 85 of the Act deals with the treatment of schoolchildren and there would be no practical benefit to extending harassment protection for children in schools. We believe that the real problem in schools is bullying between pupils, so what we need to focus on is putting a stop to bullying by children of other children. Extending protection against harassment related to gender reassignment, religion or belief, or sexual orientation to children in schools will not do this, since the relationship between one child and another is not caught by discrimination law.

In any situation that we can envisage, it would be unlawful for anyone working in a school to bully a pupil because of their sexual orientation, gender reassignment or religion or belief. And if a teacher were to ignore or condone such bullying of pupils, it would be unlawful discrimination.

General Qualifications Bodies: section 95

As mentioned above, protection against marriage and civil partnership discrimination applies to employment only.

Conclusion

I feel it is important to make it clear that we consulted fully and widely on our proposals for what is now the Equality Act 2010. As a result we believe we have identified where harmful discrimination is occurring. The Act aims to tackle such discrimination where there is evidence that it occurs and where legislation is considered to be a proportionate response to that problem.

I hope this is helpful.

As I said earlier, I could understand that if the act was structured in such a way that provides no protection except that which is explicitly stated to apply, that it might be easy through privilege to accidentally miss out some situations, and I now add to that that it might be considered understandable in the interests of brevity and clarity not to cover forms of discrimination where there is little evidence that they occur.

However, this Act in many cases sets out blanket protections and then puts forwards exceptions to them. To create an exception adds to the length of the Act and reduces from its clarity. Conversely, leaving the exception out is harmless. If no-one ever does discriminate in that way on those grounds, then no cases will be brought. Because of the way the Act is written, the argument against cluttering up the statute books with unnecessary laws doesn't really apply.

This is an argument against including eye colour in the list of protected characteristics (a characteristic I am personally very glad does not need protection in practice), not an argument for explicitly excluding protected characteristics from certain forms of protection.

I find their reasoning that harassment is always direct discrimination to be highly implausible - if it was automatically direct discrimination, there would be no need for the harassment clause at all. Furthermore, an explicit exemption could be taken (and elsewhere in the Act obviously is!) to override the general case. For example, the Act allows people casting for a play to discriminate based on gender or race where the script requires it (the Explanatory Notes give the example of Shakespeare's Othello). A white woman would be treated less favourably than a black man by most directors casting Othello, and this is a rare form of reasonable discrimination, and there is therefore wording in the Act to allow this despite it meeting the basic definition for direct discrimination.

Similarly, I'm fairly sure that the exclusion of asexual people owes more to the wording being constructed by people who hadn't considered their existence than any deliberate assessment that asexual people are not subjected to sufficient discrimination that they need legal protection.

So, here's my follow-up letter:

Thank you for your reply, which mostly answers my questions. I have a further questions regarding the harassment exemptions, where I remain unconvinced that the exemptions are as harmless as you claim.

It seems to me that the harassment protections must provide some additional protection in some case over and above that provided by the various other parts of the Act, or there would be both no need to include them in the Act and no need to deliberately place particular exemptions into the Act.

The explanatory notes for section 85, for instance, distinguish between direct discrimination and harassment. The example given for harassment could equally apply to homophobic comments made by teachers (even if not directed at any particular pupil) but the exception suggests that they did not.

For a real example: a GCSE biology teacher when discussing genetics refers to a particular genetic pattern which research suggests has been connected to homosexuality, describing its effects as "makes you a [homophobic slur]" while making an associated hand gesture. The teacher does not otherwise treat gay students less favourably (not least because no-one in the class is "out" and so he has no way to know)

A pupil might reasonably feel that this has the effect described in 26.1.b.ii but would I think find it very difficult to claim direct or indirect discrimination if this was the only form of discriminatory behaviour the teacher carried out. Nevertheless this behaviour could be extremely harmful - especially as a pattern of behaviour at the school - and I can see no reason not to forbid it just as equivalent behaviour based on gender, race or disability is forbidden.

It seems rather implausible to me - given that every other exception in the Act is clearly intended to set out situations in which the general protections of the Act do not apply - that the protections of the harassment clause remain even when that clause is specifically excepted.

It seems clear that the intent of the Act, both in the wording of the Act and as expressed in the Explanatory Notes, is that harassment, provided that it is not accompanied by less favourable treatment of other forms, is legal in these specific cases.

My further questions based on this are:

If it is the case that any behaviour constituting harassment would be unlawful because of another part of the act, in the cases where there are exemptions, then why are the exemptions so inconsistent. Specifically:

1) Why is there a harassment exception for sexuality and religion for every matter except employment, where there is not? If it makes no difference to the level of protection, only the route taken to guarantee it, why is employment different?

2) Similarly, why is there only a harassment exception for gender identity / transphobia in certain cases relating to school pupils but not in other cases?

3) Similarly, why is there (rightly) no harassment exception for gender, race or disability, if it really has no functional effect on the legality or otherwise of discriminatory actions?

Additionally:

4) Does the Equalities Office have legal advice that suggests that the harassment clauses are essentially entirely redundant, and if so, could you provide me with a copy of this advice?

It'll be interesting to see what they reply, especially for the fourth part. My assessment of the Act as a whole as far less useful than it should be remains unchanged.

Friday Links

• [Trigger warning] Helen at Questioning Transphobia: Forced divorce and sterilisation: a reality for many transgender persons
• Matt Kailey at Womanist Musings: "Equal to" Does Not Mean "Equal"
• Hangbitch: Big society: in Skelmersdale’s dreams
• Laura Woodhouse at The F-Word: Coalition will not endorse EU directive against trafficking
• Anne at Where's the Benefit?: No wonder people think we're all scroungers
• fullfact.org: Disability benefit: How much does fraud and error cost?
• s.e. smith: The Feminist Fashion Police
• [trigger warning] Operation Black Vote: Independent report: Schools still failing to tackle racism
• Guardian: Government climbdown on detention of children in immigration centres (not a surprise, but still bad)
• Tiny Cat Pants: Who’s Watching the Women?

Alternative vote and the flaws with proportionality arguments

One of the arguments that's used against adopting Alternative Vote (AV) is that it isn't a proportional system, and in some cases is "less proportional" than First Past the Post (FPTP).

This argument annoys me not because it's false - it's entirely true - but because it's not relevant.

You can apply second-preference polling to the First Past the Post result fairly easily - the BBC has a chart of the 1983-2005 general elections and my alternative vote swingometer uses roughly the same calculations for its 2010 base case.

You can tell from this fairly easily - play around with the AV swingometer if you're unconvinced - that AV ends up more proportional if the winning party of Conservatives and Labour has less Lib Dem support than the second-placed party (as happened in 2010) and less proportional in the opposite situation (as happened in 1997).

This doesn't actually make a lot of sense, though.

Firstly, it's not sensible to assume that first preferences under AV are the same as votes cast under FPTP. You're essentially assuming no tactical voting if you do this, and while the extent and impact of tactical voting is heavily debated, no-one denies that it does occur. At the moment, polling suggests that 5-10% of voters do not cast a FPTP vote for their AV first preference, but the nature of tactical voting means that these may be more concentrated in the marginal constituencies.

It's difficult to model accurately. I'm not too bothered about it in the AV swingometer yet, because there's very little useful polling, and the boundary changes will mean that it's not particularly useful for predicting an election result, as opposed to looking at the general impact of particular preference distributions, at the moment. However, for talking about "what ifs" for previous elections, it matters.

People will vote differently under different voting systems, as the polling shows. Parties will campaign differently under different voting systems, because the proportion of the electorate that they really need to appeal to for a majority changes, and even which parties can exist with a reasonable chance to get elected changes.

Secondly, in a preferential system, the concept of proportionality starts to break down. Proportional to first preferences is usually what is meant, but that's not necessarily meaningful either because the preference ordering doesn't tell you about the gap between the preferences.

At the last election, had it been AV, I would have taken a long time to decide which order to put the first two preferences in, and it would have been - as it was under FPTP - a very marginal decision. The third to sixth preferences would have been very easy as there would have been a wide margin. So for proportionality my vote should probably have counted in the ratio 50:45:3:2:0:0, but someone else casting a vote with the same preference order might mean it as 70:20:5:2:2:1

Thirdly, neither is designed as a proportional system - it's not possible to have a proportional system while keeping a strict one MP per constituency and not having top-up MPs (this isn't quite true, actually¹). Comparing AV and FPTP on proportionality, as well as depending on a number of false assumptions about voting habits and hidden definitions of proportionality itself, to me doesn't even make sense. It's like comparing two cars based on which one needs the shortest runway to land on.

A comparision between AV and FPTP should be based on the effect they will have at the constituency level, on campaigning methods and incentives, on the effect on political decisions, and so on. There may well still be consequences in that to make a supporter of proportional representation prefer FPTP over AV given that a PR system is not on offer (though that isn't my view).

¹ Single-seat proportionality

There is actually one voting system which will usually (it's not actually guaranteed, but with the hundreds of constituencies the UK has, it's fairly likely) give a significantly more proportional result than FPTP using the existing constituency set up.

I call it "Vote From Hat". You take all the votes cast within a constituency, discard those for which voter intent cannot be determined or are otherwise invalid, and put the remainder into a giant hat. Stir well. The Returning Officer then selects at random a ballot paper from the hat, and declares the candidate chosen by that ballot paper to be the winner.

For a large enough number of seats this is almost as proportional as a whole-country list system would be, provided that there aren't huge turnout differentials or size differences between seats.

A quick review of the advantages of this system.

• Generally proportional on both a regional and national level. Regional parties (the Northern Ireland parties, the SNP, Plaid Cymru, Mebyon Kernow, etc.) are represented roughly proportionally within their regions without significantly affecting the national proportionality of the nation-wide parties.
• Maintains a strong constituency link as there is one MP per seat.
• Strong incentive to vote - your vote could literally be the one that makes the difference, in any constituency.
• Easy to get rid of unpopular MPs. Actually, quite easy to get rid of popular ones, too. There is no such thing as a safe seat.
• Very quick to count, and no need for recounts.
• No incentive for tactical voting - you should always vote for the candidate you genuinely want to win.
• Election night is much more exciting - even if the government comes out, as it did in 2001, with much the same number of seats that it started with, that doesn't mean that they'll be the same seats or that prominent ministers won't have lost their seat.
• Shows that proportionality is not the sole criterion by which a voting system should be judged.

Sadly it's not on offer.