Friday Links

• Jane Fae at The F-Word: That’s not my name
• s.e. smith: Mental Illness Rhetoric in Skepticism, and the Problems Thereof
• eastsidekate at Shakesville: In which I confuse 2011 with 1935
• Lisybabe: Pull up to the bumper, get out of the car
• Reuben Bard-Rosenberg at The Third Estate: Public fury as emergency workers display a sense of their own mortality
• DavidG at Where's the Benefit?: The WCA: Sick Joke, or National Disgrace?
• [trigger warning] Brian Stuart at Shakesville: #thingsfatpeoplearetold: Difficult, Heartbreaking, and Incredibly Powerful
• Shamik Das at Left Foot Forward: Gap in voting rates between young and old widest in Britain
• [trigger warning] Melissa McEwan at Shakesville: Pictures of Woman Charged with Filing False Rape Report Found on Camera of Accused Serial Rapist
• Too much to say for myself: Anti-immigration, anti-women, anti-equality….the list goes on.
• Modus Dopens: Decisions, decisions
• Helen G at The F-Word: ‘Budget for growth’ leaves women out in the cold

And a few more on the Equality Act "consultation"

• Lisa at Where's the Benefit: Red Tape Challenge
• Jess McCabe at The F-Word: Government asks if it’s a good idea to repeal the Equality Act 2010
• Spark in Darkness: Cutting "red tape" apparently includes Equalities legislation

One default man's red tape is another person's necessity.

I've criticised the Equality Act 2010 on several occasions, but, flawed as it is, it still provides more protection than not having anything at all.

So, the government has included it in its "red tape" review, which is currently open for public comment. Heg at Feminist Philosophers has more information.

If you've got a moment, and are a UK citizen or resident, you might want to leave a comment yourself (remember to keep it free of cursing and apolitical, or it will be moderated out). The responses so far are overwhelmingly supportive of keeping the Act, which is good.

On the rest of the regulations, which do appear to be secondary¹ legislation, they say in their FAQ:

Ministers will then have three months to decide which regulations they will scrap, with the presumption that all burdensome regulations will go unless the government departments can justify why they are needed.

It's a rigged consultation. There are a lot of regulations. The vast majority of the population of the country don't need to know about the vast majority of them.

The people who do need to know are the people who - for everyone's good - need to follow them. They, of course, are the mostly likely to think them burdensome and unfair.

The chances of members of the general public being able to look through most of the regulations, find the ones that have affected them, and make a comment is pretty low. I'm fairly experienced at reading government documentation, and I certainly don't have time to look through them all to see what's there.

It's not that there aren't bad regulations in there, and there are certainly plenty that could be simplified, merged, or clarified, but this is a terrible way to gather public opinion on which they are.

Despite this weighting, the balance of comments on a lot of the regulations - for now - is that the regulations are a good thing and should be kept. That's probably not what they're expecting, so Plan B - ignore the comments they disagree with - is likely to be next.

Footnote

Primary legislation is laws passed by Parliament, which can only be amended or repealed by Parliament. Secondary legislation is different - Parliament will pass a law giving Ministers the right to make laws in a particular area.

Major advantages:

• More flexible than primary legislation, since it can be changed without taking up valuable parliamentary time
• More scope for detail about implementation of an Act than could usually be placed in legislation

Major disadvantages:

• Less accountability - Parliament can in theory scrutinise secondary legislation, but the process is very strongly biased towards the changes going ahead.
• Less publicity - primary legislation and planned primary legislation is fairly easily accessible to the public and interested groups. Secondary legislation, again, is easier to sneak in.
• Too easy to reverse - if anything actually important is only in secondary legislation, when the government changes hands, it can be scrapped almost instantly, and without much mention - did you know about these? I'd only heard of a few.

Another fake cost saving measure which conveniently doesn't harm default people

Andy Godfrey mentions in comments that another area the Government intend to "save money" is by abandoning the implementation of the "dual discrimination" parts of the Equality Act 2010, having previously delayed their implementation.

Dual discrimination protection was introduced in the Equality Act to deal with the situation where, for instance, women are not discriminated against in general, and black people are not discriminated against in general, but black women are discriminated against. Under previous legislation, there was no legal recourse in this situation - dual discrimination would have introduced it.

It was one of the few areas in which the Equality Act unambiguously improved upon the previous legislation it replaced.

This was announced as part of the Budget speech by Chancellor of the Exchequer George Osborne MP (Conservative, Tatton)

£350 million worth of specific regulations will go – including the Equality Act’s costly dual discrimination rules;

Okay. How can the dual discrimination rules be "costly"? Certainly losing a dual discrimination case would be costly for the employer (or other organisation - service providers, schools, landlords, etc.), but that situation would imply that there was discrimination in the first place.

Similarly, having a law against murder costs the UK taxpayer millions of pounds a year on court costs, legal fees, police and forensics teams, prison buildings and staff, and so on. But we have that law despite the financial cost because we believe murder is wrong.

Similarly, dual discrimination is wrong, so we should be willing to pay for enforcement of laws against it. (As a civil rather than criminal offence, it wouldn't even be the taxpayer doing most of the paying)

A second possibility: dual discrimination would be uniquely vulnerable to malicious and vexatious claims. This isn't likely - the number of people who could claim dual discrimination at all in practice is lower than the number who could claim single discrimination (not by definition - the default side of any characteristic in the Equality Act can usually also make a claim - but nevertheless true in practice)

Furthermore, someone who wished to make a malicious claim could do so under existing single discrimination laws, or under laws not related to discrimination.

So, there's certainly not much case for abandoning this solely on the grounds that it would save money. If one believes that discrimination at all is wrong, then dual¹ discrimination is fairly obviously also wrong. The Conservatives are taking great pains to say that they definitely believe discrimination is wrong and try to shake off their deserved reputation as the party of the default. The Lib Dems, meanwhile, were if anything even more enthusiastic about the Equality Act than its Labour proposers, bringing several - mostly failed - amendments to try to extend its reach.

So: it's not that we "can't afford it", it's that the government doesn't want to.

But, actually, does dual discrimination legislation cost us anything in the first place? That all depends on who "us" are. We're "all in this together" apparently, so I'm going to define "us" as "anyone in the UK". This is the same measure that GDP uses, so there's no reason not to.

Okay. Let's take a typical employment discrimination case. Person A is paid less than person B, or refused a promotion, or not hired, not because of matters such as experience, performance, or aptitude, but because of their race, and/or disability, and/or some other protected characteristic.

Who loses out if this is corrected?

• The employer which discriminated is likely to have to pay compensation, and possibly make other adjustments at its own expense.

Who loses out if this is not corrected?

• The employer - again - which has failed to get the best person for the job, or to make best use of its employees, and so suffers reduced productivity.
• The employee, who gets less or no money as a result.
• Other employees or potential employees with a similar set of protected characteristics, who will likewise be discriminated against in future if the employer is not made to improve its procedures.

As with most government funding decisions, the first set is an obvious direct cost which can show up on a balance sheet. The second set are mainly intangible costs, which are virtually never considered in finance decisions, plus a very direct tangible cost to the discriminated-against person.

But all in all, it looks like the total financial cost is likely to be basically neutral. Actually, given the evidence from countries which have taken more steps than the UK against employment discrimination, the long-run financial cost of this decision is likely to be harmful to the economy, not helpful.

There are two beliefs that one could hold that would make this argument fall apart. I suspect Osborne and friends hold both:

1. Money in the profits of a corporation is significantly more valuable to the economy than money in the pockets of an employee.

   Given that one of the major causes of recessions and problems with ending recessions is a major collapse in domestic spending - which then goes on to impact corporate profits anyway because no-one buys their stuff - this is rarely true. Certainly not now.

2. Default people are inherently better at employment tasks than non-default people. The best person for a good job is always a straight white middle-aged non-disabled cis man. In a suit. With a briefcase. Therefore, almost all discrimination claims will be unfounded or vexatious - especially the dual discrimination claims - and so they should be banned. Worrying about the claims might lead companies to appoint underqualified women (which is tautologous) to avoid being sued.

   I can believe that a lot of the current government MPs believe this, but they were trying to pretend not to.

For some unspecified fraction of £350 million, of which most if not all would end up in the economy anyway, with possible productivity and economic bonuses in the long run, it seems rather cheap to correct some obvious social injustice.

Apparently not.

Footnote

¹ The fact that dual discrimination is not already illegal is a fairly distinct reflection of the compartmentalisation of equality considerations in mainstream UK politics.

The Equality Act went some way towards at least stopping these considerations being compartmentalised off from each other, though not towards removing much of the relentless default-focus in legislation not specifically concerning equality.

Semi-Equality Act: EU directives, and views from the Minister

So, the message from the Equalities Office referred to four European Directives, claiming that they meant that the harassment protections were necessary to implement EU law - with the nasty implication, of course, that if it weren't for those directives, it would be legal to harass people in a racist, sexist or disablist fashion, provided that it didn't constitute direct or indirect discrimination.

• 2000/43/EC: article 2, paragraph 3 defines harassment as a type of discrimination, and article 3 sets out various areas in which it applies.
• 2000/78/EC: article 2, paragraph 3 again defines harassment, with articles 1 and 3 setting out that this applies to age, sexuality, disability and religion or belief, in contexts relating to employment only.
• 2002/73/EC: this is similar to 2000/78/EC but for gender discrimination and harassment in employment. It states that sexual harassment is to be considered harassment and that marital and family status cannot be used as 'covers' for discrimination.
• 2006/54/EC (PDF): extends 2002/73/EC slightly.

The Equalities Office's claim is that because of these EU regulations, the prohibitions on harassment are not redundant as they implement EU regulations.

However, the Equalities Act rightly goes beyond the requirements of the EU regulations - it forbids harassment on the grounds of gender, age and disability in many contexts other than employment.

There seems little point in raising this with the Equalities Office itself, however. It's fairly clear that their job is to defend the existing law as if it were perfect, until such time as it is changed by Parliament into another perfect form. To an extent that's even a reasonable requirement to place upon the civil service, but it does mean that getting answers to "why" questions out of them is near-impossible.

Meanwhile, the Equalities Minister, Lynne Featherstone MP (Lib Dem, Hornsey & Wood Green) was celebrating the Equality Act becoming active on 1 October. There were several comments criticising the reversals in equality for trans people that the Act caused, which she promised to look into, while expressing doubt (like her office: in opposition to what the Act's own text and Explanatory Notes says) that the Act actually would have that effect. Hopefully there she'll get some good legal advice and be in a position to repeal¹ some of those exemptions, which are designed to allow the provision of a service for transphobic individuals at the expense of trans people.

On the harassment exemptions her comment was:

Yes – Evan [Harris, then-MP for Oxford West & Abingdon] and I fought very hard over the differential discrimination in terms of LGB at school – and Labour took no notice. EU is looking at this too at the moment. Will say more when I know more.

So it looks like the EU route may be the best way to get these provisions repealed¹, though not a particularly quick one.

¹ Her Conservative coalition partners are planning a "Great Repeal Bill", though repealing clauses of legislation for the purpose of strengthening it - especially equality legislation - is probably not what they have in mind. Still, once that bill gets to first reading I'll suggest it.

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...

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.

What happened next.

A few notes on what's happening now:

[trigger warnings]

• I got a reply to the letter I sent about the National Child Measurement Programme letters. No surprises: the government will keep doing what it has been doing, whether it makes sense or not. I've followed up to ask for more details of the research they're using to justify their decisions.
• A YouGov poll asks about opinions on rape defendant anonymity. A majority are in favour (considerably fewer women than men are in favour) but without a second question about how they feel for anonymity for non-rape defendants it's hard to tell why this is. The question wording really doesn't make clear the limited extent of anonymity (that it's only limited reporting restrictions, not that it wouldn't actually make any difference), which also makes things hard to tell.
• From PinkNews, the BBC trust thinks that a non-apology is sufficient for its posting of the question "Should homosexuals face execution?".
• When looking at the mass of exceptions to the Equality Act, I somehow forgot to look through the Schedules (many of which are titled "Exceptions", which should have been a big hint). There are a whole mass of further unhelpful exceptions here, and Zoe Brain and Helen G have highlighted several relating to gender reassignment.

Meanwhile, Jake Berry MP (Conservative, Rossendale & Darwen) asks if Parliament can get a cat. It will be investigated, apparently.

Writing to the government

Some letters I've sent recently regarding recent issues. Specifically:

• Via Goriler of 3B, a letter asking that funding for a rape crisis centre not be cut. Please, if you have time, send your own as well, especially if you live in or near London.
• A letter to the Health Minister asking that they stop the letters accusing children of being too heavy.
• A letter to the Equalities Office to see if they have any idea what these exceptions are for.

Letters below.

[trigger warning]

As usual, please feel free to use these for inspiration for your own letters, though remember that letters in your own words are more powerful than copies of other letters, if you have the time and energy to do so.

Regarding RASASC

I sent this by email to mike.fisher@croydon.gov.uk.

Dear Mr Fisher,

You have recently announced that the funding for RASASC, the Croydon Rape Crisis Centre, will be cut by 27,000 pounds a year. This is a significant amount for a rape crisis centre, and it is likely to lead to the centre being unable to support hundreds of rape victims a year.

As the only rape crisis centre for the London area, the service it provides to victims is invaluable, and the effects of reducing its funding will spread well outside your own Council's boundaries. By running a helpline, supporting survivors of rape through counselling and through legal assistance at trials, it not only provides a vital public service, but provides a highly cost-effective way for your Council to support victims of crime.

The government have promised to improve the funding provided centrally for rape crisis centres, but it is not clear when - or even if - this promise will be fulfilled. Until then, it is necessary that others such as your Council play their part in keeping these services open. With thousands of rapes occurring in London each year, RASASC's ability to help additional victims is crucial.

Please restore RASASC's funding.

Yours sincerely,

[me]

Letters regarding children's weight

I sent this using the contact form on the Department of Health's website.

Dear Andrew Lansley MP, Health Secretary

I understand that you are looking for programmes run by the NHS and other health providers within your remit that could be reduced or eliminated without impacting the quality of front-line service.

I would like to suggest the sending of letters regarding the weight category of children, which is carried out as part of the National Child Measurement Programme. While the general aims of that programme are not in question, and the statistical data it gathers is perhaps worth much more to your department than the cost of gathering it, this particular application is not a good use of limited resources.

There have been a few reported cases - for example one last February reported at http://news.bbc.co.uk/1/hi/england/dorset/8523707.stm and one recently reported at http://news.bbc.co.uk/1/hi/england/leeds/10505584.stm - where letters telling parents that their child is overweight and warning of dire consequences, have been sent out to the parents of children who were physically active, eat healthily, and nevertheless happen to be marginally above the guidelines set out by the previous government for a person's required weight.

It is extremely likely that these cases are only the tip of the iceberg and there are many more letters being sent out in similar circumstances. The mechanism used to determine who gets the letters guarantees this.

Firstly, the letters are sent out based on Body Mass Index. This measure was developed as a way of providing a statistical estimate across a wide population of adults. It has never been appropriate to use as an individual measure, has not necessarily coped well with the increase in average height over the century since its introduction, fails to account for normal racial and sexual variations between individuals, and other forms of normal genetic variation, fails to distinguish between fat and muscle mass, and certainly was never intended to apply to children, whose shapes vary considerably and rapidly as they grow, especially in early puberty when the second set of measurements for the NCMP takes place.

Secondly, the children in regard of whom these letters are being sent are at a young and impresssionable age. It may have been the aim of the previous government in introducing these letters to encourage healthy eating and exercise habits to start early. In practice, of course, the effect can be quite the opposite - the child in the second article above refused to eat their meal when they discovered that - as is of course natural and desirable for growing children - their weight had increased since the NCMP measurement. This is something that could very easily turn into a serious eating disorder.

Thirdly, the science regarding weight is inexact. Multiple research studies - Orpana et al 2009 in Canada (doi:10.1038/oby.2009.191), Lenz et al 2009 in Germany (doi:10.3238/arztebl.2009.0641), or the NHANES studies in the USA (Flegal et al 2005) have shown that - at least in Western industrial societies - the mortality risk of people with a BMI in the 25-35 range is not statistically different to that of those in the current government-recommended 18-25 range (indeed, there may be a marginally lower risk for those in the so-called "overweight" 25-30 range). This is the research for adults, suggesting that the BMI guidelines set out by governments for them may not be correct. There is no similar research I know of for children - because, regardless of their weight, children very rarely die of weight-associated conditions other than eating disorders - but it seems very unlikely that the BMI guidelines set for them are correct either.

Fourthly, even if increased weight is correlated with an increase in risk for various health conditions, and even if that correlation is causative, which has generally not been shown, there remains no reliable long-term method for reducing weight in the long term. The few 5-year follow-up studies that have been done show that dieting is ineffective. Exercise certainly improves general health, but does not appear to cause weight loss. Early indications are that the surgeries currently being trialled have a greater chance of causing early death than any of the health conditions associated with above-average weight.

As you have gathered, I would like to see a general move away from the overemphasis of the crude BMI measure, and from the excessive conflation of weight and health carried out by previous governments, in general.

For now, however, I would appreciate it if the money used to produce and send these letters was reallocated into other more useful areas of your department's activities.

Yours sincerely,

[me]

Equality Act exceptions

And finally this one to the Equalities Office general enquiries address, to see what they know. I'll post up the response if I get one.

Dear Government Equalities Office,

I have a number of questions regarding the Equality Act 2010, that are not answered by the explanatory notes provided. Could you please provide me with the Goverment Equalities Office's current opinions on these matters.

The wording of Section 12 is not completely clear to me. While the application of legislation would ultimately be a matter for the courts, does the Government Equalities Office believe that this section would protect those people who identify as asexual (i.e. they are not sexually interested in people of any gender) as well as the bisexual, heterosexual and homosexual people that it more obviously protects?

In the areas of dual discrimination (Section 14), the protected characteristics of "marriage" and of "pregnancy" are excluded. Does this mean that an organisation that did not in general discriminate against people who were married, and did not in general discriminate against women, would still be allowed to discriminate against married women? If so, could you outline a situation where it would be desirable for this to be legal for an organisation to do?

The same characteristics are excluded from Section 26 (harassment). Could you outline a situation where the harassment (as defined in 26b) of a person or persons due to their marital status or pregnancy would be desirable, please?

In Sections 29.8, 33.6, 34.4, 35.4, 85.10, and 103.2, sexual orientation and relgious belief are excluded from the Section 26 harassment prohibition. For each of these situations, could you explain why it might be both necessary and desirable for a relevant organisation to carry out harassing behaviour against LGB people or people of a particular religion?

Section 85.10 also allows harassment on the grounds of gender identity. Again, please could you outline a situation where this is desirable?

Section 85.10 applies to the admission and treatment of primary and secondary pupils. Section 91, which covers the treatment of students in Further and Higher Education, does not contain a similar exception. Could you explain why it is not necessary for tertiary education providers to be allowed to harass LGBT applicants, given that this is apparently necessary for primary and secondary education providers?

Section 95 states that the chapter on General Qualifications Bodies does not apply to marriage or civil partnership. In what case would a qualifications body wish to do make use of this (for example by withdrawing qualifications from people when they were married) and why is it required?

With regard to the above questions, if the Government Equalities Office cannot provide an example of a situation in which a particular exception would be desirable, could you tell me if there are any current plans by the government to remove that exception.

Thank you

Yours faithfully

[me]

Why is this still legal? The Equality-on-a-good-day Act

Why is this even legal? According to the BBC:

Residents of Firhall, built in the early Noughties on the outskirts of Nairn in the Highlands, must abide by certain rules. The deeds for their properties prohibit the keeping of ducks, rabbits, pigeons and bees. Households are allowed to have one dog - but controversially no resident children. To own a house in Firhall you must be over 45 years old. Grandchildren and the children of friends can visit and stay, but there are even limits on how often this happens.

It's not the only thing that's surprisingly legal, either. So much for the grand claims that the Equality Act would protect those most vulnerable to discrimination.

Looking at the Equality Act 2010, this appears to be entirely legal:

4 [...] The following characteristics are protected characteristics [...] age [...]

Part 4: Premises [...] 32.1 [...] This Part does not apply to the following protected characteristics [...] age

Looking at section 17, the terms would be unenforcable for the first 26 weeks of a child's life if their mother was already there, but that's all. (Of course, it would be relatively rare for a mother over the age of 45 to be living there, but not impossible). Otherwise, they seem to be within the exceptions the law provides.

Another unpleasant exception in this section, that I found in my "how is this possibly legal" search - you are allowed to harass people occupying or applying to occupy (as tenants) on the grounds of their sexual orientation or religion.

There's a similar but slightly broader exception in the Education section (which only applies to schools, not to FE colleges and Universities¹), the same exception in the Provision of Services section, and in the membership of associations section.

So Labour and the Lib Dems get an LGB-friendly reputation for supporting this legislation (the Lib Dems, to be fair to them, did attempt to amend some of these bits out), which mostly seems to consist of "You must supply these services to LGB² people, but you can '[create] an intimidating, hostile, degrading, humiliating or offensive environment for [them]' as much as you like in the process."

Additionally, neither "marriage and civil partnership" nor "pregnancy and maternity" are characteristics to which the harassment section applies at all.

There were some good bits in the Equality Act that hadn't been there before, such as the pay audits and the recognition of the existence of intersectional discrimination, and it's not as if by having these exceptions it was removing protections that previously existed, but it still hardly deserves the name. It's not as if this was a drafting error and an unnoticed loophole was left in until it was too late to take it out (though that, in its casual disregard, would be bad enough) - because of the way the Act is worded, someone had to specifically insert these exceptions.

Additionally, you can use these terms to push a lot of other things through. The Act doesn't say how wide an age group has to be, so you can legally say "Sorry, I don't rent to people who were born on 3rd April 1972 between 2am and 2:30am", and provided you then apply that rule consistently to later default tenants, you have a perfectly legal reason³ not to rent to any non-default person you like.

Other things that are entirely legal under the Act and really shouldn't be (or at least, if there is a real need for an exception, it should be the exception that is legal, not the rule):

• Pregnancy and maternity, and marriage/civil partnership, are excluded from the intersectional discrimination laws. So discrimination against all married people is disallowed, and discrimination against all women is disallowed, but discrimination only against married women is apparently fine (barring explicit exceptions elsewhere in legislation, of course)
• Refusing to provide a service to married and civilly-partnered people. (You can't, at least, just pick one and sneak in some homophobia) Similarly for single people.
• Same things for premises
• Same things for education (yes, your university can refuse to provide an education for single and/or unofficially partnered people, and I have no idea why, and likewise a qualifications board can legally withdraw qualifications from people when they get married/civilly-partnered, though what possible reason⁴ they'd have to want to I don't know)
• Additionally, the exception for harassment in schools applies to gender identity as well as the sadly usual pair of sexual orientation and religion
• The exceptions for what can't be required as a "reasonable adjustment" for disabled people are extensive.

The only area that doesn't seem to have masses of exceptions is employment. I may have missed some other exceptions, since there are a lot and the phrasing used for them varies.

¹ Yes, seriously. Apparently homophobia in admissions is essential, and banning it would have terrible consequences for the rights of bigots at the primary and secondary stage, but at the tertiary level the rights of bigots are unimportant. This makes even less sense than usual.

² It's not at all clear to me whether any of the Act applies at all to asexual people. It can be read either way. The explanatory note suggests that it doesn't apply to them, but I think a good lawyer could probably convince a judge that it did.

³ Disclaimer: not legal advice. If you try this argument you deserve everything you get.

⁴ "We've been homophobic for centuries and we're not going to stop now" is not a good reason, nor one that governments should be supporting people in, but you can at least understand which group of bigots lobbied to have that exception included. Some of these it's not at all clear why anyone would ask for them.

The semi-Equality Bill: lobbying for improvement

Two amendments to improve the Equality Bill for trans people have been put forward. Please encourage your MP to support them. A description of the issue, and model letters, via Bird of Paradox. You can write to your own MP using WriteToThem, though only if you're using your own letter rather than one of the model letters - please contact justfillingintheblanks@googlemail.com if you do so that they can keep track of the number of people lobbying.

The narrow definition of 'trans' as people who are, have, or will undergo gender reassignment is seemingly a habit of this government, so the more people saying it's wrong the better.

The explicit omission of sexual orientation and gender identity from the reasons schools are not allowed to discriminate or harass is unbelievable. I could understand - though not accept - if anti-discrimination legislation forgot to include those as reasons. In this case, it includes language specifically to exclude those as protections. This is not a case of "not having thought about it" but of "having thought about it and decided to do it anyway".

The letter I sent to my MP follows. They're not the promptest to reply to these, so I expect I'll have to check the voting records for an answer, but I hope their office is organised enough to at least get it to them before the 3rd reading debate:

Dear [MP]

The Equality Bill currently in the Commons may well be the last opportunity for several years to strengthen the protections available for groups who are currently the subject of severe discrimination.

There are two amendments to this bill which significantly strengthen the protection it provides to trans people (transgender, transsexual, and other gender variant people), that I would appreciate your support for in Commons votes.

Firstly, for Clause 7:

Currently, in Clause 7, "gender reassignment" is a protected characteristic. A significant proportion of trans people, perhaps the majority, would not be covered by this, as they are not intending to go through the medical process of gender reassignment. Additionally, people who do not identify as either male or female (regardless of the gender assigned at birth) are not covered by this terminology, for example, some intersex people.

The Scottish Parliament passed anti-harassment legislation earlier this year which was much more broadly defined with respect to trans people than the Equality Bill's Clause 7. Having particular forms of harassment legal in England and Wales which Scotland has rightly outlawed is an inconsistency likely to cause significant problems for many people.

The recent Joint Committee on Human Rights report recommends widening this definition on pages 25 to 26 of the report, available from http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/169/169.pdf, by using the term "gender identity" instead. Amendments NC12(3) to (5) make this change, and I ask you to please support these amendments and encourage your colleagues to do likewise.

Secondly, in the section on education, Clause 82(10) excludes "gender reassignment" and "sexual orientation" from the scope of Clause 82, which requires that the responsible body of a school not:

• discriminate or victimise in admissions
• discriminate or victimise in provision of education
• harass the pupil

Homophobic and transphobic harassment and bullying is a severe problem within schools, with the majority of LGB and gender variant pupils reporting experience of homophobic and/or transphobic bullying and harassment, in some cases from the school staff as well as from other pupils. In many of these cases, the school has failed to respond adequately to the problem.

This harassment and bullying can cause severe problems, including truancy and academic failure, low self-esteem and mental health problems, and even self-mutilation and suicide. The suicide rate for LGB and gender variant children is significantly higher than that for children in general, and this is a major cause of that.

Page 44 of the Joint Committee report states:

We therefore recommend that protection from harassment be available on the grounds of sexual orientation and gender identity in schools using the narrower conjunctive definition as there is a "captive population" and vulnerable population at risk and there is an established problem of bullying and harassment in this area. We also recommend that protection from harassment be available on the grounds of sexual orientation using the narrower conjunctive definition in the provision of public services as those who use public services may also be "captive populations" and vulnerable.

Please support any amendments that would remove these exemptions, to give LGB and gender variant pupils the same protections that BAME pupils, female pupils and disabled pupils have already been granted.

The Equality Bill is a generally strong piece of legislation, that I am pleased to have seen the government introduce and I hope that it will become law before the next general election. As the most important piece of equality legislation in recent years, it needs to provide comprehensive protections as the next opportunity to improve them may be some time away.

Trans people have long had little protection in law, something which the government has recently begun to rectify with legislation such as the Gender Recognition Act. Please take the opportunity to make significant further progress now.