The Government Inequalities Office

The recent newsletter from the Government Equalities Office can basically be summed up as "Well, it's all a bit difficult. Let's not bother". It's the result of their previous "regulation is evil" review.

The measures announced today include:

Repealing Third Party Harassment law, which will ensure employers are no longer liable for the harassment of an employee by a third party (for example, a customer). A consultation on this change is launched today.

The Law Gazette has a summary of the existing law, and the case law it's based on.

Note that it firstly requires this to happen more than once and secondly requires that the employer could reasonably have done something about it but didn't.

The 'Bernard Manning' case (which held that the employer was liable for inviting a racist and sexist comedian to insult their staff, even though the comedian was not a direct employee) is fairly important since third parties include suppliers and contractors.

It's not clear that repealing this part will actually stop employers being liable, as the Equalities Office apparently holds the view that all harassment is direct discrimination, and of course the case law establishing liability predated the law they're going to repeal. Unless they intend to repeal it by adding a statement that employers are explicitly not liable, of course, which is unlikely to stand up in court.

Next...

Reviewing the Public Sector Equality Duty - a legal obligation on public bodies to consider the impact of their decisions on different groups - to establish whether it is operating as intended.

Repealing the Socio-Economic Duty - a legal obligation on public bodies to consider the impact of their decisions on social class.

I'd be more worried about the first point if the government had not repeatedly shown that it's completely trivial to ignore it anyway, if you are the government. Repealing the Socio-Economic Duty is hardly surprising either, given how obviously they've been ignoring it so far.

Then...

Tackling gold-plating and over-compliance by working with the British Chambers of Commerce to help small-and-medium-sized companies understand what they do and don't need to do in order to comply with the Equality Act.

We must remember that the Act's purpose is to give plausible deniability when people are discriminated against. Some companies have got confused and gone beyond this to attempt to actually stop the discrimination.

Repealing employment tribunals' 'wider recommendations' powers, which will remove the power of tribunals to recommend the introduction of, or changes to, policies that affect all of an employer's staff - not just the employee who brought the case. A consultation on this change is launched today.

We must remember that it is far more effective, and good for the employer, if they have to deal with several separate discrimination cases for the same issue, rather than a tribunal being able to suggest a way to improve general practice after the first one.

The "individual solution to systematic problem" approach of course never fails to keep discriminated-against people from causing too much trouble.

And a bunch to do with the EHRC

Repealing unnecessary powers and duties. Some of the EHRC's powers and duties under the Equality Act 2006 will be scrapped in order to help it focus on its core functions.

Tighter financial controls. The EHRC will comply with government-wide spending rules - in particular, controls on recruitment, consultancy and marketing.

Budget review. The EHRC's budget was cut by over half as part of the 2010 Spending Review. There will now be a comprehensive review of the remainder of the EHRC's budget, to be completed this autumn.

New leadership. A new Chairman and a new, smaller Board will be recruited.

"Having funding, powers, and staff is interfering with the EHRC's duty to pretend everything is fine. We will review this."

They're not necessarily the most useful or sensible organisation, but I doubt these changes will help.

...all in all, about what you'd expect from the Conservative Party.

About four years ago, you couldn't talk about an issue like this without a Lib Dem popping up to say that they were the only major party to have:

Upholding these values of individual and social justice, we reject all prejudice and discrimination based upon race, colour, religion, age, disability, sex or sexual orientation and oppose all forms of entrenched privilege and inequality.

in their Constitution. The lack of an entry for "social class" is telling, in light of the above repeals, isn't it.

I haven't seen a Lib Dem mention that for a while now. Whether that's because there are fewer Lib Dems or because they've realised that like a lot of Constitutional statements it's basically meaningless words, I'm not sure.

Statistical dehumanisation

[trigger warning]

Dorset, Leeds, and now Nottinghamshire. Yet again, applying a century-old statistical population measure to individuals gives an utterly meaningless result.

I've already said what I want to say about the science behind this, so I'll just link to that and summarise below. I still have more to say about the attitudes, though.

[Director of Public Health Chris Kenny] said: "Obesity is on the rise in this country and what this weight management programme is designed to do is to raise the issue with parents.

"I wouldn't want this one particular case to undermine the whole programme."

Nor, I suppose, would he want the fact that the "science" he's using is not actually supported by the evidence to undermine his programme.

Or the fact that it's counter-productive and bullying of children who really should be considered too young¹ to be given My First Body Issues sets.

The problem isn't really the horribly flawed science. That's bad - and there's a serious group-think problem within the "obesity research" field that stops this getting much time.

The problem is the attitude to people that current "public health" schemes seem to regularly get sucked into.

"Public health" is not an easy job. Done well, it can save lives, improve health, and free up valuable funds that are no longer needed to deal with preventable diseases. However, it's something that only really works at a population level.

The infamous bacon cancer study found that the risk of a particular group of cancers increased from 5% to 6% through increased consumption of processed meats. Now, as was pointed out at the time, this means that for 99% of people, whether or not they eat bacon will make basically no difference to their risk of cancer. For many of those people, bacon is a tasty food, and giving it up or cutting back will make them unhappy.

From an individual perspective it's highly unlikely to be a good deal - permanently give up bacon now, to marginally decrease your chances of getting cancer thirty years later? Most of the people who would take that deal probably didn't like bacon that much in the first place, and so probably didn't eat enough for cutting it out to make a difference.

From a public health perspective the calcuation is completely different. If everyone stopped eating bacon, rates of this group of cancers would drop about 20%, saving millions of pounds a year, and saving thousands of lives. Who wouldn't want that?²

The conflict comes between the individual view and the population-statistics view of public health policy. It's very easy to forget that those statistics are made of individuals, all of which - even if they're identical on the measured statistics - have their own very different lives.

Population statistics is the "easy" way to do "public health". It's also - because it reduces people to a few broad numbers - inherently dehumanising. With that, it becomes easy to see why they won't be dissuaded from this course: they're saving [abstract] lives, so if a few [real] lives are harmed as a result, it's still worth it.

Because the underlying attitude is itself dehumanising, some bad science that reduces health to a couple of convenient numbers is very attractive. Rather than looking at individual health, fixing the numbers becomes the goal - and if your numbers are "wrong", that makes you a problem. For people who are already dehumanised regularly on an individual level, the effects combine very strongly

The "hard" way to do public health does also happen, and there are professionals working very hard towards it - providing green spaces, looking at food availability, considering safety issues, and so on - rather than blaming individuals for making the "wrong" choices. An approach that humanises rather than dehumanises is not only more compassionate, it's also more effective.

Not surprisingly, those public health professionals don't make the news for things like this.

Also not surprisingly, the government is quite happy to, for instance, cut funding to local councils and so force them to close leisure centres (something that is certainly bad for public health), but continues paying for schemes like this to shame people with non-approved bodies.

Footnote

¹ No, there isn't an appropriate age. The product failed safety tests.

² Given the current high unemployment, anyone whose job depends on people eating bacon, for a start.

Kyriarchy for kids

Durham County Council has recently put out this press release, which was reprinted in the local free paper and probably elsewhere.

The search is on for young people in County Durham with an outstanding school attendance record.

Durham County Council is tracking down all final-year primary and secondary school pupils who have never taken a day off.

The council is planning a special celebration to reward young people with a 100 per cent attendance record at either primary or secondary school.

Maureen Clare, Durham County Council’s head of countywide services, said: “Never missing even half a day of primary or secondary school is a fantastic achievement and one we want to reward.”

Unauthorised absence from school is a problem, but there are serious problems with this plan.

[trigger warning]

Pupils spend six or seven years at primary school, and five (optionally seven) at secondary school. School is generally open 5 days a week, 39 weeks a year - so that's an unbroken absence record for over 900 days (primary) or over 750 days (secondary). This includes no absences for the various authorised reasons.

According to the Department for Education, there are just under 36,000 primary-age pupils in County Durham (so probably around 5,500 in their final year), and around 30,000 secondary age pupils (so probably around 6,000 in their final year). I suspect the odds of never missing a day are well over 1 in 12,000.

Managing this is a "fantastic achievement" only in the sense that winning the lottery is a "fantastic achievement". I very much doubt that they'll find anyone. I hope they don't find anyone. Rewarding someone for that combination of luck and privilege sends entirely the wrong message.

A partial list of children who - through no fault of their own - will not be getting the prize.

Health and disability

• Those who were seriously ill for at least one day out of several hundred. Even with a great immune system and full vaccinations that's going to be tricky to achieve. I don't know anyone who didn't miss at least a couple of days of school for general illness - stomach bugs, severe colds, etc.
• Similarly, anyone who's seriously injured. Break an arm? Tough. No prize for them unless they splint it with their school ruler and carry on. Break their arm while playing rugby for the school? Still tough.
• Disability or other condition requiring medical treatment, or making continuous school attendance difficult? Nope. No prize for you.

Yet again we have "being ill is immoral". The same attitude permeates government at all levels, and society in general, with well-documented effects.

Family situations

• Bereavement? Family member terminally ill? No taking time off to visit them in hospital or attend their funeral. They should have the decency to die at a weekend and so not harm productivity. Similarly for happier family occasions.
• Family moves in or out of the county? I suppose the Council might try to chase up attendance records from other education authorities, but I doubt it. In or out of the country? No chance. Similarly for people who were home-educated at any time - it's legal, and rightly so, but that doesn't mean the government likes it.
• Abusive family so they run away from home? Or get placed in care? Not conducive to a perfect attendance record. The Council is fully aware of this

Bullying and other peer abuse

• Bullied to the extent of needing time off to recover from injuries (physical or mental)? See above.
• So (justifiably) terrified of the bullying that they make up an illness to avoid going in, or are ill because they're so worried, or just don't go in without telling their parents¹, or their parents rightly refuse to send them in? No prize for them.
• Sexual violence? Still the victim's fault.

LGB kids, or fat kids, or neuroatypical kids, or really, any kid that doesn't conform to the exact social stereotype, tend to be even bigger targets for bullies, but it can and does happen to anyone and we somehow accept it as largely inevitable; there are no equivalents of Trades Unions to speak up for childrens' rights here, and children who go on strike in protest... well, that's an unauthorised absence.

Even worse, there's nothing in this section to stop the bullies themselves having a perfect attendance record and getting the prize. "Trample those beneath you to raise yourself up" is perhaps not the ethos schools should be trying to instil.

Miscellaneous bad luck

• The last couple of winters have been extremely harsh, with schools closed several days for snow. There will have been days when the school wasn't closed but children living in more isolated parts of the county will have been snowed in anyway. Didn't walk three miles through over a foot of snow? Tough.
• Foot and mouth outbreak causes your farm to be quarantined? As usual, that's no excuse - you should break the law and come in anyway.

The TUC were very critical of the employers who expected their staff to come in, at risk to their life, during the severe weather this winter. Again, apparently this is something that starts early.

Closing thoughts

There's nothing unusual about these proposals. The value of attendance - whether you should be there or not, whether you're productive there or not, whether your attendance causes more problems later or not - is insisted upon by many employers and starts off at school. The idea that people who are ill, or disabled, or victims of assault and bullying, are somehow morally and otherwise inferior, or brought it on themselves - it's an idea probably as old as humanity, but that doesn't make it right.

There's another bit of point-missing, too. The reason that Councils have a legal responsibility to provide education and to require attendance at some form of education, is for the benefit of the children, who will have better chances in life, on average, if they receive education.

The children who attended every day have already, by that logic, received their reward - an education - and don't need an extra reward. The children who were missing are surely the ones who need more attention and help. It's far easier to reward attendance - useful attendance or not - of course.

I've sent the following letter to the Council itself, and to my two local councillors.

I write regarding the scheme described in your April 28, 2011 press release "Search for 100 per cent school attendees".

I fully understand that unauthorised absences from school can be a serious problem, and one which the Council has a legal responsibility to deal with. However, I do not feel that this plan is an appropriate part of that strategy.

Not missing a single day - out of the several hundred that must be attended - is only a "fantastic achievement" in the same sense that a lottery win is a "fantastic achievement". Not only must the winning child - I will be very surprised if you find even one, given the odds - not have had any unauthorised absences, which is quite possible, but they must not also have had any authorised absences either.

Not needing any authorised absences is, however, largely a matter of luck. People get ill. Children, who generally have less well-developed immune systems than adults, get ill even more often. Getting through over 750 days of schooling without being ill even once requires a perfect immune system, which is largely a matter of genetic luck and other factors outside the child's control.

Children with disabilities, chronic health conditions, cancer, or other conditions requiring regular treatment would find it impossible - through no fault of their own - to win the prize being offered. Effectively the Council is declaring that the genetic luck of being in perfect health is "an achievement" - which implies that it is something that the children had a choice in and control over. That is not a pleasant implication.

While luck of birth is one factor the winner or winners of this prize will need, they also need other sorts of luck too. The County's schools all have anti-bullying strategies, but these strategies are not fully effective, and one reason for unauthorised absence can be an entirely justified fear of bullying. (Being bullied can also affect one's physical and mental health, causing authorised health-related absences)

LGBT children, children with disabilities - including learning difficulties or mental health conditions, and children who don't "fit in" for any other reason are more likely to be targets for bullies, again, through no fault of their own.

Not being bullied is not "an achievement" - rare as it is - and to treat it as such is to blame the victims of bullying for the bully's actions. Worse still, the bully could still attend every day and be eligible for the prize while their victims are not!

There are many other good reasons for absence too - a bereavement in the family, being snowed in during the winter's bad weather, road accidents, and many more - for which describing it as "an achievement" to have avoided them is wrong and extremely insensitive. Think of a pupil who had an otherwise "perfect" attendance record, but took a few days off when their father died to grieve and attend the funeral. How will they feel if they hear about this prize?

I understand why the Council wishes to encourage attendance at school, but this is very much the wrong way to go about it, and I urge you to withdraw the scheme.

Yours sincerely

[cim]

Footnote

¹ The only item on this list that actually counts on school records as unauthorised absence, I believe.

Indiscriminate police violence

[trigger warning: especially for some of the links]

The recent anti-government protests in London were met with heavy violence from the police. Somehow, no-one has yet died as a result, though several people were beaten into unconsciousness and are lucky to still be alive.

The police and government claim that they made a proportionate response to violence from the protestors. As the links - let me repeat, may be very triggering - below show, though, this was clearly not the case. If you feel up to it, please read as many of the accounts as you can - what happened needs to be widely known:

• Laurie Penny at New Statesman: Inside the Parliament Square kettle.
• BBC News interview with Rachel Bergan, a 17-year old protestor
• Shiv Malik at The Guardian: Student fees protests: woman claims she was beaten by police
• Guardian: Police tactics at tuition fees protest questioned after further angry clashes
• Jody McIntyre: Week 76 – Student Protests, Part Three
• HarpyMarx: “You are not being kettled… but contained”…. and And then the kettling started….
• BBC News: London student 'struck by truncheon' has brain injury
• Press Gazette: Journalist Shiv Malik injured by police baton

One journalist struck with a baton and needing stitches while trying to report on the protests. Another physically removed from the scene to prevent her seeing what happened next. Someone dragged out of his wheelchair for being slightly too close to the police, and his friends prevented from helping him. Several people beaten into unconsciousness and concussion, at least one critically injured as a result, and the police then obstructing medical attention. Tens of protestors hospitalised, hundreds more - most of whom won't make the news - injured.

Smug Mr Cameron approving of all this police violence and praising their response, while describing the protestors as "feral". Dehumanise those you want dead, right?

I don't doubt that there were a minority of violent protestors throwing things at the police. It's also extremely clear from these reports that the police response was not directed at the violent protestors but at the nearest ones. In any other situation this would be clearly unacceptable. The justification seems to be that by being in the same protest as people who are being violent, you deserve whatever you get.

Of course, a lot of the violence only started when the protestors were being confined by the police. The descriptions from there make it clear that the confinement, the street imprisonment without access to food, water or toilets, had a definite effect on the mood of the protestors.

This will discourage some people, of course, from protesting further. That's, presumably, the idea. It will also make others more willing to come back and do more, be more determined not to silenced. The anti-government mood in this country is growing, and this sort of unjustifiable violent suppression of legitimate protest will only strengthen it.

From a pair of governing parties who got into power in part by outflanking Labour on civil liberties issues - which was a sadly easy task - it's not taken them too long to show their true beliefs.

This is only going to get worse. There will be more protests as the government's cuts start to take effect, and people see vital services removed, and the government will encourage more and harsher reactions from the police to "control" the protests. People will die before this is over, and we'll be told they had it coming, being at the same protest as someone who threw a brick.

How do you deal with a state that's so willing to use indiscriminate violence against its own?

A couple more links for further reading

• Enemies of Reason: The contempt for democracy
• Modus Dopens: Just the beginning

If you're in or near London and have free time and energy, Friends of Alfie Meadows, the Middlesex student nearly killed by the police, have organised a "Kettle the cops" protest against police violence for 1pm on Tuesday.

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.

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.

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]

Crime, children and statistics

The British Crime Survey has been mentioned quite a bit recently. One of the things that I noted was that it only covers crime against adults. They're currently looking at surveying children as well, which this BBC article covers.

There's a fair amount of trivialisation of crime against children going on in the article and to a lesser extent in the research too. The research summary (PDF) is on the Home Office website.

[trigger warning]

Using the "adult" definition of crime, they found that around 2.2 million personal crimes (theft and non-sexual violence) were committed against children aged 10 to 15 in England and Wales in 2009, which is around four times the adult rate.

They then looked at various exclusion categories:

• Ignoring incidents defined as "childish behaviour". Some of these are things that would probably be ignored by most adults, too, but some are fairly serious incidents of bullying. This cut the figures down to 1.1 million (but note that it excludes some things that the children themselves considered to be crimes committed against them, and some things that were an interaction of the same sort to take place between two adults there would be no doubt that it was "really" a crime)

• Another exclusion was to ignore all incidents that take place at schools. Down to 0.6 million, ignoring theft, assaults that left children bleeding, and probably some other nasty stuff.

  The interesting thing about this: ignoring incidents at school takes out almost three quarters of the crimes. What does this say about the safety of our schools for children and their ability to stop bullying?

  They say about these incidents in the PDF

  [...] the matter remains within the school's internal disciplinary processes. This is likely to result in most low-level incidents being dealt with by school authorities and not recorded as crimes by the police.

  Or ignored by school authorities and not recorded by the police, perhaps.

• The final type of exclusion is to include only those incidents that the child themselves classifies as a crime, which only counts 0.4 million. Remember that children will probably have received less education than adults as to what counts as a crime, and that even with adults it has long been recognised that describing behaviours rather than naming specific crimes gives far more accurate results.

Now, I absolutely agree that prosecuting the offenders, who are also often children, in many of these cases is not in the public interest, or even in the interest of the victim (and unlikely to help reform or rehabilitate the offender either). Other options would need to be used, which might include the school's internal disciplinary processes.

I'm also, looking at the massive drop in estimated crime if incidents at school are dropped, even more convinced (as if I wasn't already) that schools view bullying as a natural part of school life, and are not anywhere near as serious as they should be about stopping it, given that they set up an environment where it is very likely to happen.

The pilot didn't cover sexual assaults and related crimes, which also happen to children a lot, but this is also true of the main BCS

The back pages of the PDF (29 and 30) have some consultation questions and an address to send responses too. It's worth sending something in, if you have any opinions on the matter.

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.

"False" allegations in schools

[trigger warning]

The Association of Teachers and Lecturers has recently released the results of a study about "false allegations" made against its members. Reading the reports in the news, I couldn't help feeling the discussion was moving in an all too familiar direction.

The comparision with allegations of false allegations of rape seems rather obvious, not least because there's going to be an unpleasant range of overlap between "allegations of misconduct by school staff" and "allegations of rape and sexual assault", and it seems to be attracting much the same dubious lines of argument.

So, similarities. The teachers are in a position of power, the pupils are not. The consequences of reputation for false allegations are strongly emphasised (and I don't dispute, incidentally, that it would be very stressful to be in that position), whereas the effect on the children of incidents that lead to true allegations are barely mentioned: in the ATL press release (1250 words), only these 25 mention the possibility that accusations might be true: "We all accept the protection of children is paramount, but that should not be at the expense of natural justice - school staff have rights too."

Their statistics seem rather dubious, too (which is another similarity). Ignoring the "don't know" responses (which is being generous, I think), the ratio is 50:18 believe that a false accusation has taken place in their school.

28% say that they have a false allegation made by a pupil against them personally, and 17% say that they have one made by a family member. We can assume some overlap between these two categories, though the results don't say how much. 368 of 1155 responded to the question asking how the allegation was treated, which is 32%.

Let's assume, for internal consistency, that everyone who had an allegation made against them answered 'yes' to "someone in my school has had an allegation made against them".¹

So, if we take these figures at face value, about a third of staff have had a false allegation made against them. Of those who have not, then about a quarter know that someone else at their school has been the subject of one, about a quarter are confident enough that no-one has to say so, and half don't know for certain.

Let's take a large primary school with around 24 teaching and teaching-related staff. On average, 8 of those staff will have had a false allegation made, and 4 of the other staff will know of at least one of these cases. For a secondary school with around 120 staff, 40 will have had a false allegation, but only 20 others will be aware of any of these. (Incidentally, if these figures are accurate, then the confidentiality around the cases must be holding really well, which makes reputational damage less likely)

This seems somewhat unlikely. The press release doesn't say anything about how the survey data was gathered, but there's no polling/survey company named, which suggests it was internal, which makes me suspicious. ATL has 160,000 members, so 1155 is less than 1% of them. Looking around their website, it seems that their normal survey method is to rely on voluntary responses.

This, of course, means that there's no attempt at getting a representative sample, and there's far more incentive for people who have been the subject of a false allegation to reply to the survey. I think it's incredibly likely that the survey is going to significantly overstate the scale of the problem.

Similarly, the quoted situations in the press release are presumably near to the worst case (for the teachers - the worst case for a pupil makes most of those seem mild), rather than a representative sample of what actually happens.

The BBC article also includes the following, presumably from a previous press release:

Last year, the union, which has 160,000 members across the UK, said pupils who made malicious false allegations about teachers should be placed on a school register to protect other staff.

The union said these records should be forwarded if a pupil moves.

It also called for charges to be brought against children as young as 10 who made false allegations.

Given that schools do not have a good record on dealing with bullying, and given that there's already a significant inevitable power imbalance between teacher and pupil, I don't think it's at all a good idea to place more risks and obstacles in the way of someone wanting to report misconduct. Seriously, charges?

The ATL claims from the survey that 50% of false allegations were dismissed instantly. I wonder what percentage of true allegations are also dismissed instantly and mistakenly.

¹ The survey asks about their current school in one, and them personally in another, so if the allegation happened to them at a previous school and they didn't know of any at their current school, they could answer "inconsistently". On the other hand, the strict wording of the question is not "has this taken place at your current school" but "has it happened to anyone working at your current school".

More fat-hate

So, from the BBC, comes the news that fat children reject the idea of weight-loss surgery. Well, it's not known to work for actual long-term weight loss, weight loss isn't known to be good for health (and in many cases can be bad), and has a significant risk of killing the patient. Maybe our education system isn't as bad as the papers say.

42% report being bullied for their size, 58% think that their weight will stop them getting a boyfriend or girlfriend and "a similar percentage" believe that it will harm their career prospects.

Given the relentless media imagery of "fat is bad", those percentages are actually better than I expected. Expect government intervention to increase size-related bullying and condemn fat sexuality shortly.

A Department of Health spokesman said: "Obesity is the biggest health challenge we face.

Really? A condition that's arbitrarily defined, has no statistically significant effect on lifespan for most groups, and is undoubtedly less harmful than malnutrition or starvation, is the biggest health challenge we face? I worry about that mindset.

The school said what?!

The Children's Legal Centre, among others, are calling for stricter legislation against bullying in schools. BBC News has an article on this. The article describes a particular case of bullying, which is horrific enough in itself - but the school's response just makes things worse.

[trigger warning]

In a BBC Breakfast News report Debbie (name changed to protect her children) said she had no choice but to consider legal action against the school her two teenage children used to attend.

She claims teachers stood by and watched as her son was attacked - in front of her - by about 40 other pupils.

"They had these temporary metal road signs the triangular ones and they just attacked him with it, beating him.

What would a failure to address serious violent attacks be without some victim-blaming.

The school says Debbie's child's special needs were behind many of the problems, and any bullying took place outside the school.

This doesn't appear to be a direct quote, but if it is a reasonable summary of the school's stance, it's extremely clear what's actually behind the "problems".