The Social Security Department has released a consultation draft of the Discrimination (Sex and Related Characteristics) (Jersey) Regulations today. The draft can be downloaded by clicking here.
The draft represents a great deal of hard work by the Social Security Ministers, Francis Le Gresley and Susie Pinel, and their team. It takes as its starting point the UK’s Equality Act 2010 but then improves upon it, taking into account areas where the Act falls short. Protection for transgender people is one of those areas and the draft has gone further than the UK in its recognition of the diversity of sex and gender by protecting both intersex and genderqueer people.
The highlights for trans* islanders are as follows:
- Gender reassignment is a separate protected characteristic. So, even if we don’t identify as man or woman (the two genders mentioned under the protected characteristic of sex), we are still protected from discrimination (direct, indirect or harassment) because we have the characteristic of gender reassignment.
- Intersex individuals are protected under the characteristic of sex. This is an addition Trans* Jersey asked for and recognises that there are more than two sexes and that being intersex is different from being trans*.
- The regulations say:
- “A person has the protected characteristic [of gender reassignment] if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s gender by changing the person’s physiological or other attributes that are associated with a particular gender.”
- “A person who has the protected characteristic is known as a transgender person and persons who share the characteristic are known as transgender people.”
- “A person is a transgender person whether or not the person has or intends to have any medical intervention in order to change any attributes that are associated with a particular gender.”
- This last paragraph protects the broadest population possible and gives protection to those trans* islanders who are genderqueer (ie. either have no wish to live as one particular gender or have no wish to fully transition to live as their recognised gender). This was something that Trans* Jersey asked for. As we know, living between genders is hard, whether through choice or because we are at an early stage in our transition. It is also when we are most likely to experience discriminatory behaviour.
- The exceptions to prohibited acts mention gender reassignment in two places only. Otherwise, there are no exceptions, i.e. no circumstances under which it is acceptable to discriminate against a transgender person.
- One exception is to allow religious organisations who do not wish to recruit a transgender person as a minister of religion to do so without being prosecuted. However, religious organisations may not discriminate in the provision of services to transgender people or in employing them in other capacities in the organisation.
- The other exception is to allow Jersey sporting organisations working under national or international competition rules (that may have specific clauses regarding trans participation) to comply with those rules without being prosecuted. Unfortunately, the sporting arena is an area that is a minefield for trans sportsmen and women with a lot of myths about trans people’s physicality still persisting. The International Olympic Committee (one of the more progressive) allow trans competitors so long as they possess their gender recognition certificate, have had hormone therapy for at least two years and have had surgery. (You can find out more about various sporting organisations’ policies here.) Fortunately, for those of us who are not elite atheletes, the draft regulations do not allow your local sports club to discriminate against you participating in sport for fun as your recognised gender.
If you have any queries about how the draft regulations might work in practice, please email email@example.com and we’ll do our best to answer them.