Draft Sex Discrimination Law released

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.

sportIf you have any queries about how the draft regulations might work in practice, please email admin@transjersey.org and we’ll do our best to answer them.

Discrimination Law update

susiepinelTrans* Jersey and Liberate met with Susie Pinel, Social Security Minister, on 23 January 2015 to discuss the progress of the next phase of Jersey’s discrimination law that, amongst other things, deals with discrimination of transgender people.

The good news is that, although more work needs to be done on the parts of the new law that deal with pregnancy mainly, the policy team are confident that it will be in force by September 2015. It is hoped that a draft document might be publicly available soon.

From the partial draft available at the meeting, the parts of the law dealing with sexual orientation are well-written and provide protection for sexual minorities.

Those parts of the law dealing with gender reassignment still need a bit of work to get the wording right, but the basic principles are in place. Trans* islanders will be protected no matter what stage of their transition they are at. This includes those who identity as trans* but have not yet started any form of treatment. Intersex islanders will also be protected. Both these inclusions are improvements on the UK’s legislation.

It was obvious from the meeting that the policy team are working hard to make Jersey’s law as good as it can be and have learned from mistakes made in the UK’s Equality Law. This is all positive news for trans* islanders.

Discrimination Law update

Trans* Jersey met with Senator Francis Le Gresley on 29 July 2014. In attendance were Martin Gavet (Liberate), Ellie Jones (Liberate), Pippa McCarthie (Liberate), Kate Morel (Policy Principal, Social Security Dept) and Darren Newman (Legal Consultant).

Vic Tanner Davy presented Trans* Jersey’s response to the consultation document. You can download the Powerpoint presentation here.

The presentation started by discussing the differences between sex and gender. The consultation document uses the word “sex” when it is often referring to gender. It was felt that it would be helpful to unpack the differences in order to better understand the non-binary nature of both features for trans* people and intersex people.

The use of the “X” maker on passports and birth certificates was touched on. Trans* Jersey would like to see this option being used in Jersey but, at the moment, although it is internationally recognised and legal in the UK, it is not policy to allow people to elect to have it on their documents.

The meeting acknowledged that there are more than two genders and, because of that, some explanation and guidance on the spectrum of gender would be required to assist organisations like the Jersey Tribunal and the Jersey Advisory and Conciliation Service in their decision making. The gender grid was put forward by Trans* Jersey as one way to define multiple genders.

Trans* Jersey went on to bust three myths about trans people that had, without malice, crept into the consultation document by implication:

  • That trans people’s medical and surgical histories are other people’s business, and that surgery is a requirement to be “really” trans;
  • That transition has an easily definable start and end, and that it will be the same journey for every trans person;
  • That trans* people cannot be trusted to use facilities marked for use by the gender they present as.

bathroom signThe meeting was hugely sympathetic to this last point and understood the need to ensure that the law does not accidentally enshrine discrimination around this point. It was felt that, when the draft law is debated in the States of Jersey, this point will be the one that takes up most time and causes most concern. The meeting agreed that educating the public and politicians to allay fears around this point would be helpful. The Minister and his team said that they would welcome any help Trans* Jersey and Liberate could provide in this regard.

The meeting discussed how trans people should be treated with regard to exemptions under the law for gender-specific employment and sports teams. Trans* Jersey suggested that, for those employers, such as a women’s refuge, who are exempt from discriminating when hiring, transmen should not expect to be able to be employed but that transwomen should be considered for the job along with natal born women.

Trans* Jersey explained that sports teams were still a difficult area for trans people, even at the professional level, as transwomen in particular were seen to have an unfair advantage over natal born women. In fact, research has shown this is not true. Once a transwoman starts hormone therapy, she looses the muscle bulk and testosterone advantage that she had.

In essence, for all purposes, the moment that someone self-reports as transgender they should be treated as the gender they present as – even if they are worse off. The meeting then asked about pension entitlement for trans people and Trans* Jersey said that the same rule applies. For transmen, that might mean working an extra 5 years before they are eligible for their pension.

Trans* Jersey, finally, suggested some wording, based on the UK’s Equality Act, for how the new law might be drafted.

Liberate stated their support for the consultation’s proposals on sexual orientation and asked for confirmation that maternity/paternity leave applies equally to same-sex couples as to opposite-sex couples. The Minister confirmed that same-sex couples are equally covered by the law.

The draft legislation is expected to be publicly available in February 2015.