The Equality Act

Dusty's One Offs. No. 21. #BeMorePorcupine.

Many on the right and, indeed, many eminent Terfs ( such as Kellie-Jay Keen and Barry Wall, aka EDI Jester - both of whom I have the greatest of respect for I hasten to add) believe that the Equality Act 2010 (EQA) should be repealed. I think that that amounts to throwing the baby out with the bathwater as I’ll attempt to explain here. I do feel that the EQA needs radical amendment. I think this is such a fundamental issue that I will make this available to all readers and subscribers and I hope my paid subscribers will understand this. Further instalments of the ‘manifesto’ (see below) will be behind a paywall.

This is a continuation of my construction of what amounts to a personal Terfy political manifesto. The first three parts ( behind paywalls) are here:

Incitement to Violence: The Brandenburg Test

https://dustymasterson.substack.com/p/incitement-to-violence-the-brandenburg

Abandoned On The Left

https://dustymasterson.substack.com/p/abandoned-on-the-left

Defending Free Speech

https://dustymasterson.substack.com/p/defending-free-speech

However this work does take enormous effort so please consider becoming a paid subscriber for less than a cup of coffee per month or else buy me a coffee.

Statue of Justice, US Supreme Court

Suella Braverman (SB) wrote the article below for the Daily Telegraph so I will make my arguments by responding to this article. The article is in italics.

Reform will repeal the Orwellian Equality Act (23 February 2026)

“All animals are equal, but some animals are more equal than others.” When George Orwell wrote those words in Animal Farm, he meant them as a warning against totalitarian Russia under Stalin. Systems erected in the name of fairness, he illustrated, can – if left unchecked – become instruments of injustice.

It is an uncomfortable thought, but one that increasingly resonates in modern Britain. The Equality Act of 2010 was conceived under Gordon Brown by Harriet Harman to consolidate protections and ensure that no one would suffer discrimination on the basis of immutable characteristics. That aim was honourable.

SB’s thesis ( as that of many on the right) is that Tony Blair’s Government was the beginning of the rise of Woke in the UK and she would then say that it flows from that that any major legislation passed under his Government must be evil and must be repealed. For such an intelligent woman, this is a remarkably stupid argument. The EQA was an amalgamation of previous discrimination legislation such as the Race Relations Act 1965 ( and later amendments), the Sex Discrimination Act 1975 ( and later amendments) and the Disability Discrimination Act 1992 (and later amendments). Having used the EQA over many years of my working life ( and having used the previous statutes) I can confirm that it is intended as and is useful as a shield not a sword. I recall a case where a Gypsy family were refused a meal in a pub solely because they were Gypsies. That case settled very quickly but solely because you are a Gypsy does not provide you with some magic wand!

Problems have arisen from Stonewall and others blatantly misusing and misrepresenting the EQA.

Common law is a legal system primarily developed through binding judicial decisions (precedents) and custom rather than statutes passed by legislatures. Originating in England, this "judge-made" law ensures consistency by requiring courts to follow rulings from previous similar cases.

So, additionally, SB and others place reliance on the common law right of equality before the law. This is a fine principle but, in the 1950s and the 1960s, this did not stop rampant discrimination against black people, Irish people, women, gays and lesbians. Statutory protection was required to ensure protection from discrimination.

Yet in practice it has inspired a culture in which equality before the law has been replaced by equality of outcome, engineered by a ballooning DEI industry and interpreted through progressive ideology. This is why a Reform UK government will scrap the Equality Act.

Very true that a ‘progressive ideology’ has interpreted the EQA to push forward equality of outcome instead of equality of opportunity but they have provided false interpretations of the EQA in doing this. Many organisations have relied on ‘Stonewall Law’ instead of taking proper legal advice. In recent cases such as Forstater v CEGD, For Women Scotland and others we see the correct interpretation of the EQA. These cases would not have succeeded if the EQA had not been there.

To be crystal clear, protections against discrimination in the workplace are not only necessary but civilisational. A serious country does not tolerate the dismissal of a person because of their race, sex or disability. Britain did not need to wait until 2010 to discover this moral truth. Such safeguards existed for decades, refined through statute and precedent, long before the Equality Act came along. Much of what was valuable in that Act was not new at all, but copied. That won’t change under a Reform government.

See what I say above - unfortunately, legislation was required.

Where the Equality Act went wrong, however, was to embed a far more expansive doctrine of state-mandated social engineering – one influenced heavily by the law of European Union and the European Convention on Human Rights. The result was a shift away from the timeless British principle of equal treatment under neutral law, towards something far more subjective, interventionist and, ironically, unequal.

I agree that we should leave the European Convention on Human Rights (ECHR) and should no longer be bound by the European Court of Human Rights. This is mainly on the basis of the old Tony Benn sovereignty argument that we should not be bound by foreign courts or foreign parliaments. In any event, the Human Rights Act has incorporated the ECHR into domestic legislation and the HRA can be overseen by our own Supreme Court.

Consider the public sector equality duty in section 149. Its language appears innocuous, even virtuous. Who, after all, could object to “fostering good relations”? But in practice, it has placed public authorities under intense pressure not merely to avoid unfairness, but to demonstrate positive discrimination; the antithesis of a meritocratic society. Combined with the “positive action” measures in sections 158-159, what started as a shield has now become a sword in the culture wars.

The Public Sector Equality Duty (PSED) is contained at section 149:

“(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2)A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5)Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)tackle prejudice, and

(b)promote understanding.

(6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation”

  On the face of it the PSED is a positive thing but I accept that it has been misused to support things such as Diversity, Equity and Inclusion. I now think it should be repealed.

  Without boring you with the full details, sections 158 and 159 are the ‘positive discrimination’ provisions. It is important that, for example, a women’s refuge or a rape crisis centre are enabled to employ only women staff for obvious reasons. However, I accept that these sections are currently too loose thus allowing employers, for example, to decide to only employ someone from a particular protected group because there were not enough people employed from this group. This is, to me, a misuse of that power since employment should be based on equality of opportunity - in other words, you employ ( subject to what I say above about such things as women’s refuges and rape crisis centres) only those who are best suited to the job regardless of any protected characteristics. Amendment of these sections would take a lot of work and I don’t have the time to achieve that here.

  Across the public sector – from the Civil Service to institutions such as the Royal Air Force, the NHS, our intelligence services, the Sentencing Council, some police forces and the Bank of England – recruitment schemes and internal programmes have too often excluded white men purely because of their race and sex. This is two-tier equality.

I agree. See what I say above.

Moreover, the Act gave birth to a vast HR industry devoted to diversity training, grievance arbitration and ideological instruction. Concepts like “unconscious bias”, “microaggressions”, “white privilege”, “allyship” and “diversity targets” have migrated into everyday professional life through mandatory training.

I agree. See above.

They have not obviously improved workplace harmony or productivity. Instead, they have imposed cost, burden and division where it once never existed. And woe betide anyone who dares question the dogma.

Britain is not the irredeemably racist or “phobic” society these structures presume. Analysis by the campaign group Don’t Divide Us found that only 5 per cent of race discrimination claims succeed at tribunal. As the education scholar Alka Sehgal Cuthbert has argued, the effect has been to normalise a culture of formalised grievance rather than to cultivate resilience, mutual respect and shared purpose.

People taking spurious claims does not mean the Act itself is at fault for that.

What makes this more frustrating is that since 2010, the Conservative Party, despite its spin, did absolutely nothing to confront the deeper structural problem. In fact, it exacerbated it with its overactive equalities department and ministers. Never forget that Tory MPs took the knee, confessed to benefiting from white privilege and supported BLM. Those of us who argued for repeal of the Equality Act were dismissed.

Reform UK’s argument is not that Britain should abandon fairness, but that it should return to its older, sturdier definition. It is why we will introduce legislation that restates the foundational protections against discrimination on an explicitly individual basis.

It seems to me that this is throwing out the baby with the bathwater. Additionally repeal of the EQA would bring back into force certain provisions previously removed by it. It would cause chaos and unnecessary chaos.

Group rights, diversity targets and positive discrimination will be out. We will restore the oldest and most British of principles: that every person is equal before the law and that no person may be treated unfairly because of who they are. These protections will be at least as robust as those that existed before 2010.

The amendments I suggest will ensure that diversity targets and positive discrimination ( apart from in the circumstances I mentioned above which SB strangely does not mention) are no more. I don’t quite know what is meant by ‘group targets’. Everyone is protected by the EQA. No one protected characteristic is above another one but in certain circumstances one characteristic will clearly be in play eg sex discrimination as regards women’s single sex spaces - see further below.

Our nation cannot cohere if our laws encourage our citizens to see one another through the prism of group identity. Nor can we flourish if merit becomes secondary to entitlement. The Great Britain in which I believe is one where everyone, regardless of race, religion, class or disability, can reach as high as their effort, character and talent may take them.

The task now is not to abandon equality, but to rescue it: to restore a culture focused on personal responsibility, not victimhood; excellence, not mediocrity; and unity, not division. That’s why a Reform government will get rid of the equalities department and equalities minister and repeal the Equality Act.

There is a grave risk that abolishing all of the above will actually increase inequality. SB does not explain what, if anything other than a vague concept of equality before the law ( sounds good but didn’t work), will replace all this.

SB does not refer to EQA Schedule 3 Part 7 which deals with single sex provision:

“26(1)A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—

(a)a joint service for persons of both sexes would be less effective, and

(b)the limited provision is a proportionate means of achieving a legitimate aim.

(2)A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if—

(a)a joint service for persons of both sexes would be less effective,

(b)the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and

(c)the limited provision is a proportionate means of achieving a legitimate aim.

(3)This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.”

What does SB propose to do if she removes this absolutely fundamental part of the Act regarding women’s single sex spaces!!?? This is a perfect example of my baby with the bathwater argument.

Note that in the UK employers must provide “suitable and sufficient” toilet and washing facilities under the Workplace (Health, Safety and Welfare) Regulations 1992. Separate facilities for men and women are required, unless each toilet is in a separate, lockable room.

I believe that the EQA should be amended to make clear that, outside of these workplace regulations, public toilets, changing rooms etc should be provided as separate facilities for men and women without any caveat of it being a proportionate means of achieving a legitimate aim.

SB makes no mention of the vital question of the protected characteristic of ‘gender reassignment’ ( see EQA s7). There is no such thing as ‘gender identity’. This is the protection of a fiction. This characteristic should be removed from the Act.

As an aside, but for similar reasons, the Gender Recognition Act 2004 should be repealed.

In conclusion, the above suggested amendments would involve substantial further work in terms of the details. There are a vast number of other matters dealt with by the EQA that SB is also proposing to throw out. However, I hope I have explained why I feel it is absolutely vital that the EQA is retained while serious amendments to it are made.

Addendum

Thanks to a reader for asking some very useful questions which has led me to provide this addendum:

Looking just at employment law, principles of fairness have been established through case law and I am fairly certain that the majority of unfair dismissal cases would rely on these principles and not on the EQA.

Let’s say A is a train guard and he asks passenger B to leave the train because B cannot produce a valid ticket. B complains and, without properly investigating the matter, A’s manager sacks him. A would almost certainly win a tribunal claim even though the case has got nothing to do with the EQA.

In terms of misuse, I note that it is very unusual for costs to be awarded in a tribunal case (unlike a court case). I think the question of costs in tribunals should be looked at again. The lack of relatively automatic costs awards deters many lawyers from taking such a claim where the client cannot really afford to pay the lawyer. And this can lead to people lodging claims themselves when they would have been advised the case was hopeless if they went to a lawyer.

The Forstater case and many subsequent cases (Fahmy, Phoenix etc) and the For Women Scotland judgment were built on the EQA.

You can get bad decisions from lower court judges ( eg. Sandie Peggie, Maria Kelly and one that EDI Jester has just reported on, David Toshack) but I would confidently predict that they will be overturned on appeal. Maya Forstater had to appeal her initial loss.

If Restore Britain or Reform were in power and repealed the entire EQA they would have to replace it with something else. The fact is that the common law failed previously to avoid discrimination and legislation is really required. What is the point in creating chaos and creating lots of smaller acts of parliament when you can simply amend the EQA appropriately.

ALL THOUGHTS GRATEFULLY RECEIVED.

OMG, I think we need some music. Over to Whitney Houston.

#BeMorePorcupine.