A heads up, dear readers, that Mr Menno is doing a premiere tonight at 21.00 GMT - a further interview with Connie Shaw following trantifa recently protesting against her talk at University College London.
Cleary explained and very useful, thanks Dusty. This must have taken a lot of careful work. I think you’ve convinced me but I’ll have to have a mull. 😁
Thanks, Moodie and good idea. I have already sent to Barry and Glinner. I am a member of LWS, Sex Matters and LGB Alliance so will send to all of them as well.
Hmmm. I'm not sure I entirely agree with you, Dusty. You are quite correct in pointing out that common law made a complete hash of protecting women and other vulnerable people, but The Equality Act tries to do too many things, and does them badly. It equates wildly different things, and allows some things to be devalued in the mix - age and disability spring immediately to mind - whilst elevating others too far (I'm mainly referring to belief here). Also, because of its monolithic nature, the EqA is difficult to amend when errors are found. I think the Act needs splitting up into specific areas, with appropriate remedies for each. I'd split it into separate Acts: Sex, Maternity and Relationships (amalgamating marriage and sexual orientation); Age; Disability; and Race. I'd have Belief and Religion covered under a free speech provision of a Bill of Rights, and (obviously) ditch gender entirely as a protected characteristic.
I think our disagreement is based on the oft quoted criticism of the EQA that it elevates certain characteristics - you also say devalues some, but same difference.
I just don't see that. Additionally I think the Forstater case (which is all about belief which some Terfs get annoyed about "It's not a belief" and I can understand that) could also have been argued under sex discrimination and the arguments are now much more featuring sex discrimination. So I just don't see the need to re-create lots of different acts rather than iron out the problems in the EQA. Re a Bill of Rights I haven't got to that yet - and you won't be surprised that my solution would be to amend the Human Rights Act 😀
I feel like I'm charging around in a no man's land - the ( so called) left won't amend anything , they'll just add to the problem ( eg Islamophobia and even more hate crime) while the right will repeal everything ...and the baby will go out with the bathwater!!
Not accusing you of throwing out the baby, of course, Jeremy because you would replace everything with separate acts - I just don't see the need or purpose for that.
It didn't occur to me that you were, but thanks for the clarification! My starting point is that some things clearly are being devalued/ignored employers - most people don't even know Age is a protected characteristic, for example, and it doesn't take long to find examples of Disability and Maternity carrying very little weight. I think that's because they are like worthy but drab clothes stuffed in this wardrobe full of more trendy (and cheaper) gear. My experience is that people can list Sex, Race, Religion, maybe Sexual Orientation, and "Gender" without difficulty, Disability with prompting, and then go "Errrrr", being surprised when the others are listed - and remember, I used to teach law and medical students and practitioners! Individual statutes *do* give weight, and consolidating statutes *do* go wrong. To my mind, it's time we admitted that the Equality Act is trying to compare chalk with cheese with titanium with towels, when each needs it's own discrete provision.
Those are good points and I note that in the recent BAFTA incident, race was quickly elevated above disability. However I am sticking with 'amend the EQA'. Also I am suspicious that some who hate the EQA don't actually want to replace it, like you do, with separate acts ( Suella B does not talk about separate acts) but want to entirely rely on the common law which I think will be disastrous!!
People also forget that everyone is protected by the EQA in one way or another. For example I could rely on being: a man; Irish; a person with gender critical beliefs; a white person.
Yes, the "let the judges sort it out" is a terrible idea. Since there is no likelihood of me becoming Supreme Leader of England in the near future, the likeliest outcome is going to be amendment of the single Act we have now. We do have to watch out for the "abolish it all" lot, though.
Agreed, Jeremy re watching out for the abolish it all brigade!!
The other thing is that a lot of them think that everything that Blair did was evil and should be removed regardless which is daft! You'd have to remove the Good Friday Agreement for example!!
A thoughtful engagement with the arguments of the pro-repeal position, thanks Dusty. You make a good case for reform and I think I mostly agree with you here.
But I do still wonder whether the characteristic of belief is too dynamic to sit alongside the other characteristics that are more straightforward recognitions of people’s material reality. I wonder whether it might be better for belief to be considered separately so that complexities such as the differing contexts within which people may want to express their beliefs (personal life / professional life / private business / public service) may be balanced with things like an employer’s right to protect their business from ideas that provably foster incompetency or undermine its ability to function in a way that can’t be reasonably mitigated.
Instead of businesses and services being compelled to foster good relations I think the emphasis should be 1. protecting appropriate expressions of belief in these formal contexts; 2. not discriminating against people for lawful expressions of beliefs outside of these contexts (except where an individual has a role that involves safeguarding and their ability to properly take on this responsibility is provably undermined); and 3. for the public sector in particular to avoid privileging ideologies not relevant or provably helpful to the organisation’s purpose, especially where it creates unnecessary points of conflict between believers and nonbelievers (e.g. pronoun rituals).
If done carefully, I think taking belief into account separately might allow for freedom of speech to be clarified and emphasised whilst allowing the influence of ideologies to be reasonably regulated. Could this work? Would be good to hear thoughts on this either way.
Interesting points about belief. The lawyers in Maya F's case clearly alighted on belief as a way of winning the case even though Terfs actually say they are talking about a fact. I think Sex Matters now phrase it as a belief in the fact of the immutability of sex. Rather awkward I agree.
Firstly, as I mention in the piece , sex discrimination could have been argued and I am pleased to see that it features in the nurses' cases.
I mentioned the David Toshack case in the latest update and that will be very interesting because it pits gender critical belief against a pro trans policy. I think these policies need to be blasted out. It's like requiring all employees to accept that the earth is flat!!!
The presence of the word 'gender' both in the EQA and the GRA is very problematical and that clearly needs to go.
Yes, there are a few upcoming appeals where I’m hoping sanity will be restored! Completely agree about removing gender which is essentially an extra belief characteristic. Thanks for the mull 😄
Yes the appeals will be important I think , Becca. We now await the initial hearing for Jennifer Melle and Ben Woods ( the former Waitrose employee) and appeals for Sandie Peggie, Maria Kelly and presumably now David Toshack.
Nearly forgot- Happy St Patrick’s Day. ☘️ Shame France nicked the six nations title but well done Ireland for the triple crown (whatever that means)….ah, just googled it.
Could I be cheeky and ask you for an example of a problem that might occur without the Equality Act …is it that discrimination is much easier without it, such as in the examples you give? Are we not all equal under common law? Is it that common law is more difficult to enact?
Having articulated those questions, I’ve now reread your piece and I can see what you’re getting at. I like the idea of the act being a shield rather than a sword and that it’s not the act’s fault if people have misused it. So it needs reform and tightening up. I agree completely that we should be sovereign and not beholden to European courts. If Reform gets in and abolishes it, will they need to enforce common law more robustly? Or replace it?
Thanks very much for your very useful questions and I may well add an addendum as a result.
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 reports on today, 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 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.
Thanks for taking the trouble Dusty, that is really useful and confirms what I was beginning to understand. I don’t have your expertise and I’ve struggled with this for some time but I think the main message (for me) is that without the Act, everything becomes much more cumbersome and is open to interpretation thus putting the onus on individuals to appeal bad judgements. Could you call the Act a safety net as well as a shield?
I think safety net would be a good description. In my time I rarely expected that a case would win solely because of the EQA!! Same applies to the Human Rights Act as it happens though again there have been some seriously bonkers lower court decisions arising from that too!!
A heads up, dear readers, that Mr Menno is doing a premiere tonight at 21.00 GMT - a further interview with Connie Shaw following trantifa recently protesting against her talk at University College London.
Hopefully see some of you in the chat. 😃
Dusty
Happy St Patrick's Day to all my readers ☘️🇮🇪🍾
This is very thoughtful and well-expressed, and I agree with what you say. We should keep the parts that work and ditch the parts that don't.
Thanks, Sarah
Dusty
Cleary explained and very useful, thanks Dusty. This must have taken a lot of careful work. I think you’ve convinced me but I’ll have to have a mull. 😁
Thanks, TT let me know once you've mulled
Dusty
yep agreed - mulling very important when changing legislation - wonder what Sex Matters have made of this ....
Thanks, Moodie and good idea. I have already sent to Barry and Glinner. I am a member of LWS, Sex Matters and LGB Alliance so will send to all of them as well.
Will let you know if I get any answers.
Dusty
Good point
Hmmm. I'm not sure I entirely agree with you, Dusty. You are quite correct in pointing out that common law made a complete hash of protecting women and other vulnerable people, but The Equality Act tries to do too many things, and does them badly. It equates wildly different things, and allows some things to be devalued in the mix - age and disability spring immediately to mind - whilst elevating others too far (I'm mainly referring to belief here). Also, because of its monolithic nature, the EqA is difficult to amend when errors are found. I think the Act needs splitting up into specific areas, with appropriate remedies for each. I'd split it into separate Acts: Sex, Maternity and Relationships (amalgamating marriage and sexual orientation); Age; Disability; and Race. I'd have Belief and Religion covered under a free speech provision of a Bill of Rights, and (obviously) ditch gender entirely as a protected characteristic.
Hi Jeremy
Thanks for that.
I think our disagreement is based on the oft quoted criticism of the EQA that it elevates certain characteristics - you also say devalues some, but same difference.
I just don't see that. Additionally I think the Forstater case (which is all about belief which some Terfs get annoyed about "It's not a belief" and I can understand that) could also have been argued under sex discrimination and the arguments are now much more featuring sex discrimination. So I just don't see the need to re-create lots of different acts rather than iron out the problems in the EQA. Re a Bill of Rights I haven't got to that yet - and you won't be surprised that my solution would be to amend the Human Rights Act 😀
I feel like I'm charging around in a no man's land - the ( so called) left won't amend anything , they'll just add to the problem ( eg Islamophobia and even more hate crime) while the right will repeal everything ...and the baby will go out with the bathwater!!
Sigh
Dusty
Not accusing you of throwing out the baby, of course, Jeremy because you would replace everything with separate acts - I just don't see the need or purpose for that.
Dusty
It didn't occur to me that you were, but thanks for the clarification! My starting point is that some things clearly are being devalued/ignored employers - most people don't even know Age is a protected characteristic, for example, and it doesn't take long to find examples of Disability and Maternity carrying very little weight. I think that's because they are like worthy but drab clothes stuffed in this wardrobe full of more trendy (and cheaper) gear. My experience is that people can list Sex, Race, Religion, maybe Sexual Orientation, and "Gender" without difficulty, Disability with prompting, and then go "Errrrr", being surprised when the others are listed - and remember, I used to teach law and medical students and practitioners! Individual statutes *do* give weight, and consolidating statutes *do* go wrong. To my mind, it's time we admitted that the Equality Act is trying to compare chalk with cheese with titanium with towels, when each needs it's own discrete provision.
Hi Jeremy
Those are good points and I note that in the recent BAFTA incident, race was quickly elevated above disability. However I am sticking with 'amend the EQA'. Also I am suspicious that some who hate the EQA don't actually want to replace it, like you do, with separate acts ( Suella B does not talk about separate acts) but want to entirely rely on the common law which I think will be disastrous!!
People also forget that everyone is protected by the EQA in one way or another. For example I could rely on being: a man; Irish; a person with gender critical beliefs; a white person.
Dusty
Yes, the "let the judges sort it out" is a terrible idea. Since there is no likelihood of me becoming Supreme Leader of England in the near future, the likeliest outcome is going to be amendment of the single Act we have now. We do have to watch out for the "abolish it all" lot, though.
Agreed, Jeremy re watching out for the abolish it all brigade!!
The other thing is that a lot of them think that everything that Blair did was evil and should be removed regardless which is daft! You'd have to remove the Good Friday Agreement for example!!
Dusty
A thoughtful engagement with the arguments of the pro-repeal position, thanks Dusty. You make a good case for reform and I think I mostly agree with you here.
But I do still wonder whether the characteristic of belief is too dynamic to sit alongside the other characteristics that are more straightforward recognitions of people’s material reality. I wonder whether it might be better for belief to be considered separately so that complexities such as the differing contexts within which people may want to express their beliefs (personal life / professional life / private business / public service) may be balanced with things like an employer’s right to protect their business from ideas that provably foster incompetency or undermine its ability to function in a way that can’t be reasonably mitigated.
Instead of businesses and services being compelled to foster good relations I think the emphasis should be 1. protecting appropriate expressions of belief in these formal contexts; 2. not discriminating against people for lawful expressions of beliefs outside of these contexts (except where an individual has a role that involves safeguarding and their ability to properly take on this responsibility is provably undermined); and 3. for the public sector in particular to avoid privileging ideologies not relevant or provably helpful to the organisation’s purpose, especially where it creates unnecessary points of conflict between believers and nonbelievers (e.g. pronoun rituals).
If done carefully, I think taking belief into account separately might allow for freedom of speech to be clarified and emphasised whilst allowing the influence of ideologies to be reasonably regulated. Could this work? Would be good to hear thoughts on this either way.
Hi Becca
Interesting points about belief. The lawyers in Maya F's case clearly alighted on belief as a way of winning the case even though Terfs actually say they are talking about a fact. I think Sex Matters now phrase it as a belief in the fact of the immutability of sex. Rather awkward I agree.
Firstly, as I mention in the piece , sex discrimination could have been argued and I am pleased to see that it features in the nurses' cases.
I mentioned the David Toshack case in the latest update and that will be very interesting because it pits gender critical belief against a pro trans policy. I think these policies need to be blasted out. It's like requiring all employees to accept that the earth is flat!!!
The presence of the word 'gender' both in the EQA and the GRA is very problematical and that clearly needs to go.
Thanks for all your points and some good mulling
Dusty
Yes, there are a few upcoming appeals where I’m hoping sanity will be restored! Completely agree about removing gender which is essentially an extra belief characteristic. Thanks for the mull 😄
Yes the appeals will be important I think , Becca. We now await the initial hearing for Jennifer Melle and Ben Woods ( the former Waitrose employee) and appeals for Sandie Peggie, Maria Kelly and presumably now David Toshack.
Dusty
There is also a re-trial of Reverend Randall's case!! Difficult keeping up!!!!!!
I really hope Reverend Randall gets a fair judgment; his case has been going on for so long that it has become a punishment in itself!
Yes I hope so, Becca, and as usual the process is the punishment!!
Dusty
Fantastic points, thanks Becca. I’m getting more and more confused 🤪 more mulling required I think.
Thanks TT. Dusty’s definitely provoked some good mulling 😄
Nearly forgot- Happy St Patrick’s Day. ☘️ Shame France nicked the six nations title but well done Ireland for the triple crown (whatever that means)….ah, just googled it.
Happy Paddy's Day, TT. ☘️
It was a great tournament and in the end I was pleased that Ireland got the Triple Crown and came second overall.
Dusty
Glad you enjoyed it.
Could I be cheeky and ask you for an example of a problem that might occur without the Equality Act …is it that discrimination is much easier without it, such as in the examples you give? Are we not all equal under common law? Is it that common law is more difficult to enact?
Having articulated those questions, I’ve now reread your piece and I can see what you’re getting at. I like the idea of the act being a shield rather than a sword and that it’s not the act’s fault if people have misused it. So it needs reform and tightening up. I agree completely that we should be sovereign and not beholden to European courts. If Reform gets in and abolishes it, will they need to enforce common law more robustly? Or replace it?
Hi TT
Thanks very much for your very useful questions and I may well add an addendum as a result.
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 reports on today, 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 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.
Let me know if any further questions 😊
Dusty
Have now added an addendum 😊
Thanks again, TT, those questions were very helpful to me
Dusty
Thanks again, will keep mulling.
Thanks for taking the trouble Dusty, that is really useful and confirms what I was beginning to understand. I don’t have your expertise and I’ve struggled with this for some time but I think the main message (for me) is that without the Act, everything becomes much more cumbersome and is open to interpretation thus putting the onus on individuals to appeal bad judgements. Could you call the Act a safety net as well as a shield?
Hi TT
Glad you found that useful.
I think safety net would be a good description. In my time I rarely expected that a case would win solely because of the EQA!! Same applies to the Human Rights Act as it happens though again there have been some seriously bonkers lower court decisions arising from that too!!
Dusty