Introduction
How do public bodies (e.g. DWP, schools), private bodies (e.g. Tesco, British Airways) and charities (e.g. Oxfam, RSPCA) write policy whilst avoiding unlawfully discriminating against someone? How can they make an environment supportive of one group without inadvertently making it worse for another? How can they use “inclusive” language without, in the process, confusing some of the most vulnerable in society?
I am not going to discuss the merits of any policy, but rather the process of making policy.
But first some law:
For public bodies
Public Sector Equality Duty (PSED)
Firstly, we need to consider the PSED set out in s149 Equality Act 2010 for public bodies and those performing public functions:
(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.
This is a duty which applies to public bodies or those “exercising public functions.” A breach of this duty may constitute grounds for judicial review of the decision in the High Court.
You may have heard of an Equality Impact Assessment (“EIA”). Undertaking an EIA is not legally required but is recommended as the court will want to see evidence of compliance with s149.
For all bodies covered by Equality Act
Indirect discrimination
Now s149 doesn’t apply to most private bodies. But a similar exercise is wise to avoid unintended indirect discrimination (under s19 Equality Act 2010).
Indirect discrimination happens when:
- There is a policy that applies/impacts in practice, generally or to more than one protected characteristic (“p.c.”), (even if it only explicitly references one p.c. like a “disability policy” or a “trans policy”)….
- And it particularly disadvantages one p.c. (compared to people who don’t share that p.c.) because of their p.c.
[We know from the case of Ewaida (the case concerning a Christian British Airways employee who, as part of her religious practice, wanted to wear a necklace with a large cross over her work uniform) that it needs only to be more than one individual with that p.c. even if it is only a few people. This is sometimes called “small group disadvantage”]
- And the policy maker cannot objectively justify it by showing it is a proportionate means to achieve a legitimate aim. This looks at how widely drawn the policy is and why it has been made.
Some practical examples (How *not* to do it)
So, let us apply this to a policy:
South London and Maudsley NHS Trust “Guidance on supporting adult transgender service users”. In February 2020 you could find it here (but it has since vanished):
Why this one? I have selected this, not for the subject matter, but because it is one of the most badly drafted EIAs I have ever seen (and I have seen a lot).
The Equality Impact Assessment reads like this:
It looks exclusively at the impact of the policy (regarding issues like who can use which bathrooms, single sex wards and support groups, physical health care and views of other service users etc.) by only focusing on the impact on trans people.
It then concludes that the policy will benefit transgender people of all races, sex, disabilities etc.
From the document, it appears that they have not even thought about the potential impact of any aspect of the policy, intended or unintended, on people who are not trans identified, including women, people of different faiths or races, disabled people, older people or those individuals with any other protected characteristic.
Subject to time limitations, this could have left them exposed to a judicial review (a legal challenge to the policy) or an indirect discrimination claim by someone of a different protected class. To show this policy was “a proportionate means to achieve a legitimate aim” they would need to point to evidence and analysis which demonstrates that they have thought about all protected groups and made a policy which balances their needs objectively. An EIA of this kind would leave them struggling to do so.
Another example is when an organisation decides they must change messaging to become “less gendered” like this (an example from the US):
In seeking to be inclusive to trans men (a good thing), they don’t seem to have thought about the impact on women with limited English, those with learning disabilities or brain injuries. I am advised by specialists, this sort of health messaging would be frankly useless. Is “person who menstruates” better than “women” for these people? Were they consulted or even considered?
In the UK, for example, people with learning disabilities come within the p.c. of disability. In addition to being protected from direct and indirect discrimination, they are also entitled to disability related reasonable adjustments to work, education, service provision etc. Such a health messaging policy, if replicated here, could be indirect disability discrimination and failure to provide disability related reasonable adjustments.
So how to do it right?
Tips for Equality Act compliant policy making
- If there is existing policy, why is it written as it is? What does the current policy do and how can it be understood? This is following the “Chesterton’s Fence principle” (which I learned about on Mumsnet, of all places).
- Ensure you have done good equality monitoring of the current service against each of the protected classes in the Equality Act (NB: always monitor for “sex” not “gender” as gender isn’t a p.c. If you have a good reason, you can monitor for both, but at least monitor for sex and the other protected characteristics).
- Check for any group that is disproportionately adversely affected by policy (or likely to be) so note evidence like low uptake of service, or pattern of usage which might suggest certain needs.
- Do check relevant law (both statutory and case law) that is relevant, as well as guidance from the Equality and Human Rights Commission. Conduct your own research to see if there are concerns expressed about the issue.
- Consult widely; not just the lobbyists or spokespeople but people in the community and the users of the service; people of all classes. Think of yourself as a discrimination solicitor with a long line of concerned clients representing several different people from each protected class concerned about the policy. Why are they concerned? How does it impact them? Could the policy be rewritten or reduced?
- Make draft policy explaining on what evidence you have made it and why.
- Consult on the draft policy.
- Questions to think about: Is the policy too widely drawn or could it be narrowed down? Does a policy favour one p.c. at the expense of another? Can it be rewritten to balance it more? Has anyone suggested how it could be done another way?
- Pay attention to any statutory exceptions to normal rules in the Equality Act. There are numerous ones in the Act including positive discrimination, religious exemptions in certain employment, occupational requirements to allow employment only of people with particular protected characteristics and single sex exemptions for facilities.
Why are exceptions important? Parliament recognised it was important that, where objectively appropriate, these particular exceptions to general rules against discrimination are available. Whether you make a policy to use or not to use them, you will need to explain with reference to good evidence, why you have made this decision. It is not sufficient to just say, ‘We don’t have to’. You need to consult and document evidence carefully as to why, or why not, you have used the exceptions.
- Make policy. Think about the actual wording of all policies. Some findings of indirect discrimination don’t relate to an intentional decision but thoughtless drafting.
- After implementing policy, get feedback and equality monitoring and review it all over again at regular intervals.
Conclusion
Single issue equality rights are a real bear trap for the unwary. By focusing on the rights of one oppressed group you can (unintentionally) discriminate against other protected classes. We are all at risk in this respect. Better to think of equality issues in the round, noting the nine protected classes in the UK Equality Act & taking account of the fact that “small group disadvantage” i.e. even if policy only affects some of the people who have a p.c., as with sex or race, it can still constitute discrimination.
So, we need to balance all competing needs; and examine any potentially adverse impact of a proposed step. The concept of conflicting rights is very normal in equality law. Anyone saying, “There is no conflict of rights” (meaning there is never one between say sex and gender reassignment) doesn’t understand equality law.
Published by Woman’s Place UK, 20 July 2020
This blog is loosely based on the talk I gave, with Julian Norman, at the WPUK Women’s Liberation Conference in February 2020.