Rebecca Long-Bailey’s team has clarified the Labour leadership contender’s position on same-sex spaces and the Equality Act 2010 to the New Statesman following her interview with Andrew Marr yesterday.
Long-Bailey supports reform of the 2004 Gender Recognition Act (GRA) to allow for trans people to self-identify as their preferred gender, as do all the candidate for the Labour leadership. Her team has clarified, however, that she would not reform the 2010 Equality Act, as has been reported following her interview with Marr.
In the increasingly heated debate over trans rights, confusion is widespread over the difference between what is covered by proposed reforms to the GRA to allow self-identification, as backed by Labour and the Liberal Democrats, and current provisions in the Equality Act.
The Equality Act identifies “gender reassignment” (i.e. being trans: having a gender identify that is different to that assigned to you at birth) as a protected characteristic, but contains a lengthy proviso on provision for trans people in same-sex spaces:
Exception allowing single sex services to discriminate because of gender re-assignment
The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.
Application of this exception must be objectively justified as a means of achieving a legitimate aim. An example given in the explanatory notes to the Act is that of a group counselling service for female victims of sexual assault where the organisers could exclude a woman with the protected characteristic of gender reassignment if they judge that clients would be unlikely to attend the session if she was there.
Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment. As with paragraph 28 and other exceptions under the Equality Act, such exclusion must be a proportionate means of achieving a legitimate aim.
In other words, the law currently allows for the separate treatment, or exclusion, of trans people from single-sex spaces where it is deemed that providing the service to the trans person would be detrimental to providing the service to other users. The law is clear, however, that these spaces must proceed for a starting point of welcoming and respecting a trans person, and this exception can only be used on a case-by-case basis as “a proportionate means of achieving a legitimate aim.”
As it stands, there are no proposals from any political party to reform this aspect of the Equality Act. In the debate around proposed GRA reform, however, the two are often confused and conflated, with commentators frequently inferring that self-identification would allow for a self-identified trans woman to enter same-sex spaces with nothing in the law to allow service providers to prevent them. Given the Equality Act above, this is not the case.
The confusion over legislation on trans rights was evidenced by Marr asking Long-Bailey about the Equality Act and receiving an apparent answer about the GRA.
Marr: Now all of this, the law over-arching this, is the Equality Act of 2010, which is therefore of course a Labour act. That says that trans people, even if they have got identifying documents, can be excluded from certain women-only spaces. Given what you’ve said, would you change that law?
Long-Bailey: I do and I want a right to self-ID for trans people. It’s not an easy journey to go on as a trans person to determine changing your sex. We know the mental health issues that many within our trans community face and they’ve got extremely high suicide rates and we should never underestimate the pain that those individuals got through –
Marr: So you would change that law?
Long-Bailey: I want the right to self-ID and I want that enshrined in law.
It is understood that Long-Bailey did not mean to suggest she would reform the Equality Act. A spokesperson for Long-Bailey told the NS: “Rebecca said she supports legislating to introduce self-identification rights, which is existing Labour policy, and did not mention legislation on women’s-only spaces.”
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