Equality Legislation Review Template Letter

The public consultation of the review of the Equality legislation and Equal Status Acts has been extended to the 8th of December. 
We have taken legal advice from a specialist barrister and based our template submission on that advice.  Please help us ensure that the views expressed in our poll and held by the majority, are reflected; namely, that spaces and services should be separated on the basis of biological sex not gender identify. 

Make your voice heard! Please feel free to use this template letter as the body of your email and send to equalitypolicy@equality.gov.ie

You can either copy the text below to an email, or download it as a word document here.

 

Dear Minister O’Gorman,

I am concerned that any amendment to our Equality legislation to include “gender identity” will result in the elimination of female-only spaces and the erosion of safeguarding.

I am opposed to the inclusion of “gender identity” as one of the protected grounds in our Equal Status Act, where it would displace or supplant the primacy of biological sex as one of the protected grounds and interfere with the provision of single sex spaces; services and sports; and opportunities for women to increase participation/representation in public life.

The current exemptions based on gender operate to address inequalities faced by women and girls: securing single-sex spaces and services, ensuring fair competition in sport, and ring-fencing opportunities by way of positive action.

Any amendment that seeks to replace biological sex with “gender identity” as a ground in the Equal Status Act could potentially lead to the elimination of these exemptions to the detriment of women and girls.

Legal opinion sought by The Countess on this matter highlights the very real risk that expansion of the gender ground will be used to support arguments that men can simply self-identify into female-only spaces, sports categories, vocational opportunities supposedly ring-fenced for women and that those arguments will succeed.

This is already happening in other countries. In California a male sex offender Darren Mereger identified as a woman to access a female-only space where he exposed himself to women and girls; in Loudoun County School, a teenager wearing a skirt entered the girls toilets and raped a teenage girl.

It must be made clear that protection from discrimination on grounds of gender identity does not entail an entitlement for trans identifying males to enter female only single-sex spaces, services, sports or opportunities.  

Furthermore, any statutory provision that did so would be out of step with what the public want, as evidenced by the Countess Red C poll which showed the public want spaces and services separated by biological sex not gender identity. Single sex provision is necessary for women and girls to participate fully in society as equals. Single sex spaces are the cornerstone of safeguarding. 

Under EU law, a trans-identified person who experiences discrimination arising from their gender reassignment, or transition, is already protected under the gender ground, therefore the addition of gender identity ground to our equality legislation is unnecessary. 

Adding “gender identity” as a ground to the Equality legislation is a well-intentioned attempt to be inclusive but risks enabling predators who will exploit weakened safeguards to access victims. As the Government has not undertaken an impact assessment on this very important legislative measure, and for all the reasons I have outlined, I cannot support it.

BACKGROUND

Under the review of the Equality Acts (Equal Status Acts 2000-2018 and the Employment Equality Acts 1998-2015) the Minister for Children, Equality, Disability Integration and Youth has proposed that ‘gender identity’ be added as a protected ground.

There are nine existing protected “grounds”: gender, marital status, family status, age disability, sexual orientation, race, religion, and membership of the Traveller community.

The “gender ground” protects against discrimination where there is less favourable treatment of one person compared to another because one is male and the other is female. Exemptions on the gender ground exist for single-sex schools, sports, and where embarrassment, or breach of privacy could happen on account of the presence of a person of another gender.

Although they have been used interchangeably within Irish law, gender and sex are not the same thing. Sex relates to the two biological sexes: male and female. Gender relates to culturally influenced, masculine and feminine societal expectations of how men and women should behave, their aptitudes and appearance.

A lack of clarity on the definition of gender and sex in law and the eleventh hour introduction of self-identification in the Gender Recognition Act 2015, has led to a position whereby a male who has not had (and may have no intention of) surgery or hormones can obtain a Gender Recognition Certificate (GRC) to change his gender here in Ireland, and legally gain access to single-sex female only spaces as if they were born female. As a result of the GRA 2015, male born individuals who have committed serious violent and sexual offences, who have not taken hormones or had surgery have been placed in Irish prison facilities for women.

The current position with the Equal Status Act 2000 (ESA) is as follows:

Section 3, ESA, defines discrimination in terms very similar, though not quite identical, to section 6 of the Employment Equality Act (EEA). Unlike the EEA, the ESA contains at s.3(1)(c) a general definition of indirect discrimination:

“where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

Section 5(1) of the ESA then prohibits discrimination in the provision of goods and services; and the subparagraphs of section 5(2) exclude the effect of that prohibition in various specific contexts.

THE EXEMPTIONS

Section 5(2) provides, so far as material for present purposes

… [S]ubsection (1) shall not apply in respect of—

(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,

(f) differences in the treatment of persons on the gender… in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,

(g) differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender…

These are outlined by the IHREC;

Gender:
The Acts allow people to be treated differently on ground of gender (male or female) in relation to:

        • Cosmetic Services, covering cosmetic, aesthetic or similar services which involve physical contact (e.g. hairdressing);
        • Privacy/Embarrassment, where embarrassment or breach of privacy could reasonably be expected to happen on account of the presence of a person of another gender.
        • Single sex schools are allowed. Primary or secondary schools may be girls or boys only.

#WeWillBeHeard