Thought for the year: From a binary to a non-binary world – social progress, but legal challenge?

03 / 01 / 2017

Two very important issues that will continue to play out during 2017 and beyond are; the “workers” rights debate and how to make transgender people feel welcome.

Both issues, in their different ways, highlight the fact that we no longer (if we ever did) function in a binary world; no longer is it simply a choice between being employed or being self-employed; rather, working the fissures between these two exemplars are the various categories of “worker” and what rights they should or should not have.

Similarly, following the, then, ground breaking enactment of the Gender Recognition Act 2004, in force in April 2005, the law recognises the fact that gender is also no longer binary; individuals are not either male or female, rather they can be born genetically male, but identify as female and vice versa, or identify as being neither male nor female.  Although the current law recognises this non-binary fact, the 2004 Act is now (well) past its sell-by date and a lot more needs to be done in order that society generally recognises it and becomes supportive of transgender people.

A key part of many people’s lives (we have the highest number of people in work for more than a decade) is the workplace.  What goes on at work and how the workplace is regulated has an effect on society at large – the law and regulation that governs how we conduct ourselves at work has an impact on how we may behave and think about things when we are not doing our jobs.

Workers

The cases that have been taken on behalf of certain workers in retail and the gig economy, highlight possible inequalities/unfairness that can arise when businesses try to take advantage by operating business models that potentially deliver significant profit for the company and its shareholders, but at the “expense” of those working in the business.

Retail

In the retail sector, we have had examples of the improper use of zero hours contracts, when combined with an obligation to work exclusively for the retailer offering the contract.  If a zero hours contract is to be used, then there should be no obligation on the employee/worker to work only for the business offering the zero hours contract.  Rather, the worker should be able to work for others who may pay a better hourly rate.

The gig economy

In the gig economy, in the case of Uber (see website article dated November 2016), the court had no trouble in making the key findings that: Uber is not a technology company that allows drivers to use its IT platform, rather it is a taxi business and also that the time spent by drivers waiting for fares, is working time so that, for the purposes of calculating whether or not the drivers earn the London minimum wage for all the hours that they work, the calculation has to include the hours during which they are available to carry passengers, not just the time spent in actually chauffeuring the passenger.  Uber could have operated a business model that licenced drivers and passengers to use their tech platform so as to put the driver in direct touch with the passenger; however, for control and monetary reasons, they did not do so.

Gender

The 2004 Act was ground breaking, but as the Minister for Women and Equalities recognised in her evidence before the House of Commons Women and Equalities Committee on Transgender Equality “The Act is only five years old and… the world moves on very swiftly”.  Against the background of very worrying statistics in relation to attempted suicides amongst the transgender community (30% of adults have attempted suicide and 50% of those under 18) changes to the law are clearly required.

General changes could be to:

  • stop treating/referring to transgender people in medical terms.  “Gender dysphoria” is a mental health term that is inappropriate; so is referring to transgender issues in terms that pathologise it – this is clearly contrary to an individual’s dignity;
  • strengthen the hate crime legislation to protect transgender people from transphobia;
  • change the terminology to reflect what the trans community want, namely from “acquired gender” to “affirmed gender”;
  • distinguish clearly and respect the differences between intersex people, transgender and transsexual people;
  • allow transgender people to self-certify for the purposes of obtaining a “Gender Recognition Certificate” and thereby a new birth certificate which identifies the individual’s gender as that of their affirmed gender, rather than their gender at birth;
  • make it clear that requiring an individual to disclose their Gender Recognition Certificate is unlawful and use the powers that exit to punish those that break the law; all that should be needed (with very few exceptions eg: national security/crime) is an individual’s birth certificate; and
  • lower the age at which an individual can self-certify from 18 to 16.

Gender and employment law

In terms of employment law changes, we can expect changes to the Equality Act because its current language in relation to protected characteristics (s7) of “gender reassignment” and “transsexual” is now  outdated and misleading.  Furthermore, the current definition of the protected characteristic fails to protect the large number of transgender people who do not necessarily wish to go through with a full gender reassignment operation; this group is only (arguably) protected under the law, as currently drafted, from discrimination by reason of perception. Accordingly, it seems highly likely that the Equality Act will be amended so that the protected characteristic becomes “gender identity”.  This would have the benefit of protecting an individual from the wider trans community from being discriminated against because of who they are and not only because they are perceived to be transsexual. For example, if an individual has come out as non-binary, they are perceived as non-binary, not as transsexual and should be protected as such.

The future

The case of Uber may confirm that, where technology goes, the law has to (struggle) to catch up; in the case of the transgender community, where society is arguably going, the law has to be a  “sign post” not a “weather vane”. In both situations the social science of the law will be challenged, but the challenges must be embraced with gusto.

Bring it on – a happy, prosperous and thoughtful New Year.

For further information please contact Richard Isham at risham@wedlakebell.com.