Changing the Equality Act

In this discussion piece, Mark Lilly* argues for a change to the Equality Act 2010

There is general agreement that the effect of the provisions of the Equality Act 2010, setting out as they do a specific list of ‘protected characteristics’ (race, gender, etc.), possessors of which are sheltered from discrimination, has been to accentuate social division by encouraging a culture of grievance and victimhood, and correspondingly reduce that sense of community solidarity so vital to a healthy society.

I propose a simple reformulation of the Act, the heart of which is to ban discrimination ‘on the basis of immutable characteristics.’ This immediately achieves three very significant goals. First, it entirely removes the invidious naming of protected groups whom opponents of the Act see – rightly or not – as actual recipients of special legal favour. Second, the concept itself is wholly unexceptionable, and the many people resistant to the initial version are likely to accept the new wording. The rationale is entirely different; in place of an arbitrary selection of favoured groups, everyone in the society is covered equally. Thirdly, it is self-evidently just; for as immutable characteristics are beyond the agency of individuals, no moral case can be made to allow discrimination on the basis of them.

There are two categories which, ex hypothesi, are not covered in the new wording: religion and transsexuals.

Legislation against (and for!) religious discrimination has a very long European history and it is not surprising that it was included in the Act. Like most secularists, I view this approach as outdated. As religions are, or at least contain, ideologies, they are analogous to political parties, which are not protected under the Act. Almost all religions – certainly the three monotheisms which make up the vast majority of UK believers – intervene in the controversies of the day, often to the severe detriment of other members of the society. It would be ludicrous if victims of religious hostility and harm were to be circumscribed from powerful resistance and protest.

Let us take a very recent and famous case. Katie Forbes MSP declared a few years ago that she felt entitled to vote in the Scottish parliament against equal marriage based on her Christian principles. Christians represented this as an issue of ‘freedom of religion’. This was misleading, because a much more basic principle was involved: the supposed right of someone to use a position of political power to deny equal rights to a group of people because of a religious opinion. Do we seriously want to legally ban discrimination against people who advocate imprisonment for gays (53% of British Muslims according to Trevor Phillips’ notorious ICM poll for Channel 4), or who mutilate babies’ genitals, or who constrain women’s reproductive rights (all nine of the American supreme court justices who overturned Roe v Wade are religious believers, six of them Catholic)? The answer is, No!

The trans issue is more difficult, and ideas that I offer here are more tentative. First of all, wearing my philosopher’s hat, let me clear away some rubble. Thousands of hours have been spent in the public forum debating whether trans women are ‘real women’. Now, arguments tend to be either substantive or definitional. Debates about the links between smoking and cancer are substantive: they involve the assessment of factual evidence. Debates about whether graffiti is art or whether a painting is beautiful are definitional: you are discussing how a particular word should be employed. They are rarely fruitful. In the trans case, this (definitional) question is actually harmful because it naturally ends in the conclusion that trans women should in all cases be treated as men, or women, depending on which view one espouses.

To avoid this ‘all or nothing’ problem – and all the nonsense in the media about pregnant men, etc. – much better to retain ‘trans women’ (rather than ‘men’ or ‘women’) as the category and then decide practical questions on a case-by-case basis: e.g. should trans women be allowed –

To compete in sport as women (no)
To compete in fashion show as women (yes)
To marry a man (yes)
To use women’s changing rooms whilst still possessing male genitalia (no); without genitalia (possibly yes)

The bracketed answers are of course mere suggestions. The main point is that discussion should focus on practical issues – hopefully to ensure women feel safe and trans women are able to retain their full dignity. It may be that separate legislation is required for questions concerning trans women.

Finally, an important footnote. The 2010 Act does not deal with the, admittedly difficult, issue of intersectional discrimination, where competing claims are in play. At the height of the tidal wave of repulsive and violent homophobic hip hop songs from the Caribbean community two decades ago, my friend Peter Tatchell, objecting to lyrics advocating the torture and burning of gays, was subsequently himself denounced for ‘racism’ for criticising a supposedly authentic ethnicity. Any set of rules is useless without criteria for addressing competing claims. A reformulated Equality Act should offer some clarification here.

*Mark Lilly combined an academic career in English Literature with a busy life as a civil rights’ activist. He was a member of the executive of Liberty (then NCCL) in the 80s, and wrote the official history of that organisation (1984). He has published work on Shakespeare and on fiction but his most well-known work is Gay Men’s Literature in the Twentieth Century (1993).

The views expressed here are those of the author and not of AFAF.

Image Credit: LeftistPhilip (2023) ‘Egalitarian and Equality Logo’ used under the Creative Commons CC0 1.0 Universal Public Domain Dedication.