Anti Transgender Discrimination

The distinction between direct and indirect discrimination

The distinction between direct and indirect discrimination has been addressed in a number of cases. An example is in R (on the application of E) v Governing Body of JFS [2009] where Lady Hale said:

‘The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality, or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins. … Direct and indirect discrimination are mutually exclusive. You cannot have both at once’

So what us direct discrimination?

Direct discrimination is what comes to mind when we think of discrimination. it’s definition is set out in section 13 of the Equality Act, as when a person (A) treats another person (B) less favourably than he treats or would treat someone else (C), because of a protected characteristic (see the equality act protected characteristics). So for everyone who loves a legal test- thats a two stage test: was B treated less favourably than C, then, was it due to a protected characteristic.

So when is someone treated less favourably?

If scamazon warehouses ltd treats all of its employees badly, said employees are being treated equally- albeit equally badly. So can they bring a discrimination action? No, they are being treated unfavourably but they are not being treated less favourably (it should be noted socioeconomic factors are not protected- thanks new labour). Enter the comparator. To prove unfavourable treatment there needs to be a real or hypothetical person in the same circumstances, without the protected characteristic being treated more favourably. So for our purposes if scamazon warehouse employed 12 cis men and 1 trans man who was treated badly while the other men weren't, this would be cause for discrimination.

So that answers everything?

Nope, we have covered ‘less’ but what about ‘favourable’. If Tescon employs 10 men and 10 women and sets a dress code- skirts for women trousers for men, is this less favourable? Well yes, but in law, though this is different treatment it is not less favourable to either sex but based on conventional gendered clothes.

So what about indirect discrimination

Indirect discrimination originates in the usa laws concept of disparate impact, which arose in the US decision of Griggs v Duke Power Co (1971). The original SDA only protected against direct discrimination this was until the then Home Secretary, Roy Jenkins, visited the USA, and gained an understanding of the importance of prohibiting indirect discrimination.

The definition of indirect discrimination as set out in section 19 of the Equality Act harmonises the different versions that existed in the previous legislation

Associative discrimination

Associative discrimination is when a person brings an action under the ea 2010 if they have been discriminated against because of someone they are associated with.

Example: Wendy, a cis woman is fired from her job at snake shakers western bar as her boss, majorie finds out her wife is a trans woman and fears she can no longer trust wendy. This is associative gender reassignment discrimination when they do not have the protected characteristic themselves

Perceptive discrimination

Perceptive discrimination is discrimination against an individual because others think (wrongly) that they possess a particular protected characteristic . For example:

Marta is an olympic boxer with the build of an olympic boxer. KJ rocking, sends her 500 tweets accusing her of being an ugly male woman beater. This would be perceptive discrimination on the ground of gender reassignment.