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Analysis of the December 2023 Guidance on the Public Sector Equality Duty

The new Public Sector Equality Guidance ultimately changes nothing, though it may lead some public bodies to act unlawfully.

This is a useful analysis for those concerned about the new Guidance on the Public Sector Equality Duty, out this week. To better explain the impact of today’s PSED guidance, we are pleased to re-publish the following piece from Clare Flourish’s site.

There were two guidance documents in 2011: the PSED What do I need to know? Quick start guide, currently still available on the British government website, and the Specific Duties to support the Equality Duty What do I need to know? Quick start guide, on internet archives. Now there is updated guidance, issued 18 December. Should trans people care?

Kemi does not specifically say here that gender critical believers must be protected, as she said to Ofsted, or transition is a danger to children, as she said in Parliament. The new guidance even refers to “women-only services” rather than “single-sex services”, and I argue that clearly includes trans women. But the new guidance says that “gender identity” is not a protected characteristic, and considering gender identity will not help bodies comply with the PSED. Elsewhere it says that bodies “should not use concepts such as gender or gender identity, which are not encoded in the Act”.

The Public Sector Equality Duty (PSED) gives some protection to trans people, as well as other protected characteristics. That the government should revise its guidance is suspicious.

This is arguable, but misleading. People are protected if they have decided to change attributes of sex. If a trans woman, pre-transition, has adopted a female name she uses when expressing herself female, that name is an “other attribute of sex”. So, if someone’s gender identity is known, they are almost certainly protected, and some who have never told a soul they are trans are protected too.

Use of the term “gender identity”, for example by Stonewall’s Diversity Champions scheme, helps people understand, and makes the group of people protected clearer. Kemi wants to limit our protection as far as possible, and pretend the wording of the Act imposes greater limits on who is protected than it really does.

That part of the guidance muddies the waters, but does not take away rights. We need to explain more clearly what the protected characteristic of gender reassignment is. However, the guide has been completely rewritten, and translated into Tory. Its new title might be: “The Public Sector Equality Duty. Should you care? Possibly not.”

For example, the old PSED Guide gave examples of the duty to “advance equality of opportunity between people who share a protected characteristic (PC) and people who do not”. It gives examples on p4: an authority should consider the need to remove or minimise disadvantages caused by PCs, meet the needs of people with PCs, and encourage people with PCs to participate in public life.

The new guidance says authorities can “disadvantage some people”, because public authorities should not “gold plate” their compliance at too great expense. In other words, don’t comply if it would cost too much.

The old guidance had no “Myths”, but the new has eight, often minimising the duty. Myth 6 is “I must publish an equality impact assessment”, but the new guidance says publishing such a document would have a “chilling effect” on decision making. The Daily Mail mocks such Assessments, but they still advance equality, so Kemi does not like them.

It says the duty to take positive action is a myth. I disagree. The PSED is a duty to eliminate discrimination, advance equality of opportunity, and foster good relations. A public body “must… have due regard to” these “needs”. I suppose after due regard to the need, a body could still decide to take no action, but that’s a stretch.

The act permits positive action to reduce disadvantage. Coupled with a general duty to “advance equality of opportunity”, I would say if a public body saw there was disadvantage there was a duty to take positive action if possible. But the new guidance says “The duty is not a positive action programme and the use of positive action is voluntary”. Bodies must consider “the impact that the proposed action may have on other people”, including those with more access and more privilege.

There are some positives. There are “Specific Duties” in the Specific Duties Regulations. Bodies listed must set themselves specific, measurable equality objectives and publish relevant information demonstrating that they are complying with the PSED. On the specific duties, the new guidance talks of “ambitious, customer-facing goals”, and says bodies could consider other bodies’ goals for tips. The EHRC produces an “Equality and Human Rights Monitor” which may suggest useful goals. I applaud that.

The new guidance will be used when public bodies consider what they have to do. Overall, it encourages them to do less than the previous guidance did. But since 2010 the Tories have cut the funding of public bodies, which means they must do less anyway.

Posted on 19th December, 2023 by Clare Flourish

The new guidance ultimately changes nothing, though it may lead some public bodies to act unlawfully.

In addition, our legal friend, Robin Moira White comments:

‘This guidance is simply wrong when it comes to the status of gender identity. This was very specifically made clear  by the Solicitor-General, Vera Baird, at the Committee Stage of the Equality Act in June 2009, when she clarified that this was included in the definition of gender reassignment (a protected characteristic). She said:

“…it must be made clear that the term “gender reassignment” is about a personal move away from one’s birth sex into a state of one’s choice, so that one is no longer protected by sex and is in a different category. That is what the provision is about. It makes it clear, by deliberately leaving out the medicality, that we are talking about a personal process, which may be proposed but never gone through. It may be considered, in process, or it may have happened. Its nature may be a medical one. Its nature may be in choosing to dress in a different way.

“The whole of that range is satisfactorily covered.”

Further, while this does not impact the meat of what is being said, it is interesting to note that if one examines the text of the Guidance closely, there is a double-space before the word “concept”. While we cannot be sure, this looks very much like a late addition to the text made with the specific intention of downgrading the status of gender identity.”