Gender Recognition Act - Feisty Women’s Position
Updated: Oct 1, 2019
After a lifetime of sex discrimination, and now age discrimination, Feisty Women wants the voice of older women to be heard in national debates about discrimination and inequality.
The Scottish Government is proposing reforms to the Gender Recognition Act (GRA). These reforms will make it easier for transgender people to receive legal recognition of their acquired gender. Many women are challenging these changes because of concerns about the erosion of women’s sex based rights under equalities legislation. Feisty Women agrees these concerns are valid but we believe the cause of the threat is not the Gender Recognition Act. In our opinion, this is the wrong target. Feisty Women supports reforms to the GRA which will simply make it easier for a marginalised community to live their lives without barriers. The threat to women’s hard-won rights lies elsewhere.
For two years, Feisty Women has been trying to find a way through an impenetrable legal system to make a complaint about indirect discrimination in relation to the 2011 Pension Reform Act. Our experience has brought to light two important issues that we believe prohibit fair treatment for women.
The first is an equalities culture where the prevailing assumption is that gender is the unifying principle for women rather than the material reality of sex. The second is equalities legislation that is not fit for purpose.
Modern day theories about the causes of inequality for women skirt around the most important cause of inequality for women. Sex, though it is a protected characteristic under equalities legislation, almost seems to have become a dirty word.
It is quite straightforward. Women are not able to fulfil their true potential in the workplace or society because they bear children. Pregnancy, childbirth and motherhood are not incidental, niche activities. They are all consuming and all demanding.
A wealth of data shows that motherhood has a negative impact on women’s economic well-being and health. Like their mothers, young women still shoulder 70% of unpaid domestic work. The day a woman finds she is pregnant is the day she will face a pay gap of 33% for the next 12 years.
The intensity of women’s paid and unpaid labour is what causes lost opportunities, not sexist recruitment practices or gender stereotypes. Many women take poorly paid, part-time jobs below their level of ability to be available for their families.
The system of ideas used by policy makers and influencers to explain inequality for women is divorced from the reality of our lives. Theories appear to be ideologically driven from the top-down and are fraught with contradictions.
Central to modern-day ideology is a concept called intersectionality. This was coined in 1989 by a black feminist called Kimberle Crenshaw. Intersectionality is a useful concept. At its simplest, it argues that women across their lives will experience multiple oppressions on the grounds of age, race, faith, disability and sexual orientation. This makes sense.
Today, however, ideas about intersectionality have been overlaid with complicated ideas about identity.
Once, the thinking was that equality for everyone comes from rejecting labels and gender stereotypes. The trend nowadays, however, is for individuals to define themselves rigidly through a complicated labelling process based on an acceptance of gender stereotypes. As every week goes by, new classifications emerge. According to a recent BBC educational video for primary school children, there are now believed to be over 100 recognised gender classifications.
The prevailing world view does mean that equalities policy makers and influencers find it difficult to articulate a clear narrative about sex discrimination or to whole-heartedly validate women’s lives. Language slips evasively between the word ‘woman’ and concepts such as ‘gender identity’ or ‘gender in the non-binary’. It’s not clear if they mean women can assume various gender identities or if woman in itself is an identity that anyone can assume, alongside the other 99.
Then, the term ‘sex discrimination’ is conflated with the term ‘gender discrimination’. It seems everyone has their own personal definition of the meaning of ‘gender’. Definitions slide on a scale where biological sex is at one end and socially constructed roles are at the other. Sometimes gender is used to mean both. There is no shared understanding of what it actually means.
This nebulous landscape of confused definitions and multiple, splintered identity groups may appear to be rational to those within the system, inside looking-out. It may seem on the surface that a tenuous fit has been found between potentially incompatible elements. The problem is that these theories of discrimination are de-contextualised. They just don’t reflect the reality of women’s lives, outside looking- in.
Fifties-born women have paid the price for this new orthodoxy. In monetary terms, we have lost £45,000 each. Policy makers and legislators across political parties exploited gender-based theories of discrimination when they raised state pension age for women. Decisions were based on the assumption there are no differences in the life experience and economic participation of women and men as they approach retirement. Despite a wealth of data showing older women are in worse health and are significantly poorer than men the same age, this was considered to be irrelevant. Equality Impact Assessments were sex blind.
Sex, however, is still a protected characteristic under equalities legislation. Legislators and policy makers maintain that following reforms to the GRA, women will still have the protections of equalities legislation. The problem is that it is almost impossible to enforce equalities legislation. It is not fit for purpose.
If an individual woman wants to make a complaint about sex discrimination or to apply an exemption on the grounds of sex, then the entire burden, risk and cost of legal action falls on her shoulders. Even if a woman is wealthy, resilient and courageous, then as Feisty Women has discovered, there is not necessarily a route through the legal system.
Feisty Women contends that equalities legislation is just as much in need of reform as the GRA. The two should go hand in hand.
Feisty Women intends addressing these important issues through our test legal case and through evidence-based arguments. In a dynamic political economy, women have the power to organise and to campaign on an equal footing with any other interest groups. If we are ever to solve the problem of inequality for women, then we need to challenge current orthodoxies and received wisdoms. Challenge is not a hostile act but is essential to a healthy democracy and a fair distribution of power.
1. Feisty Women supports reforms to the GRA which will simply make it easier for a marginalised community to live their lives without barriers.
2. The threat to women’s hard-won rights lies elsewhere. Our experience has brought to light two important issues that we believe prohibit fair treatment for women; the first is an equalities culture where the prevailing assumption is that gender is the unifying principle for women rather than the material reality of sex; the second is equalities legislation that is not fit for purpose.
3. Feisty Women contends that equalities legislation is just as much in need of reform as the GRA. The two should go hand in hand.
4. Feisty Women will respond to the Scottish Government’s consultation on the draft Gender Recognition (Scotland) Bill when it is published later this year (2019).
5. We believe there needs to be new theories of discrimination which explain the realities of womens’ lives and we want to help to explore these.
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