The top of the April 2015 issue of DIVA magazine, showing the red title, the very tops of 2 heads and the text 'Melissa Etheridge 'Before I came out, nobody was out"

Not This Nor That: DIVA Magazine, The Equality Act 2010 and Misrepresentation

DIVA Magazine April 2015Hello to new readers who have found this site through the article ‘Not This Nor That’ on page 43 of this month’s DIVA magazine (April 2015). This was an important article drawing attention to the lack of legal recognition and protection for nonbinary people in the United Kingdom, and highlighting the important work of activists working to correct this. I thank Nayla Ziadeh for writing it and DIVA for its publication.

Unfortunately I feel that I have been misrepresented in that article, and I also believe that it gives an incomplete and misleading impression of the current legal position of nonbinary people in the United Kingdom.

Please read the corrections below. While you’re here, I hope you find this site interesting and useful. If you’re after facts then I recommend the articles about the number of people who are nonbinary in the UK or the history of the gender-inclusive title Mx. If you’re looking for information about androgyny you may enjoy my video and article about speech and singing. But first…

Not This – The personal

Please disregard the paragraph in DIVA’s article that gives details of my first social and medical transition in 1999. Not only would I have preferred that these details were not stated, but the paragraph also contains a number of factual inaccuracies about me. I also worry that it implies that I fall into the problematic tropes of ‘trans regret’.

I do not regret any medical treatments that I have undergone to treat my gender dysphoria and I believe that I would have made the same medical choices at the beginning of my transition even if there had been full acceptance of nonbinary gender from gender specialists in the late 1990s. I had very real dysphoria from my body and the treatment I have received has been effective in resolving it.

What I do regret is that at that time, everywhere I looked, the presence of dysphoria and the need for medical treatment was presented as a solely binary experience. As such, I took my need for this treatment as evidence that my strong feeling that I was meant to be androgynous wasn’t correct and wasn’t possible, and instead tried to fit myself into a binary identity and social transition. If my transition had happened today, I believe that I would have transitioned directly to the androgynous presentation and nonbinary identity I have lived in since 2001, and not spent 2 and a half years trying to work out my gender and social role in a situation where some of my dysphoria was improved but much was worsened. I regret the delay in resolving my social dysphoria, I do not regret transitioning.

That historical lack of information about other transition paths was the reason I began anonymous, private or in person genderqueer / nonbinary activism in 2001 and why I ultimately launched this site under my full name in 2011, when there was almost as little information available as there had been a decade before. I quickly realised that I didn’t have the time or energy to create resources myself, and that there were issues of under-representation for more than just those seeking androgyny. So instead I focused on helping other organisations to become inclusive. I also created a wiki to help anyone in the nonbinary community contribute to resources. Thankfully the situation has moved on immeasurably in the last 4 years with many mainstream transgender organisations being inclusive of nonbinary experiences and less likely to assume the genders of the people who may be using their resources.

I re-entered the gender clinic system in 2010, that time confidently nonbinary and overtly androgynous, and had my diagnosis of Gender Dysphoria reaffirmed (this was a welcome improvement from the previous label of ‘Gender Identity Disorder’). The current WPATH Standards Of Care should allow for nonbinary individuals to be treated by gender clinics without presenting a binary or normative gender role, although there is a great deal of inconsistency in how much UK clinics are adjusting to (or resisting) this change.

Nor That – The political

Please note: I am not a lawyer, please do not take this as legal advice, this is simply my best understanding as an interested citizen in need of protection from discrimination. If you need to make use of this legislation please contact a qualified legal advisor.

I believe that the information presented in the DIVA article misrepresents the situation created by the Equality Act 2010 by stating that it is simply ambiguous whether nonbinary people are protected from discrimination, and that it’s ambiguous whether it refers to social, hormonal or surgical transition.

This legislation is explicit that no medical treatment or involvement of doctors is required in order to be covered by the “gender reassignment” protected characteristic. One only has to be “proposing” to undergo “part of” a process of reassignment to be protected. Partial gender reassignment and social gender reassignment are protected. This is elaborated on by the Government Equalities Office’s “quick start guide” to the Equality Act 2010 which says that compared to the previous legislation:

The range of transsexual people who are protected has been extended slightly. To qualify for protection, a transsexual person will no longer have to show that they are under medical supervision. This means that a person who has changed their gender without seeing a doctor will now be protected, though under previous discrimination law they were not.

What is unclear is whether it’s even possible within the terms of the Act for a nonbinary person to be considered to be “undergoing part of gender reassignment”. The legislation defines reassignment as relating to “a person’s sex” and also defines this as interchangeable with “a transsexual person”. Elsewhere, the Sex protected characteristic is specifically defined as “a man or a woman”. This results in a restrictive definition that leaves little space for the existence of nonbinary people.

It is perfectly possible for a nonbinary person in this country to undergo medical gender reassignment, including hormonal and surgical treatments, and to gain a medical diagnosis of Gender Reassignment from a gender specialist. I am a clear example of this and I know of many others. If one is discriminated against for having undergone any of these aspects of gender reassignment (or being perceived to have done any of these) then one should be protected by the Equality Act 2010 as it was intended to protect gender reassignment and these should clearly be examples of gender reassignment.

However, only a minority of nonbinary people will meet those criteria, especially as many gender specialists are still excluding people who are unable to represent themselves as having a binary gender or presenting a binary gender role. In effect, nonbinary people are still required to pass medical gatekeeping in order to be clearly protected as undergoing reassignment, when binary trans people have been freed of this restriction.

The Act’s restriction on the definition of gender reassignment to terms of “men and women” also undermines the protection of even those nonbinary people who have undergone medical transition. If a case were taken to a court or employment tribunal, evidence that the person could be excluded from the Act’s definition of gender reassignment could potentially be used to dismiss the claim. One would effectively have to argue that one had been ‘perceived to be’ a member of the protected class, rather than actually being protected directly. (And the same applies to sex discrimination.)

Worse still, if the discrimination was due to social transition rather than medical, or if the nonbinary person affected was one of the many who don’t relate to the concept of transition or reassignment, there would be little to no claim of protection under the Act as it currently stands. This is compounded by the Government Equalities Office’s “quick start guide” to the Equality Act 2010 saying:

“A wide range of people are included in the terms ‘trans’ or ‘transgender’, such as people who crossdress only on an occasional basis and other people who may identify as neither men nor women but somewhere in between. Only transsexual people are explicitly protected under the Act. However, if a person who cross-dresses, for example, is discriminated against because they are wrongly thought to be transsexual, they will be protected under the Act.”

I stress that the wording about ‘neither men nor women’ is nowhere to be found in the Act itself, and that I believe that this document was written on the erroneous assumption that “transsexual people” cannot also be “neither men nor women”. But this is an extremely problematic piece of official guidance for any nonbinary person who is experiencing discrimination due to gender reassignment, or due to being nonbinary.

As far as I’m aware, the degree to which the Equality Act 2010 protects nonbinary people who have demonstrably undergone a great part of the process of “gender reassignment” remains untested in a court or tribunal. I believe that some of us would have strong cases (those who changed legal sex before or along with a nonbinary social transition, for example), but cases will vary depending on the context and the specific type of discrimination. Others would have no case at all. Either way, the wording of the Act should be extremely worrying for anyone who does not feel themself to be (entirely or solely) “a man or a woman” and has stated this publicly.

There is a clear need for the Equality Act to be reformed to make it explicitly inclusive of all nonbinary people. I would argue for such reforms to protect both gender identity and expression and the remove the requirement for “reassignment”, as this is not a concept that represents all nonbinary people, or all transgender people.

(There are other serious problems with the Equality Act 2010 that were raised during my interview but not touched on at all in the article, presumably due to lack of space or direct relevance to nonbinary people.)

Misrepresentation

If you’re a nonbinary person, or any trans person, and you’re considering a request to be featured in the media, please see Trans Media Watch’s help and advice before you make your decision.

To journalists – A request

Please continue to cover nonbinary gender and other marginalised groups and experiences within the wider transgender community. Please also continue to highlight the lack of legal recognition and protection we face. This is an important issue and I thank Nayla and DIVA for bringing this to a wider audience.

When I am able, I will do my best to help you with your articles and put you in contact with people better suited than I am. I also fully understand the practicalities of journalism and the reality that sometimes information has to be heavily edited for length, clarity or relevance.

But please note that I will no longer accept requests to interview for or contribute to articles unless, in advance of publication, I am able to read, correct and/or veto the parts relating to my personal history or purporting to reflect my opinions. I think that this is a reasonable compromise given the potential distress caused by this sensitive topic.

To everyone – An apology

This site is overdue a redesign to reflect that it never became the planned resource site about androgyny for anyone who experienced or wished to experience this state, for any reason. It instead very quickly became a site about nonbinary gender, and as such its name became unintentionally problematic. This is especially clear when the name of the site is presented, without further elaboration, in a magazine article about nonbinary gender.

To be absolutely clear: androgyny and nonbinary gender should not be conflated. Many people who are not nonbinary seek to achieve an ambiguous gender appearance or are living with such an appearance, for a number of different reasons. Presentation is not necessarily identity. And, most importantly, nonbinary people can present in any way that is authentic to them. There should be no expectation of androgyny from nonbinary people or privileging of those who do present this way. I regret having implied this by association. Androgyny was something that I personally needed to resolve my dysphoria, but there are as many ways to be nonbinary as there are nonbinary people, none more valid than any other. Nonbinary people need not experience dysphoria and need not transition. For those of us who relate to the concept of transition, it can mean myriad different things, each just as valid. There is no one way to transition.

I apologise for passively allowing this site to become part of the problem, and for not fixing it sooner. I’m currently in the middle of a stressful period in my life, but I hope to have this site redesigned by the end of next month. Thank you for your patience, I will try to do better.

Please seek out other nonbinary voices, I alone cannot represent such a diverse set of communities, despite my best efforts.

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