Suella Braverman ‘misinterpreted’ equality law in ‘ideological’ attack on trans kids, barrister says
A discrimination lawyer says attorney general Suella Braverman got equality law wrong in her controversial speech attacking trans kids’ rights in schools.
On Wednesday (10 August), attorney general Suella Braverman claimed it is “lawful” for schools to deadname and misgender trans kids, to deny them access to certain toilets or to participate in some sports activities, and for single-sex schools to reject trans children.
In her speech, given before the Policy Exchange thinktank, Braverman claimed schools could be “indoctrinating children” by recognising their trans identities, and said that in her opinion it is not “age-appropriate” to teach primary school children about LGBTQ+ identities.
Barrister Robin White told PinkNews that despite the attorney general’s claims, trans children are protected by law.
“A suggestion that schools don’t have to respect their rights in terms of, for example, uniform wearing or toilet facility attendance, is completely wrong,” White said.
Robin White is the only openly trans woman in the country to work as a discrimination barrister. She transitioned in 2011, and in recent years much of her practice has been focused on discrimination cases involving trans people and the “gender critical” movement.
Based in London’s Old Square Chambers, she was the claimant’s barrister in the landmark case Taylor v Jaguar Land Rover Ltd, which established that non-binary and gender-fluid people are protected from discrimination under the Equality Act 2010. She also acted as counsel for Stonewall when it recently won its case against LGB Alliance co-founder Allison Bailey.
White was clear: “The fact that you’re a school child does not mean that the Equality Act doesn’t apply to you.”
“I’m 58,” she added. “If a 15 or 16-year-old goes to the shop, and the shop were to say, ‘we’re not going to serve you because you’re trans’, the 15 or 16-year-old is just as protected as I am.”
AG Suella Braverman delivers…a master class in how to misinterpret Equality Law. Truly dreadful stuff in her speech today. No understanding of ‘a proportionate means of achieving a legitimate aim’. It will be a busy autumn if she is still in place after the reshuffle. pic.twitter.com/5OSnQtMsJV
— Robin Moira White (she/her) (@moira_robin) August 10, 2022
The Equality Act 2010’s nine protected characteristics include the characteristic of sex and the characteristic of gender reassignment. The protected characteristic of gender reassignment is not reliant on any medical intervention, nor on acquiring a Gender Recognition Certificate (GRC).
“You are protected if you have undergone, are undergoing, or propose to undergo a process to alter your gender presentation,” White explained.
“So when you take steps to present in a different way, which can include things like using a different name or pronouns, wearing your hair differently, dressing differently, and not limited to physiological steps, those steps are enough to trigger protection under the gender reassignment provisions of the act.”
Despite this having been UK law for over a decade, in her speech, Suella Braverman asserted ignoring a trans child’s name and pronouns or refusing their request to dress different was a “lawful” thing to do.
She even suggested that by affirming trans children, teachers could be leaving themselves open to a “negligence claim for breach of their duty of care” to that child.
White countered: “A suggestion that schools don’t have to respect their rights in terms of, for example, uniform wearing or toilet facility attendance, is completely wrong.”
One thing Braverman did get right, White said, was that exceptions can be made under the Equality Act to discriminate against trans people if that discrimination is a “proportionate means to achieve a legitimate aim”.
However, she explained: “Take, for example, a 15-year-old who has lived in their affirmed gender since 12 or 13, and is accepted in their affirmed gender by their school colleagues.
“To say to that person that they should use the toilet facilities at school that are not consistent with their affirmed gender, the school would have to argue that it was a proportionate means of achieving a legitimate aim.
“They can argue that it is permitted discrimination, and it is therefore tested very carefully by the courts. What a court considering that would do is balance the effect on [the trans student] and the effect on the general school population. If the complaints about them were based on prejudice, not evidence, that argument would inevitably fail.”
White said Braverman made blanket statements about situations in which discrimination was lawful, and made generalisations about how a discrimination case would be determined.
“Indirect discrimination cases are, inevitably, highly fact-specific,” she said.
“I, as a practitioner, would never say that one could express a blanket view about indirect discrimination claims. It’s just the worst form of madness, and it is ideological.”
Thankfully, the majority of the public has far more common sense than Suella Braverman
White is hopeful most people have more common sense than the attorney general when it comes to respecting the rights of children.
Research shows that Britons are supportive of trans rights on the whole – in July, a YouGov survey showed a majority of people in Britain would be supportive of a family member who came out as trans.
“We have a very strange government at the moment that the normal rules don’t seem to apply to,” said White.
“And we are also in a very weird period where, through the process of the election for the Conservative Party leadership, there appears to be a race to the bottom in terms of respecting individual rights.
“With Britain economically in the toilet… trans people are a convenient football to kick.”
White added that for the demographic of Tory voters politicians are appealing to, “it may be more palatable to talk about such things, than to actually deal with the real issues that are facing Britain”.
Rhetoric like Suella Braverman’s is “completely unlike what happens in society”, White said.
“If we look at Pride events, if we look at the way in which businesses value, promote and look after trans people, the way in which the current Conservative government is acting is completely out of tune with the way society is.”
Suella Braverman’s message is part of a wider attack on trans rights in Britain
While Suella Braverman’s comments may not immediately impact students and teachers who have access to a wide range of guidance on LGBTQ+ inclusion, they appear to be part of a wider push to erode the rights of trans people.
Robin White has been practicing law for 27 years, and said: “I remember what the position was for gay people when I was in early in practice, when it was the presentation that you can’t have gay male primary school teachers because they’re after your children. And that has become completely unacceptable as a narrative.
“But if the voices that would like that narrative back again succeed with demonising trans people, we’re the crumbling edge of acceptance and diversity. If trans people are dropped down the nearest well, which is what some aspects of society would like to achieve, we won’t be the last – people will then move on to other rights.”
She continued: “What’s particularly uninspiring is that traditionally the attorney general has been the voice of sense and reason in government, in that they’re there to ensure that proper legal advice is received by ministers.”
“It is entirely unsurprising that we have an audience who includes the likes of Maya Forstater and Thomas Chacko,” said White.
“I don’t recall getting an invite myself. I am a leading practitioner in this area. If what they wanted was a balanced audience, then there were plenty of people with a variety of views who could have been invited.
“If what they wanted was a something equivalent to a religious rally, they created the audience to achieve that.”
PinkNews has approached Suella Braverman for comment.
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