The Equality Act 2010

Have you noticed how often people blame the Equality Act 2010 for some of the worst excesses of DEI?

I was having one of those exchanges on TwiX this morning with David Carr who seems to think that the Equality Act requires the British Army to ignore security and competence concerns by hiring and promoting those who tick diversity boxes rather than the best applicants.

He didn’t respond well to my challenge that he was wrong about this.

David Carr is by no means the only person who believes this. It seems Miriam Cates does too. According to her, the Public Sector Equality Duty (PSED) compels public bodies to:

actively pursue policies to eliminate all potential inequalities, giving rise to the kinds of ridiculous re-education programmes that frequently make the news. In seeking to subvert a British understanding of fairness, these programmes actually introduce discrimination, for example gender neutral policies that discriminate against women. 

She’s wrong about that.

I have read the Act and the PSED requires public bodies to:

•       Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act

•       Advance equality of opportunity between people who share a relevant protected characteristic and those who do not

•       Foster good relations between people who share a relevant protected characteristic and those who do not

Discrimination, harassment and victimisation are actively required to be eliminated. Not inequality. Which is entirely reasonable.

Advancing equality of opportunity is not at all the same thing as eliminat[ing] all potential inequalities and to be honest, I’m disappointed that a Conservative politician as experienced as Miriam Cates has confused equality of opportunity with equality of outcomes. Not least because the former is surely foundational for western liberal democracies, whilst the latter is foundational for Communism.

It’s likely that those who have the wrong end of the stick regarding the PSED have not read the Act, but instead have been misinformed about the PSED. That is almost certainly what has happened in workplaces, NGOs and government departments up and down the country because training is poor quality, unregulated and all too frequently it’s just plain wrong.

There is cultural interpretation dimension to this as well.

Some, including Miriam Cates, seem to think that the protected characteristics create the “priest castes” of protected individuals who are seemingly free to abuse and harass those of us who are not explicitly protected.

But that is to put the cart before the horse.

With the exception of gender reassignment, the protected characteristics didn’t come out of nowhere, they came from the myriad of anti-discrimination legislation that the Equality Act replaced. They are the most common axes of discrimination pretty much everywhere.

Women who couldn’t get a credit card without their husband’s approval as late as the 1970’s were discriminated against on the basis of our sex. Racism too often prevented people from getting work or lodgings. Anti-Catholic sentiment persists in places in the UK even today – it was only in 2013 that the Succession to the Crown Act was amended to permit the monarch to marry a Roman Catholic.

To suggest that the protected characteristics – and in particular sex and race – created the Critical Social Justice problems we are grappling with simply doesn’t stand up to scrutiny. The same problems are seen in all the western liberal democracies, but most agree that they emanated from the US, not the UK after 2010.

The protected characteristic of gender reassignment is a little different being an entirely synthetic quality that in 2010 almost nobody understood. It’s probably fair to say that the EA 2010 went some way to instantiating it in law and throwing a protective cloak around a group of people who had no need of it.   

There again, the Act doesn’t require employers or public bodies to elevate or advance the interests of those who hold any protected characteristic, it just prevents them being treated worse because they hold that protected characteristic.

As with the PSED, organisations are being trained up to misunderstand the protection provided by the nine protected characteristics. The training providers are able to mislead because training isn’t regulated or quality controlled, and it’s employers – not the trainers – who are open to prosecution every time they get it wrong.

As a result of employers seeking to elevate those claiming “gender reassignment” we’ve seen a host of court cases brought by women who have been harassed, victimised and discriminated against because they know that sex is real, and those women have been successful in the vast majority of cases.

The Equality Act 2010 – when examined in a court of law – simply does not mandate the behaviours claimed by those who misapply it. But it’s not sustainable for each and every badly treated employee to take their poorly advised organisation to court. It wastes time and money, and it’s simply not available to most of us.

We don’t need to repeal or amend the Act*. Instead, we need accreditation for training so that organisations don’t find themselves implementing what lobby groups like Stonewall or GIRES want the law to be. And in the meantime, the Government and the Civil Service must be required to review their workplace policies and publish the findings.

We need the Government to provide some leadership in an area that is making people’s lives a misery.

* Except to get rid of gender reassignment which is covered by religion or belief.