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Getting the Equality Act wrong

Aleardo Zanghellini

Aleardo Zanghellini is a Professor of Law and Social Theory at Reading University. He recently published an article in the Sage Open Journal on Philosophical Problems With the Gender-Critical Feminist Argument Against Trans Inclusion.

He does not define what he means by “trans inclusion”. But over the course of the article it becomes clear he does not mean general inclusion in employment, housing, healthcare, or in public life. Specifically he means inclusion of people who identify as trans in single sex services provided for members of the opposite sex: ““[t]oilets, changing rooms, girls’ youth organisations, hostels, and prisons” and so on.

The article is largely an extended diatribe targeting the public philosophy of Professor Kathleen Stock. Zanghelli also criticises ‘gender critical’ thinkers in general for publishing primarily on sites such as The Conversation and Medium. These platforms he says “offer us both the opportunity and the temptation to cut (academic) corners in becoming “influencers,” unlike traditional peer review processes, which are designed to make influence and recognition a by-product of, and contingent on, genuine communicative action.”

What is a law professor doing writing an article on philosophy? This kind of sideways move can also be a short cut to getting a peer reviewed article, where the content wouldn’t stand up to peer review in your own discipline.

Luckily someone else has done a sterling job of picking apart the specious philosophical arguments: the hasty conclusions, misplaced burden of proof, faulty comparison, double standards, and ad hominem arguments.

I just want to highlight one thing. Professor Zanghellini gets the central point about the law wrong.

Zanghelli says:

” trans people already have a right to access gender-segregated spaces congruent with their gender identity, regardless of their gender presentation, and regardless of whether or not they are in possession of a gender recognition certificate.”

Aleardo Zanghellini

Just to be clear what Zanghellini is claiming here – whatever someone looks like, and regardless of whether they have had any diagnosis, treatment or surgery; if they say their gender identity is aligned with the opposite sex they have the right to access single sex spaces – like toilets, showers, changing rooms and dormitories shared with members of the opposite sex.

He says this the the combined effect of sections 7 and 29 of the Equality Act 2010.

Section 7 is the part of the Equality Act which defines the protected characteristic “gender reassignment”:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

Equality Act 2010, Section 7

The definition of “gender reassignment” in the Act is necessarily broad (because a person shouldn’t lose their job because they intend to transition etc..)

Section 29 is the part of the Act about discrimination by service providers. It basically says that it is unlawful to discriminate against or harass a person because of a protected characteristic.

Zanghellini says these two sections combine to mean that male people with the protected characteristic ‘gender reassignment’ have the right to use services for women.

This is nonsense. Section 29 means service providers should not generally exclude people from services because of factors such as age, race, disability, sex or gender reassignment.

Single sex services are a specific legal exceptions to section 29, where service providers are allowed to discriminate based on sex . Oddly enough Zanghelli does not reference the parts of the legislation which allow for single sex service (the main place is Schedule 3 paragraphs 26 and 27 ).

Section 29 also combines with other definitions such as age (S.5), disability (S.6) and race (S.9). None of this means that men with these protected characteristics have the right to access single or seperate sex spaces for women as provided for by Sch 3 p 26 & 27 (as it would according to Zanghellini’s logic)

Where does the law professor get the idea that the Equality Act gives men the right to self-identify into spaces where women and girls are undressing?

He only gives one reference in his paper to support the legal part of the analysis – that is to an article in The Conversation by Professor Alex Sharpe.

Sharpe also gets an acknowledgment for reviewing Zanghellini’s article, and gave it the thumbs up on Twitter.

Perhaps Zanghellini should take his own advice on quality and robustness in academic publishing and get out of his social media bubble?

Here are two papers I recommend that are worth reading:

Komorowski, J. 2020. Sex and the Equality Act, Journal of the Law Society of Scotland, Volume 65, Issue 1.

Murray, K and Blackburn, LH. 2019. Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland, Scottish Affairs, Volume 28, Issue 3.

And one more, Whitfield, L. 2016. How Legislation Protects Women Only Spaces and Services: an overview.