International Human Rights Day (IHRD) is observed every year on 10 December – the day the United Nations General Assembly adopted, in 1948, the Universal Declaration of Human Rights (UDHR). The UDHR is a milestone document, which proclaims the inalienable rights that everyone is entitled to as a human being – regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.
To mark International Human Rights Day (IHRD) 2021, several staff members across UoR have written blog pieces about protected characteristics and their importance.
Professor Rosemary Auchmuty, Professor, School of Law
When the Equality Act was passed in 2010, it swept up all existing non-discrimination legislation into one statute. Of the categories of discrimination it encompassed, sex was the first to be recognised. Until just over a century ago, women – members of the female sex – were barred from a whole range of jobs and public offices, excluded from educational and social opportunities, and could not exercise the vote or stand for Parliament. In 1918, thanks to long feminist campaigns, some women got the vote, and could become MPs; in 1919, thanks to more long feminist campaigns, the Sex Disqualification (Removal) Act was passed, opening many professions (including law) to women for the first time. But the Act said nothing about treating them the same way as men were treated: so women continued to be paid less than men and were routinely dismissed (or passed over for appointment in the first place) because they were or might become pregnant.
Twentieth-century feminists built on the legacy of nineteenth-century feminism by campaigning not only for equal educational and job opportunities but for legal measures that took account of the actual physical differences between men and women. For example, women’s reproductive role meant that, in order to enter the workplace, they needed access to contraception and abortion as well as childcare arrangements.
Only in 1975 did the Sex Discrimination Act make it illegal to discriminate against women in education, employment, and the provision of services. These provisions were subsumed in the Equality Act 2010 in recognition of the fact that sexist discrimination was still ongoing, and that it would take many more years for women to catch up with men because of their long history of exclusion and discrimination. (These are similar arguments to the justification for ‘race’ to be a protected characteristic.) Not only this, but earlier victories tend to be lost in bad times or through backlash: if the current pandemic has shown us anything, it is that women have suffered worse in terms of pay and job security than men and that they still carry the heaviest burden of care and domestic work. Differential treatment is still often justified precisely on the basis that only members of the female sex get pregnant and give birth. So this is one reason why we need ‘sex’ to be a protected characteristic in law.
A second reason to protect sex in law is the recognition that women suffer disproportionately from sexual abuse, violence, and exploitation, and that these are acted out by male bodies on female bodies. (Here, too, we see similarities with racist abuse and violence, also protected by the ‘race’ category in the Equality Act.) Every woman on this university campus is alert to the possibility of sexual danger and probably all have experienced it. Having a ‘sex’ category permits the provision of female-only spaces for women’s safety and protection and also to meet the needs of religions (religion is another protected characteristic in law) that require the segregation of male and female bodies in certain contexts like toilets or changing rooms.
There have been moves to replace the category of ‘sex’ in the Equality Act with a new category, ‘gender identity’. But gender identity is quite different, since it does not necessarily map on to biological sex. It does not recognise women’s long history of exclusion and discrimination on biological grounds or the specific roles of female bodies in reproduction and as objects of sexual abuse. So we need to keep ‘sex’ in the Equality Act and, with it, the recognition that being a woman is more than simply an idea: it is a physical reality, with social consequences; and for both those reasons it needs protection.