‘Reasonableness’ and the GRA — a clash of rights

As someone heavily involved in disability activism, I’m naturally inclined to champion the rights of marginalised groups.
Most of the time, finding common ground builds solidarity. Often you find aims are aligned, even if the reasons for those aims are different, because being part of a marginalised minority gives us a baseline of understanding from which to work. Sometimes, though, two movements will reach an impasse. I was both surprised and saddened by what I found when I began immersing myself in the gender debate in the context of female-only spaces and exclusions based on sex, which is currently a protected characteristic under the Equality Act (EA). Moving towards self-identification with no proof required would mean any male could enter female-only spaces and to most this may seem like Not A Big Deal — most of the males I know now are kind and wonderful but my past is littered with sexual abuse and violence perpetrated by males who now will be able to access vulnerable women. My interest was peaked and I began a curious exploration of the intersect between disability and gender and how when existing legislation that had served as a shield for disabled people, proposed gender legislation could unintentionally become a blunt instrument.
The social model of disability is based on the premise that an impairment is only disabling in a society that isn’t flexible enough physically or attitudinally to address everyone’s needs. Disability as an identity is a richly diverse tapestry of those who proudly embrace it and those who do not wish to think of themselves as belonging to a group that still carries such stigma amongst non-disabled people, fuelled in no small part by the media. But the progressive parts of society appreciate that making reasonable adjustments to enable people with disabilities to function is not merely a way to avoid legal ramifications, but a way to benefit from the value they bring.
One of the core tenets of the EA is that of balancing one group’s needs against those of the other. Employers and service providers are required to adjust so as not to disadvantage us. Many of my friends are lifelong, well-respected and extremely knowledgeable disability activists and I was surprised at first when they repeatedly reminded me that sometimes an employer can and should make a decision to sack a disabled person whose needs are too complex to be met. That someone with an intangible mental health condition is not automatically protected by law unless they can prove that their condition impacts them enough to cause disability, day-to-day, on an ongoing basis.
There are many grey areas where making an adjustment for one person with a disability puts someone else — either someone with a different disability or someone with no disability — at a disadvantage. This is where the concept of ‘reasonableness’ comes in. If I need changes to a role that a small business cannot accommodate, then it is reasonable for them to refuse. If someone with Post Traumatic Stress Disorder is distressed by certain topics of conversation, they can reasonably expect a warning about content when possible — but not to censor others or expect all triggers to be removed from conversation. Instead, they hopefully seek treatment that enable them to manage that distress. Both sides are supported to take responsibility for their part under the current EA, which encourages compromise and underpins the notion of a shared contribution towards a mutual benefit. In the imperfect world we live in, there are still times where things will be out of reach for disabled people. If this wasn’t the case, the social model of disability wouldn’t exist.
Gender, however, was generally accepted within the feminist model I was raised with to be a restrictive set of stereotypes producing imbalance between the sexes. Sex was the reason for my oppression because I was female, and gender was the method. For many disabled people, performing gender was always fraught with challenges. We rarely see sexy femininity or strong masculinity modelled by people like us; disability and sex was and is viewed as an oxymoron, and there remains a socially acceptable eugenics-style question mark over our right to reproduce. We are not viewed as sexual beings in the same way.
As with any two sets of minority rights, there are places where disability and gender start to intersect.
Take autism as an example: Subjective reasonableness is a very murky prospect when many people with autism are not able to moderate their behaviour as others may want us to. Autism is over-represented in the trans community; we are vulnerable to trauma that could manifest as gender confusion later on and seeking to find solace from roles that feel alien. We may mimic others to fit in, grasping at many different identities — including gender identities — to feel ‘right’. This can leave us with a questionable sense of self, an unsettling feeling of not knowing our own minds, which builds resistance to any exploration of ourselves and sets up an ‘us vs them’ mentality that others may use to their advantage.
Support is geared towards changing us to fit with a world we struggle to understand and that will never understand us. It is certainly not a legal requirement for others to adapt their language or overlook their own needs to include people with autism, whereas changing gender may appear to offer a way to resolve these feelings and find a sense of longed-for community, whilst proposed legislation forces others to modify their language and adapt in a way that seems appealing when feeling out of control is a permanent state of being. I can certainly relate to this, but since the only element of ‘femaleness’ I relate to as an autistic woman is my reproductive biology, I place a great deal of importance on this and that means I depend on sex-segregation to mitigate some of the vulnerability to violent crime that I have experienced because I am autistic and female. It’s an extremely rational response (as #MeToo disturbingly demonstrated).
Other disabled females rely on accessible spaces to take part in public life because of physical impairments, but read any online exchange about disabled toilets and you’ll find endless non-disabled people who decide their wants trump the needs of people with disabilities. Recent guidance for schools in Scotland advocates that trans pupils use accessible spaces to get changed if female pupils are uncomfortable sharing with them, with no mention of the rights of disabled pupils to the only toilet facilities they can physically use.
There are some other problems too:
Some common characteristics of autism are hyperfocusing on tiny details, perhaps being pedantic about language and struggling with change. A person with autism might not find it easy to switch gender pronouns for someone, they may reflexively correct ‘they’ to ‘he’ or ‘she’ not to be deliberately rude, but because it feels physically uncomfortable if they don’t. Usually knowing someone with autism means adjusting your expectations when interacting with them but how would this work for someone who would interpret this as misgendering? If the law was to criminalise repeated offences, this would clearly impact on this existing protected characteristic of disability in a way that we’re not able to discuss for fear of retribution. I’ve found labels ascribed from a place of fear, like ‘ableist’ or ‘transphobic’ are often used as a threat to avoid the discussion that could help us arrive at a solution that works for everyone.
Those who engage in dialogue even when they bitterly disagree on things (like the right to die) are demonstrating the value of people with disabilities in society. We’re such a diverse community that we’ve had always had to thrash out complex incompatibilities between our various needs. Difficult conversations with those you respect as human beings can actually help iron out inconsistencies and anticipate resistance in order to strengthen your position and decide on reasonable compromises. As frightening as it feels to be open to having your mind changed, when it happens it feels almost like a rebirth and one that brings positive growth with no adjustments required. Ask yourself if something you’re asking for is reasonable and be honest in your answer.

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