It is now more than 27 years since the House of Lords accepted the ruling of the European Court of Justice (ECJ) in the case of Webb v E.M.O. Air Cargo (UK) Ltd [1995] ICR 1021].
Crucially, the ECJ held that; “there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy… …of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.”
This important and progressive ruling from the ECJ established the modern understanding that any detriment imposed upon a woman because she is pregnant is sex discrimination, because a male comparator is simply not possible.
In many decades of workplace trade union activity, I always felt that one of our highest priorities as trade unionists must be to protect our members who are pregnant. After all, we are all of us only present in the workplace because of a pregnancy!
The Equality Act 2010, one of the last acts of the last Labour Government, established "pregnancy and maternity" as a protected characteristic, providing additional protection to women workers, operating alongside the right not to be subject to sex discrimination.
A generation on from the struggle to get the law to recognise that detriments imposed upon pregnant women are plainly sex discrimination, workplace activists and trade unions have been campaigning for recognition of the rights and needs of women workers going through the menopause. The TUC have produced an online interactive guide.
Last summer, the House of Commons Women and Equalities Committee produced a report with recommendations concerning Menopause and the Workplace. Among the recommendations were that he Government should launch a consultation on how to amend the Equality Act to introduce a new protected characteristic of menopause.
This week the Government produced its response to that report, rejecting that recommendation on the grounds that; "it is important to ensure that the policy is considered in the round to avoid unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination towards men suffering from long-term medical conditions.”
Whoever drafted, approved and published this absurd argument very clearly did so in complete ignorance of the debates which took place around pregnancy and discrimination in the 1990s, leading up to the decision in the Webb case. They can no more be a male comparator for a woman experiencing the menopause, then there can be a male comparator for a pregnant woman.
There may be sound arguments against establishing menopause as a new "protected characteristic", but the nonsensical suggestion that a risk of discrimination against men suffering from long-term medical conditions is one such argument must be dismissed.
If I thought that my individual "identity" or personal experience gave any added weight to the argument I am making here, I would point out that I am just one such man suffering from a long-term medical condition (and one which has led me to years of hormone therapy, with side-effects which mimic in some respects some experiences of the menopause!)
However, since I don’t have any time for identity politics, I won't waste your time with that nonsense, but will instead focus on the nonsense being peddled on behalf of our government, who assert that special provision for women workers experiencing the menopause could somehow discriminate against men.
The fact that such an uninformed and reactionary opinion can be expressed on behalf of the Government in 2023 is indicative of the increasing space within which right-wing "culture warriors" are now able to operate and to push back against the social gains of recent decades.