Pt 4. Discrimination. Don't gobblefunk around with words
The legal bit.
Thank you for reading PARTS ONE, TWO and THREE on language, and communication disabilities in children and adults.
I hope you found it interesting and useful.
You’ve had your starter, main and pudding and this is your cheeseboard. Tuck in.
Oh, just a quick caveat first. I’m not a legal expert. But I’ve hung around with a few. As I’ve said before, happy to correct any errors of fact. If you don’t like the facts, well, that’s a bit different.
And I know laws differ across the UK. This is an overview.
UN Convention on the Rights of Persons with Disabilities (CRPD)
The UK signed up to the CRPD Treaty of 2006 in 2009. As the EHRC states,
By following CRPD, the UK agrees to protect and promote the human rights of disabled people, including:
eliminating disability discrimination
enabling disabled people to live independently in the community
ensuring an inclusive education system
ensuring disabled people are protected from all forms of exploitation, violence and abuse
14 years on. Have we eliminated disability discrimination or has it got worse? Hmm.
The Equality Act 2010
Disability is a protected characteristic in The Equality Act 2010. Guidance on what the Equality Act 2010 means by ‘disability’ in full is here.
If a child or adult has a disability, they are being discriminated against if he or she is treated less well or put at a disadvantage for a reason that relates to his or her disability in one of the situations covered by the Equality Act.
As EHRC state, this would include,
the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible. The discrimination does not have to be intentional to be unlawful.
In addition to not discriminating against people with disability, local authorities and educational bodies like schools and universities must adhere to the Public Sector Equality Duty (PSED) under The Equality Act 2010.
Public Sector Equality Duty (PSED)
As Citizens Advice state,
The public sector equality duty is a duty on public authorities to consider or think about how their policies or decisions affect people who are protected under the Equality Act. Private organisations and individuals don’t have to comply with the duty. If a public authority hasn't properly considered its public sector equality duty, you can challenge it in the courts.
The PSED has been in force since 2011 and has the following requirements:
public authorities … are now required, in carrying out their functions, to have due regard to the need to achieve the objectives set out under s149 of the Equality Act 2010 to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
To ensure transparency, and to assist in the performance of this duty, the Equality Act 2010 (Specific Duties) Regulations 2011 require public authorities, named on , to publish:
equality objectives, at least every four years (from 6th April 2012)
information to demonstrate their compliance with the public sector equality duty (from 31st January 2012)
Equality Impact Assessments (EIA) are required by the Equality Act 2010 to comply with the PSED. They’re not mandatory but help evidence that public authorities are meeting the requirements of the PSED and courts place significant weight on the existence of some form of documentary evidence of compliance with the PSED when determining judicial review cases.1
If you think that EIAs are absent or inadequate in relation to communication (or any) disabilities, you can raise a legal challenge.
CHILDREN
Disability Rights
If your child has a specific need as outlined by the Government - children with special educational needs and disabilities (SEND) - then this also comes with rights and responsibilities. These are very clearly laid out by the Government and it is worth looking at these in the context of communication disability.
Here’s what the Government says about Disability Rights in Education:
Education
It’s against the law for a school or other education provider to treat disabled students unfavourably. This includes:
direct discrimination, for example refusing admission to a student or excluding them because of disability
indirect discrimination, for example only providing application forms in one format that may not be accessible
discrimination arising from a disability, for example a disabled pupil is prevented from going outside at break time because it takes too long to get there
harassment, for example a teacher shouts at a disabled student for not paying attention when the student’s disability stops them from easily concentrating
victimisation, for example suspending a disabled student because they’ve complained about harassment
Let’s break this down in relation to children. Here are some hypothetical examples.
Direct discrimination
A school reports that they pride themselves on their LGBTQ+ policies. They exclude a child with communication disabilities because he persistently misgenders others.
Indirect discrimination
A student with Developmental Language Delay is expected to understand posters around the school which only use “gender neutral” language
Discrimination arising from a disability
In drama lessons, a female student reports that she is “non-binary” and is to be referred to as “they”. Another student in the drama lessons, who has Autism cannot help but consistently use “she”. The “non-binary” student complains and the student with ASD is made to leave the drama lesson and take up a different course.
Harrassment
A teacher repeatedly calls a student with ADHD out in front of the whole class and gives demerits because the student cannot concentrate sufficiently well enough to use another student’s preferred pronouns
Victimisation
The student with ADHD makes a complaint about the teacher as he is unable to meet the demands of using preferred pronouns and the student is placed in detention for making the complaint
Reasonable adjustments
Further, here is what the Government says about education providers’ duties:
Reasonable adjustments
An education provider has a duty to make ‘reasonable adjustments’ to make sure disabled students are not discriminated against. These changes could include providing extra support and aids (like specialist teachers or equipment).
Schools are not subject to the reasonable adjustment duty to make alterations to physical features, like adding ramps. They must make the buildings accessible for their disabled pupils as part of their overall planning duties.
Let’s understand reasonable adjustments in terms of communication disability. If a student is expected to understand or use preferred pronouns, “gender neutral” language (like “pregnant person”, or neologisms like the prefix “cis-” and neopronouns like “xe/xir/xem”), then this is the direct opposite of a reasonable adjustment; it is a barrier to understanding and expression, and could be deemed discriminatory.
If other students are using new terms that the student finds difficult to understand, it is perfectly reasonable to help the student with a communication disability to understand the words others are using but not to demand that the student understands or uses those words consistently or at all for himself.
A teacher cannot purposefully use words with a student that she knows the student cannot understand or use for herself.
Nor can educational or therapeutic efforts be focussed on the comprehension or expression of preferred pronouns or gender-neutral language as a priority over other language needs of the student, especially if time for therapy is limited.
Education, Health and Care Plan (EHCP)
Section B of a child’s Education, Health and Care Plan (EHCP) must
accurately describe each one of the special educational needs of your child, based on:
Cognition and learning ability
Communication and interaction skills
Social, emotional and mental health.
Sensory and physical disabilities
It may be useful to provide examples here of communication demands that a child cannot meet that also highlights their specific disability and needs.
What is so frustrating is that it’s not as if the difficulties I’m detailing here haven’t been noticed. In 2022, Suella Braverman, the then Attorney General said in her speech at The Policy Exchange:
it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a child […] It is therefore wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns […] Further, no child should be made to fear punishment or disadvantage for questioning what they are being taught, or refusing to adopt a preferred pronoun for a gender questioning child.
Safeguarding
There is also a role in supporting children with communication disabilities when it comes to safeguarding.
The Six Principles of Safeguarding are:
1. Empowerment
People being supported and encouraged to make their own decisions and informed consent
2. Prevention
It is better to take action before harm occurs
3. Proportionality
The least intrusive response appropriate to the risk presented
4. Protection
Support and representation for those in greatest need
5. Partnership
Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse.
6. Accountability
Accountability and transparency in safeguarding practice
And the 5Rs of Safeguarding are:
Recognise
Respond
Report
Record
Refer
As Haughton and Rogers point out, just some of the issues with communication in safeguarding include,
A common theme in SARs and SCRs [Safeguarding Adults Review (SAR) or Serious Case Review (SCR)] where individuals have communication difficulties is that their “voice” is not heard
Assumption that behaviours are linked to impairment invisibility
Fear and anxiety about communicating with individuals who cannot verbally communicate ask to help / what resources to use?
Not offering help in a language / format that the person or family will understand
If confusing language is being used in education, social, health or justice settings, then I would argue that this places the child with a communication disability at even greater risk of harm, abuse and neglect.
ADULTS
Now, let’s consider communication disability in adults. They are also covered by The Equality Act 2010 (and see above) where they meet the definition of ‘disability’ as it is a protected characteristic for all.
If an adult with a communication disability is in education, then she also has rights in relation in education providers’ duties and making reasonable adjustments. Universities are also covered in PSED under The Equality Act, 2010.
Let’s look at The Care Act 2014 and The Mental Capacity Act 2005 in terms of health and social care for adults with communication disabilities.
The Care Act 2014 covers many aspects of social care for adults with disabilities and transition from childhood to adulthood needs. Disability Rights UK is just one organisation that provides a guide to the Act, which you might find useful to check out as I’m not covering every aspect here. (You may notice they are also recommending feedback to CQC on services that CQC regulates – do send in your feedback!)
The general principles of social care are:
Promoting Wellbeing
Person Centred
Independent Living
Human Rights
In Promoting Wellbeing, the Act states,
All of this is incredibly important but note 3(b) and (e). This means that if the adult with a communication disability is to be understood fully by others and can participate in decision-making about his or her care, then optimal communication support is required. This cannot be ignored, minimised or inadequately carried out.
As Disability Rights UK point out in terms of Promoting Wellbeing,
This is a very important principle and means that you can challenge your local authority if you think they are not taking any notice of you and how you want to live your life or are not treating you with respect and dignity.
Also embedded in The Care Act are the Six Principles of Safeguarding as stated above.
None of the above is possible without adequately supporting people with communication disabilities to be involved in their own personal health and social care but also as stakeholders helping to improve practice.
Mental Capacity Act 2005
This Act empowers people to make decisions for themselves.
As stated in the Mental Capacity Act Code of Practice,
It applies in conjunction with other legislation affecting people who may lack capacity in relation to specific matters. This means that healthcare and social care staff acting under the Act should also be aware of their obligations under other legislation, including (but not limited to) the:
Care Standards Act 2000
Data Protection Act 1998
Disability Discrimination Act 1995
Human Rights Act 1998
Mental Health Act 1983
National Health Service and Community Care Act 1990
Human Tissue Act 2004
Further,
The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process.
and that the second of the five Statutory Principles states,
There is a risk that language used during an MCA assessment unnecessarily includes ‘inclusive’ or ‘gender neutral’ language and/or preferred or neopronouns or the topic is same-sex care and an individual is assumed to understand the concept or language around ‘trans’ or ‘gender fluidity’. Such language must not be used as the ‘default’. As Principle 2 makes clear, all practical steps and support must be utilised. To fail to do this breaks the requirements of the Act and significantly affects the individual’s wellbeing.
As the HF Trust point out,
we also know that despite [The Mental Capacity Act] being in force since 2007 it is still widely misunderstood.
As the NHS website on the Mental Capacity Act states, amongst other means of helping people make their own decisions:
could information be explained or presented in a way that's easier for them to understand (for example, by using simple language or visual aids)?
have different methods of communication been explored, such as non-verbal communication?
could anyone else help with communication, such as a family member, carer or advocate?
Assessments should be carried out appropriately by the relevant professional. If someone you care about/for has a communication disability and an MCA has been carried out and you have concerns, ask for:
Names and job titles of the professionals who carried it out; it really should be done in pairs
How their professional roles are relevant to the specific topic under discussion and what expertise they have to support the individual to communicate
How was the individual supported to reach a decision about the specific topic
A copy of the assessment and script of the discussion
If you wish to challenge a capacity assessment (for any reason but including inappropriate use of gender ideological language), this is a handy summary by Mencap:
You may want to challenge the outcome of a capacity assessment if, for example you feel that a person had the capacity to make a decision themselves but was not allowed to; or if a decision was made on someone’s behalf without an assess of their mental capacity being made beforehand.
If you wish to challenge the outcome of a capacity assessment, or the lack of an assessment, it is best to start by speaking to the person that carried out the assessment or who should have carried out the assessment. You should ask them for their reasons and explain why you disagree. If this does not help, you can ask for the decision to be reviewed, either by the person that made the initial assessment, or by the organisation or body involved– for example, social services or a hospital.
If you are still dissatisfied, you could put in a formal complaint using the organisation’s complaints procedure. If you are still unhappy with that decision, you may be able to bring your challenge to an ombudsman.
Depending on the circumstances, as an alternative to going through the complaints process and then taking your case to the ombudsman, you may be able to challenge the decision at the Court of Protection. However, there are strict time limits and procedures for doing this so you should seek advice as soon as possible to ensure that you do not miss any important deadlines for making the challenge.
In essence, no organisation should be using language that adults with communication disabilities cannot understand, retain, weigh up and express. Ever.
Reasonable adjustments
This duty is anticipatory and no organisation can wait until a disabled person needs their services. As the EHRC state, the organisation
must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment or a learning disability.
The disabled person must not be placed at a substantial disadvantage compared to people without a disability.
Health
Now take a look at this:
And consider if implementing these recommendations is consistent with the CQC regulatory requirements of the Accessible Information Standard (AIS).
Here’s what the AIS entails according to CQC:
So I ask you, is it reasonable to:
Make sure signs and leaflets are gender inclusive
Ask ALL service users about their pronouns
Use [gender] inclusive language when talking to, or about, groups of people
Offer your own pronouns when introducing yourself
Perhaps one group of people is included more than another here? It’s not as if NHS England don’t have detailed AIS guides entitled “Different types of accessible information and communication support and who may need them” or “Legal Duties to meet individual’s information and communication and support needs” amongst others. Why does gender inclusive language trump disability-friendly language when implementing services and in leaflets, posters and signage?
To raise concerns or make a complaint, do so with the local NHS Trust in the first instance and you can also contact CQC here.
How health information is communicated online is also incredibly important. The NHS has a Content style guide – Inclusive Content covering:
They ask for contributions to the Guidance. So let them know here!
Employment
Reasonable adjustments must also be made by employers where employees have a disability.
Now imagine you’re a 24 year old man, who had a road traffic accident and incurred a brain injury. You’ve had intensive rehabilitation for 18 months to get back on your feet (literally) and worked hard on your speech and language. You’ve recovered well and many people wouldn’t spot your mental fatigue, mild aphasia and working memory difficulties. You don’t look like someone with any residual disabilities.
You work a few hours a day over three days a week in a coffee shop trying to get back into a regular way of life. One day, a male customer hears you say to the server, “his coffee is ready”.
The male customer is wearing a dress, high heels and make-up and carrying a handbag. You had noticed that this man would probably regard himself as a woman and as your employer is signed up to LGBTQ+ policies, you meant to say “her” as you don’t want the sack, you’ve worked hard to get this far. But part of your aphasia is agrammatism. And you mix up pronouns. The man who regards himself as a woman puts in a complaint against you and wants you disciplined or sacked.
Who is in the right? Who has the rights? Which ones?
In short, it’s against the law for employers to discriminate against you because of a disability. The Equality Act 2010 protects you and covers areas including:
application forms
interview arrangements
aptitude or proficiency tests
job offers
terms of employment, including pay
promotion, transfer and training opportunities
dismissal or redundancy
discipline and grievances
CONCLUSION
In the UK, around
350,000 adults have aphasia
685,000 people have schizophrenia
944,000 adults have dementia
700,000 adults and children have autism
1.5 million people have a learning disability
2.6 million people have ADHD
12 million people who are d/Deaf or suffering from hearing loss
And there are millions more who experience the conditions covered (and others not covered) in this blog.
And I’ll be damned if I’m going to let their rights be trampled all over by ignorance, incompetence or ideology.
The UK signed up to the UN Convention on the Rights of Persons with Disabilities, now let’s fulfil our Treaty obligations.
People with communication disabilities have rights.
People with disabilities have rights.
We must do everything within our power to uphold those rights.
This blog post is for signposting purposes.
LEGAL DISCLAIMER: I am not a lawyer and this should not be considered legal advice. You should seek appropriate counsel for your own situation. And please note, this post is directed toward readers in the United Kingdom. If you are engaging in business or other activities outside the United Kingdom, other laws may and will apply.
Hickman, T. 2013. ‘Too hot, too cold or just right? The development of the public sector equality duties in administrative law’, Public Law, April, pp325-344, p340