Report that EHRC's statutory codes of practice are under review

[ResisterRex]

Sex matters has posted that the EHRC is reviewing the codes for employment, services, public functions, and equal pay. This is not on the EHRC site but the EHRC has recently tweeted about sex discrimination:

sex-matters.org/posts/single-sex-services/statutory-codes-of-practice-under-review/
"On 27th April 2022, at a seminar on single-sex services and the Equality Act 2010, at Matrix Chambers, Equality and Human Rights Commissioner Akua Reindorf shared news that the EHRC is reviewing the statutory Codes of Practice."

twitter.com/EHRC/status/1518973417441091584 (dated 26 Apr) with link to this: www.equalityhumanrights.com/en/advice-and-guidance/sex-discrimination

Yes, saw this, and also some TRA accounts tweeted on it as well.

Two positions:

1. The Codes of Practice needed to be updated because they didn't sit well with the Equality Act (and the non-statutory guidance was just updated first).
2. The recent update to the non-statutory guidance was unlawful because it contradicted the Codes of Practice.

I'm for 1. The Equality Act is the legitimate authority on what is/is not lawful, and the Codes of Practice should align with it, or change.

But I can see why this upsets the many people who have been misled about the law. Stonewall has a lot to answer for.

Hopefully it will clarify some of those supposedly grey areas! Given recent EHRC publications I doubt it will make them worse!

As far as I remember it, the original Statutory Code of Practice for service providers was released in 2011. The part of that Code dealing with single sex spaces seems to have been written with the influence of trans activists. Now that the guidance has been reviewed and revised to align with the Equality Act 2010, the Code has to reviewed and revised to align with EqA also.

For example, the original code refers to instances of inclusion of males in female spaces that should be done on a 'case-by-case' basis per individual person. This is a misreading of the EqA, which makes no reference to 'case-by-case' at all.

The Code needs to go back to the primary source, the statute.

‘inclusion of males in female spaces that should be done on a 'case-by-case' basis per individual person.’

What do they mean by this? ‘Case-by-case’ or all at once, the outcome is the same. For a space to legitimately be using the exception, it must use it for everyone who has that characteristic.

So if you choose to exclude everyone over the age of 24 from a service (and you can), the only test is whether the person is actually any older than 23 years 364 days old.

If you choose to exclude all females from a service, including legal ‘males’ who have acquired that status through successful application for a GRC (and you can), then the only test is whether the person you are excluding is a female.

The case you make that such an exclusion is proportionate and in pursuit of a legitimate aim could be made once, or every time. The outcome is the same.

What does case-by-case give you that a blanket rule doesn’t?

The case you make that such an exclusion is proportionate and in pursuit of a legitimate aim could be made once, or every time. The outcome is the same.

TRAs (and their captured government legal advisors) have long claimed that blanket rules aren't permitted and it depends on the person as to whether an exclusion would be proportionate and for a legitimate aim.

I suspect the point of focus on case by case being interpreted as individual person by person, is that it makes it time consuming, personal, full of precedents and therefore practically impossible to use an exception/exemption. Which is how it's worked functionally, to the detriment of females.

Indeed.

From the "TransActual" website, their interpretation:

Similarly, trans women are entitled to be treated the same as any other woman and to access women-only spaces. Under the law, exceptions to this may be applied on a case by case basis if it is shown to be proportionate and justifiable to do so. The legal bar for what is proportionate and justifiable is set very high and is rarely challenged. For example, if a trans woman had a history of sexually harassing other women it may be justifiable and proportionate to deny her membership of a women-only society and the application of the exception under the law would be legal. However, if the same women-only society banned all trans women, it would be a breach of the Equality Act (2010) because the decision would not be proportionate, justifiable or taken on a case by case basis.

www.transactual.org.uk/equality-act

Wow. This is completely incorrect!!

I think I did a Labour-Butterworth gasp reading it.

‘For example, if a trans woman had a history of sexually harassing other women it may be justifiable and proportionate to deny her membership of a women-only society and the application of the exception under the law would be legal. However, if the same women-only society banned all trans women, it would be a breach of the Equality Act (2010) because the decision would not be proportionate, justifiable or taken on a case by case basis.’

Which would only make sense if the use of the exception were ‘males who have a history of sexually harassing women’. It’s not. It’s all males.

Resister

It’s the only direction in which ‘case-by-case’ takes us. We know TW are male. They want that not to matter and only males who have been convicted of violent sex offences (and sometimes not even then) to be excluded.

"Case-by-case" is such a strange concept that I've never heard of outside of those clamouring to get rid of sex-based exemptions. I don't know how they've got so many places to swallow it.

I don't see that there is any real basis for "case by case" when it comes to matters of risk, privacy and dignity. We don't run female only spaces on the basis that some men can come in depending on the circumstances and whether they are proven to sexually harass women in other cases.

By which I mean, that even if my Nigel is lovely, and I vouch for him, he's still excluded from female only spaces because he is male.

I thought the 'case by case' concept came from a tribunal / court case (and not necessarily one which set a precedent) but I could be completely wrong.

And why exactly would anyone self-IDing want to be judged on a 'case by case' basis anyway? Wouldn't that involve the kind of 'genital inspection' that supposedly is so very offensive? It seems very confused.

Female-only spaces should have a blanket ban on males. That's it. That's the case. It's got nothing to do with self-applied labels. It's about excluding the male.

I think as pp said it's supposed to have a chilling effect so service providers don't use the exemptions in practice.

Which would only make sense if the use of the exception were ‘males who have a history of sexually harassing women’. It’s not. It’s all males.

Exactly. As I said, it doesn't apply to men without a trans identity, they don't get a free pass into women's spaces for good behaviour and rightly so.

If it's ok to only say no to a TW in a female only space if you can argue sufficiently that the specific TW in question is too much of a risk?

Well we know how that goes.

What risk? Prove it?
That never happened. If it did, it wasn't that bad.
The women feeling at risk are the ones with the problem and need to get over it
The TW deserves a new chance
You let that TW and that TW come in so you can't say no to that one

And it becomes personal and impossible to argue.

Hence why it has to be blanket policy. Some things must be female only. TW are not female. And this is why even TW with GRCs cannot be in all circumstances treated according to their legal fiction. If it's yes to any male then it has been proven beyond all doubt it will be every male and it will never be possible to say no.

There is no respect or care for females evident anywhere from those driving this. There is no capacity apparent for reciprocation. Words like 'inclusion' are used only as leverage, not from any stable or truly held values. There are those who will throw the door open to the widest possible extent if permitted the smallest chink. And this is why we have and need legal protections: for when people will not respect the rights of others voluntarily.

I would be really interested to hear the talks from the event where she said this. Robin White spoke, as well Reindorf, and also Karen monaghan. So a variety of legal opinions. It sounds really interesting.

My guess is that 'case by case' has been mentioned at some point to refer to services provided and TRA organisations have misused it to refer to individuals.

Yes, this is correct.

From the Equality Act Codes of Practice post consultation report:
www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

vii. Various transsexual stakeholder groups responded to the formal consultation and also participated in the parallel consultation events taking place on the non-statutory guidance.

Feedback from the consultation events was incorporated into the employment and services codes where appropriate, particularly on issues of confidentiality, use of single sex services and the legal definition of transgender.

Then a bit later on:

e. Services, public functions and associations
• A number of concerns were raised about the exceptions, in particular the exceptions for charities, single sex services and separate services.
These sections have been revised as a result.

Press For Change, GIRES and a:gender (civil service trans org) are all named in the list of those consulted. Stonewall are there too but they were still a gay rights org in those days.

The image shows the relevant text from the version put out for consultation in 2010. 'Case by case' is nowhere to be seen. The original consultation documents are available on this archived web page:

web.archive.org/web/20100224003236/www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/

I had always understood (but perhaps am wrong) that not discriminating on the basis of being transgender was in respect of someone of the same SEX, ie you couldn’t exclude a trans woman from a prostate cancer support group on the basis of them identifying as a woman. But now I can’t find any guidance on those lines.

(I’m finding it impossible to copy and paste on this new site version)

Re Crouton19. But the example of an exception given in the legislation is that of it being proportionate and legitimate to exclude a male to female transsexual from an all female assault victim counselling group.