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Equality Act

(36 Posts)
JoodyBlue Tue 09-Feb-21 12:09:36

Can any of you knowledgeable posters tell me whether or not the term gender reassignment in the Equality Act relates only to those who hold a GRC? I was under the impression that it does. I thought that this was the issue discussed around the self ID question. I also thought that this was the point that Ann Sinnott is raising in her case.

I am thrown due to workplace LGBT toolkit stating simply that gender reassignment is a protected charactertistic regardless of medical transition. That is all it says. No mention of GRC. I don't understand that this assertion is correct. But I am second guessing myself. I am not going to challenge them but I would like to know for my own sanity.

OP’s posts: |
Ereshkigalangcleg Tue 09-Feb-21 12:13:44

No, it is woolly and vague, which is a large part of the problem, but a GRC isn't necessary.

GCAcademic Tue 09-Feb-21 12:14:22

No it doesn't.

Ereshkigalangcleg Tue 09-Feb-21 12:14:35

And just to clarify you don't need medical transition to get a GRC.

MillieEpple Tue 09-Feb-21 12:15:23

It says undergone 'or proposing to undergo' which is vague

Ereshkigalangcleg Tue 09-Feb-21 12:16:53

I also thought that this was the point that Ann Sinnott is raising in her case.

The point Ann Sinnott is raising is that EHRC guidelines were produced saying it would be likely to be illegal to have female only spaces that MTF trans people couldn't access, under the Equality Act. This is a false claim.

gardenbird48 Tue 09-Feb-21 12:26:33

The pc of Gender Reassignment is acquired by anyone who has started any aspect of transitioning (I can’t get at the exact EA wording atm but can attach a link if it hasn’t already been done while I write this). So there is not medical or GRC requirement just a simple declaration of intent.

The point that may be most relevant to your question is that the pc of Gender Reassignment protects that person from discrimination for transitioning. It does NOT confer the rights of the opposite sex on the transitioner.

So someone transitioning is protected from being sacked or bullied because of their trans status but it does not give them the right to access spaces and facilities of the opposite sex.

For discrimination purposes the comparator for a transwoman would be another male. So if the male is not given certain privileges, the transwoman wouldn’t either.

The website Feminist Current gives some useful examples like when the transwoman claimed discrimination because a female patient wanted a female carer. The comparator for that case would be a male who would also have been rejected so no discrimination.

If a person has a GRA it is slightly different (I’m not sure exactly how) but it is still lawful to exclude a male transgender person from female spaces like toilets, changing rooms, female hospital wards etc (these are given as examples on the explanatory notes for the EA 2010).

‘Confusion’ on this has been artificially created by organisations with vested interests (Stonewall et al) but looking at the text of the law and the clear examples in the explanatory notes I don’t see why there is any confusion at all.

UppityPuppity Tue 09-Feb-21 12:31:53

The point Ann Sinnott is raising is that EHRC guidelines were produced saying it would be likely to be illegal to have female only spaces that MTF trans people couldn't access, under the Equality Act. This is a false claim.

Yes. The Equality Act states for most things you cannot discriminate based on gender reassignment, but there are single sex exemptions which acknowledges that in some areas, excluding individuals based on sex meets a legitimate aim. With this you can exclude based on sex, not gender reassignment. So for example, a woman’s cricket team could lawfully exclude a TW (even with a GRC) based on the fact that a TW is male and the exclusion is based on sex, but couldn’t exclude a TM because exclusion would be based on gender reassignment, not sex.

This would be a legitimate aim- based on safety, fairness and equity of access. Obviously lots of places completely ignore this and admit the TW - prisons, hospital wards etc - hence Ann Sinnott’s claim.

There was a good legal feminist blog that explains it - if anyone can post.

Sillydoggy Tue 09-Feb-21 12:39:14

If the person has a GRC the comparator for discrimination is an actual woman as the GRC holder is legally female. If they don’t have a GRC then, as described above by gardenbird48, the comparator is a man without the protected characteristic of gender reassignment. Exemptions in the GRA and the Equality Act allow you to discriminate against a GRC holder for a legitimate reason.

Datun Tue 09-Feb-21 12:39:50

Yes, the wording says something like undergoing or proposing to undergo gender reassignment. But then doesn't even properly define gender reassignment, other than 'changing attributes', which could be interpreted as clothes or anything. But as you have the protected characteristic even if you are just considering it, it's fairly meaningless.

You also don't have to be considering it at all. You can be discriminated against on the basis that someone thinks you are.

Like someone could discriminate against you on the basis that they think you are gay.

What it means is you can't be treated differently to somebody who doesn't have that protected characteristic.

In terms of how that relates to women, if a man has a GRC, the comparator is someone else of their same legal sex. So it would be a woman. If they don't have a GRC, it's a man.

So without a GRC, are you treating this person differently to any other man?

With a GRC, are you to treating this person differently to a woman?

Also, there are still exemptions built in even with a GRC. No-one at all was making a law that said, eg, rape survivors can't choose the sex of their counsellor, men can play women's sports, and rapists can share cells with women.

But the definitions are woolly. I was told that the law often does this deliberately, to leave room for interpretations.

Originally TRAs claimed that a GRC was just an admin issue. But it became quite clear, that the correct interpretation would be that a GRC impacted on which sex a man would be compared with.

Take all Women shortlists, for instance. It could be argued that it was legal for a man with a GRC to be on one, because they were legally female. But a man without a GRC is still legally male and cant be.

Ann Sinnott is seeking legal clarification from the EHRC, the body who is meant to provide guidance about the law.

They have been providing the wrong guidance, and she is demanding the correct interpretation, and proper clarification. Precisely because so many lobby groups are interpreting the law to the huge detriment of women.

If you google her fundraising, she has an easy to understand explanation about it.

Datun Tue 09-Feb-21 12:44:37

Self ID meant that you could get a GRC, without living for two years in role and without a diagnosis of gender dysphoria.

So download the form from the Internet, fill it out, send off a cheque, and get your certificate in the post the following week.

Women were told, over and over, that it was just an admin thing. A nice-to-have. But it turns out that no, it alters the comparator when you are talking about whether you can or can't discriminate.

Yes, it's confusing. Because no one dreamed that the law would be twisted to allow things like rapists into women's prisons.

334bu Tue 09-Feb-21 12:48:12

*the law would be twisted to allow things like rapists into women's prisons.*

Or according to Devon's Health Board policies male sex offenders into female only wards.

JoodyBlue Tue 09-Feb-21 12:54:47

OK thanks everyone. I am clearer. Much appreciated all.

OP’s posts: |
Aha85 Tue 09-Feb-21 13:04:01

If a man decides that they are going to become a transwoman and mentions it to their boss, they are covered by the potected characteristic of gender reassignment. This is a good thing. It means they cannot be fired just because they have come out as a transwoman.

However, one does not have any right to be treated as the opposite sex in accordance with the Gender Recognition Act 2004 unless/until one obtains a gender recognition certificate (GRC). A transwoman without a GRC is legally male and their sex protected characteristic for the purpose of the Equality Act 2010 will be male - see R (Green) v SSOJ)www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

There are certain provisions in the Equality Act 2010 which provide for eg single sex services which can mean that transwomen can be excluded from female only services in some circumstances where there is justification even if they have a GRC and are therefore legally female. Transwomen without a GRC can simply be excluded because they are legally male without the need for justification.

Barracker Tue 09-Feb-21 13:33:08

7Gender reassignment
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

(My bold)

My Notes:
1. To have the PC of "gender reassignment" you are referred to in this law as a "transexual person" (not transgender)

2. To have the PC of "gender reassignment" you must at the barest minimum have a plan to CHANGE physiological or other attributes of sex

3. What does the law consider the physiological attributes of sex to be, and what degree of change to them is deemed material here?

4. What does the law consider the other attributes of sex to be, and what degree of change to them is deemed material here?

5. The characteristic is named as (but doesn't define) gender.
But the criteria reference sex.

I'm of the opinion that it would be very interesting should anyone ever legally challenge a person claiming this PC. For them to prove they have this PC some of these questions would need to be clarified in court.

Many people claiming protection under this characteristic have no intention to change anything other than their name and pronouns. I'd like to see a court try to rule that physiological attributes of sex means the honorific Barclays Bank put on a credit card statement.

Arguably, since it is completely impossible to change a physiological (or other) attribute of sex in any way that alters sex even a speck, (a woman with a hysterectomy or mastectomy hasn't changed her sex at all, although she has experienced a change in an attribute of her sex) then it can be said that no matter what change a person proposes to undergo it remains immaterial to the matter of their sex.

I'm not a lawyer, but when I read extracts like this I realise that the law is in fact a monumental ass.

Gottalife Tue 09-Feb-21 14:43:02

Ereshkigalangcleg

No, it is woolly and vague, which is a large part of the problem, but a GRC isn't necessary.

Their is a lot of obsession about the GRC on this forum. Really a GRC is a very private document. Nobody is required to show it and nobody has the right to see it. All the Women's space police can do is ask for i.d. passport, driving licence, birth certificate or drop your trousers please. Good luck with that.

UppityPuppity Tue 09-Feb-21 14:51:46

All the Women's space police can do is ask for i.d. passport, driving licence, birth certificate or drop your trousers please. Good luck with that.

I obviously have very good luck - because I can tell those who are not women without reference to a passport, driving licence birth certificate or the dropping of trousers don’t you mean lifting of skirts?

Barracker Tue 09-Feb-21 15:06:46

The GRA allows exclusion of male people with GRCs from female spaces.

Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.

Fortunately, that's a pretty easy judgement call, and doesn't require the presentation of paperwork or the "dropping of trousers" (wtf is wrong with you?)

Should the method of identifying and excluding male people from female spaces strike you as less than ideal, I'd suggest you lobby to repeal the GRA and revoke all legal fictions that allow people to misrepresent their sex and undo all suggestions that 'gender segregation' replace sex segregation.

After all, it's the misrepresentation of sex combined with an unwillingness to respect female boundaries and rights that is the problem here.

Fix those two factors, and fairness is restored.

Datun Tue 09-Feb-21 15:49:59

*Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.*

There you go Gottalife.

The law, the actual law that trans rights organisations lobbied for, recognises that people can tell.

Tibtom Tue 09-Feb-21 15:58:42

Gottalife are you suggesting that transwomen are law breakers? I think the word 'transphobic' is thrown around indiscriminately but surely it is fitting for your accusation.

Gottalife Tue 09-Feb-21 16:29:02

Tibtom

Gottalife are you suggesting that transwomen are law breakers? I think the word 'transphobic' is thrown around indiscriminately but surely it is fitting for your accusation.

By not admitting to having their birth certificate altered maybe years ago? Certainly not.
No laws are broken. It is their private business. How is that transphobic?

Gottalife Tue 09-Feb-21 16:31:10

Datun

*Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.*

There you go Gottalife.

The law, the actual law that trans rights organisations lobbied for, recognises that people can tell.

Bloody hell that's just asking for trouble if you get it wrong.

Datun Tue 09-Feb-21 16:33:33

Asking for trouble

Might I suggest that you don't volunteer to do any PR for transgender people.

Tibtom Tue 09-Feb-21 18:32:12

Gottalife your rather ridiculous suggestion that we need to look down transwomen's boxers to determine if they are male transwomen rather than women is predicated upon the assumption that transwomen will enter spaces they are excluded from by law rather than assuming transwomen will respect the law and not try to enter these spaces.

Gottalife Tue 09-Feb-21 19:10:16

Tibtom

Gottalife your rather ridiculous suggestion that we need to look down transwomen's boxers to determine if they are male transwomen rather than women is predicated upon the assumption that transwomen will enter spaces they are excluded from by law rather than assuming transwomen will respect the law and not try to enter these spaces.

What spaces? They can enter womens spaces lawfully and they wont get arrested for it. Unless behaving inapropriately but that is the same for anyone.

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