Datun - So you can't discriminate against somebody on the basis of them being trans, as it's a protected characteristic. But could you refuse them entry into a woman's only space, say, on the basis that they are biological men? Citing the fact that you would include a transman, therefore it's not about being trans?
At the moment you can exclude transwomen (with a GRC or the intention to get one) from female only services if you can show it's a 'proportionate means of achieving a legitimate aim'. Orgs are supposed to decide this on a case-by-case basis and be able to objectively justify it. here's the explanatory note for the relevant paragraph (Schedule 3, part 7, para 28.).
The Trans Equality Report recommends getting rid of this exception for any transwoman who has a GRC (para 132). The report also recommends changes to the GRA so that to get a GRC you basically just need to sign a form and send off the fee (para. 45). These are the changes that are being consulted on this autumn. This will be a govt. bill, not a private member's bill. As such, it's far more likely to become law than Miller's gender identity bill of last year.
So joining the dots, if both of these recommendations were passed into law, women's services would be powerless to exclude any male with £140 and the ability to sign his name.
The legislation is sex-neutral. It refers to single-sex services and excluding transexual people. There's nothing specific in there to guide on whether it would be currently legal to include transmen but not transwomen in female only services. The legislation was written at a time when there weren't many transmen at all and before the activism really got going. I doubt that specific scenario ever occurred to anybody.
This is the sort of thing that case law determines. A court could decide it is a proportionate means of achieving a legitimate aim to have a group/service/space for people with female sexed bodies and that this could legitimately include transmen but exclude transwomen. Or they could decide that by including transmen it's not a single sex service at all and we have to let all men in.
Transwomen without a GRC and not intending or in the process of getting one are currently not protected and can be excluded from women only services, along with any non-binary, genderqueer etc. men who temporarily feel a bit feminine. The Trans Equality Report recommends changing the protected characteristic of 'gender reassignment' to 'gender identity' which would make it harder to exclude all of the above (paras 17-20). This was the basis of Miller's bill last year that ran out of time. The exact wording of that bill was never published. It'll be back, I have no doubt, and will be based on these recommendations.
The added snags are:
- There's provision in the GRA that makes it illegal to disclose that someone is trans if you've obtained that knowledge in a professional capacity.
- It would probably count as discrimination (harrassment) under the EA to ask someone if they have a GRC or intend getting one. In fact there's a whole nother section in that bloody report that refers to that specifically, but I don't have the ref to hand.
So the vast majority of people who want to keep their job/not be taken to court, especially in the public sector and any third sector org. reliant on funding from the public sector (many! most of the orgs now providing vital services), daren't question anyone anyway.
The criminal justice system still gets to see and make decisions based on proper documents but everyone else is going out on a limb if they want to challenge this.