@PencilsInSpace
"Which bit of the EHRC code does it explain and how?"
Fully, so if people want to look it up it'll be easier for them:
Code of Practice: Services, public functions and associations Statutory Code of Practice ; Chapter 13, s13.57 - s13.60 (Equality and Human Rights Commission, 2011, ISBN: 978-0-10-850972-8)
For those who aren't aware, courts and tribunals are legally obliged to take into account guidance issued in Statutory Codes of Practice produced by the Equality and Human Rights Commission (read; unless there is an obvious reason to not adhere to the guidance issued in the stat code a court will use it to reach its determination). For this particular Statutory Code it's validity was authorised via this Statutory Instrument.
So then the example given here.
Fully, the example given is, "A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful."
When the courts look at this example, or any case where the exemption is being applied, the criteria used will be an objective test to see if the arguments put forward by the service can justify the claim put forward by the service that its discrimination against a transsexual person is both a legitimate aim and a proportionate means. The objective test will take into account all the relevant factors involved in the argument put forth. So in the example give, what relevant factors will the court take into account?
i) The example details a situation where a group of people are involved. Every person in that group, whether a woman or transsexual woman shares something in common, they are all victims/survivors of sexual assault. So when the court considers the case they will take a neutral and dispassionate view of all the people who could be effected by this case, but won't include in their consideration people who don't share that characteristic. Furthermore, the service provider cannot provide a less discriminatory way of providing this specific session. Either somebody is able to attend, or they are not able to attend.
ii) The court will take into consideration that all the people in the example share another characteristic. They all wish access to a group counselling session specifically set-up to help victims/survivors of sexual assault. The court will not take into account people who don't wish to have access to this service. It sounds like a statement of the bleeding obvious, but it's important for (iii) and (iv) below.
iii) It is objectively reasonable to state that that it can be assumed that all the people involved in the consideration have already experienced significant and severe harm. This decision is reached because it is extremely likely like all the people involved in the consideration have experienced sexual assault (because they are seeking access to group counselling session that is focussed on helping victims/survivors of sexual assault), and that they have experienced significant and severe harm as a result of experiencing sexual assault (a statement that objectively stands on its own, and then is also confirmed by the fact that the victims/survivors are seeking access to a group counselling session that is focussed on helping victims/survivors of sexual assault).
iv) it is objectively reasonable to reach the conclusion that because of (iii) anybody, whether they are a woman or transsexual woman, would experience further severe and significant harm if they are unable to access this service for whatever reason. This conclusion is reached objectively because every person being taken into account in the consideration is attempting to access the service and therefore it can be assumed, only the balance of probability, that every person needs to have access to that service, and that independent expert studies show that those who don't have access to such studies not only continue to experience severe and significant harm, but will also experience more severe and significant harm.
v) It is objectively reasonable to state that given the group counselling session is for victims/survivors of sexual assault that the perpetrators of that assault are, by average consideration, considerably more likely to men than women. This can be, again, be verified by independent expert research and evidence. (As a contrary example, if the group counselling session had been set-up for women who had been sexually assaulted by same-sex partners then, of course, that conclusion wouldn't be objectively reasonable. This example-within-an-example is a way of showing that when the parameters of the situation change, the way that the situation is considered also changes).
vi) Up until this point the considerations being made by the court doesn't have to differentiate between women and transsexual women trying to access the counselling service. But now the court decides that it's appropriate to look at these two groups separately for the next sections.
vii) Because the victims/survivors of the sexual assault are more likely to have been assaulted by men than women then it is objectively reasonable to say that the presence of one or more non-transsexual men in the group counselling session could cause any person in that group to experience significant distress as a result of the vulnerability they are experiencing while part of that group and, as a result of that increased level of harm experienced, it is objectively reasonable to state that they may not attend the session as a result. It is also objectively reasonable to consider that a transsexual woman is less likely to perceive a non-transsexual woman as being a non-transsexual man, than a non-transsexual woman perceiving a transsexual woman as being a non-transsexual man. Therefore the likelihood of a person of experiencing distress, and therefore harm, as the result of the perception of a non-transsexual man being part of the group is higher for non-transsexual women than transsexual women. (Note, this isn't a numbers thing. It is just saying that as an average across an unspecified group size a non-transsexual woman is more likely to perceive a non-transsexual man being present, compared to a transsexual woman perceiving a non-transgender man being present.)
viii) The act of deliberately excluding somebody from a service based on a protected characteristic is an act of discrimination, whether lawful or not. The court will recognise that regardless of how lawful the action was, any person who has been discriminated against has experienced harm (this has already been determined by case law involving discrimination with the same protected characteristic but in different areas like employment), and that this must also be taken into account when the case is being considered. (Note that choosing not to use the service is not in itself considered harmful, regardless of the reasons why (unless it can be shown to be unlawful discrimination under EA2010). However, consideration can, and in this example, has been given to the harm caused if, as an average, a woman is may be unable to attend the group counselling session because the presence of a transsexual woman makes them feel too vulnerable to access the service.)
ix) It is objectively justifiable to state that when the group counselling service was set-up the demographics of the country as a whole means that the service provider would expect a much higher proportion of women seeking to access the service compared to the number of transsexual women. Barring other factors (these factors would actually be taken into consideration and revolve around incidence of sexual assault for the relevant groups, population groupings, etc, but is too complicated to take into account here) the court could come to the objective conclusion that the service provider was right in their assessment, on balance the number of women seeking to access the service would be significantly greater than the number of transsexual women.
x) Therefore:
• When taken as an individual experience, the inability of any woman or transsexual woman to access the group counselling service causes the same level of harm, but the transsexual woman would also experience more harm as a result of being discriminated against. Therefore, going by this standard, the service would not be acting legally by excluding the transsexual woman from the counselling service. But that is a subjective test, as it only focusses on the individualistic experiences of a single woman, and a single transsexual woman. I've put it in here to show just how different a conclusion reached by a subjective test of whether something is justifiable is compared to when an objective test is applied.
• Objectively, the harm experienced by any woman or any transsexual woman being unable to access the service is the same. However, any transsexual woman is also experiencing additional harm as a result of the additional discrimination faced in the example provided. But when viewed in totality, the court comes to the conclusion that in this situation the aggregate amount of harm that may be experienced as a result of an unspecified number of women feeling unable to access the service is greater than the aggregate amount of harm that may be experienced by an unspecified number of transsexual woman who have been barred from accessing the service via a discriminatory measure. Therefore, as courts will always seek the path of greater benefit, or least harm, in these cases, the court decides that the service provider has objectively justified that they have had a legitimate aim and have acted with proportional means when excluding transsexual people from the service. The service provider will actually increase the chances of getting that judgement if they can show that they've done everything they can to lay on alternative provision for the transsexual women (e.g. a group counselling session for the same purpose, but is specifically setup for transsexual women and non-transsexual women who are comfortable being in the same group.)
Now, it's really important to note, this isn't a numbers game. The court won't go, 'Here there are 1, 2, 3, 4, 5 women affected,, 1 transsexual woman affected, therefore the transsexual woman can be legally discriminated against.' Just as importantly, it isn't a mathematical equation. Just because any individual woman and any individual transsexual woman would experience the same level of harm in being unable to access the service it doesn't make the harm cancel out for the purposes of the consideration. Everything relevant to the scenario must be taken into account.
So to transfer it across as a comparison: look at just how much the scales must tip to be able to objectively justify causing the harm that is solely experienced as the result of discrimination when the discrimination is crossing across protected characteristics. If the discrimination is occurring within a protected characteristic (discriminating against men in favour of women by setting up a group counselling session for female victims of sexual assault) the point at which it becomes objectively justifiable is lower. But because the entire purpose of EA2010 is to forbid unlawful discrimination, and the Act specifically prohibits the use of legal discrimination within one protected characteristic as a justification for discrimination against a different protected characteristic the point at which it becomes objectively justifiable to legally justify expanding that discrimination so it discriminates against multiple protected characteristics is set very high within the example given.
And I'm sorry, I'm going to have to call it a day. My brain is now refusing to cooperate, and I had to retype that last paragraph quite a few times. It kept on going in circles.
Hope this helps answer your questions.