Please or to access all these features

Feminism: Sex and gender discussions

Victoria Derbyshire today and Girlguides

608 replies

AgnesBadenPowell · 05/03/2018 19:29

Did anyone see Victoria Derbyshire on BBC2 this morning? Interesting discussion about transgender people and self ID. One of the speakers mentioned Girlguiding, which caught my attention as I am a Leader and I’ve had similar concerns but few people to discuss it with IRL.

You might have seen the press coverage (and threads here) about the changes to Girlguiding UK’s policy on inclusivity for transgender members

As a leader it’s my duty to implement the policy. I also have a duty of care to the girls in my unit. I’ve thought long and hard about this and in my view, GG has got it wrong.

GGUK recognises gender self identity, which is “a person’s inner sense of being a girl or a woman”. A male child who identifies as a girl can enroll as a rainbow, brownie, guide or ranger and a male who identifies as a woman can make the Guide promise and become a leader. Leadership roles have historically been women only (although men can volunteer for support roles that don’t need the promise and aren’t in charge of units).

The policy states that transgender children should use the accommodation of their acquired gender on camp. Parents of other children should not be informed - leaders are told it is neither required or best practice. Remember that Guiding also permits adult leaders (including men who identify as women) to share accommodation with children; it’s not the preferred option and at least 2 adults should always be present in the tent or guide hut but it does happen.

I have written to GGUK to outline my concerns:

  1. the policy allows, for example, a 14 yo biological male Guide to share sleeping accommodation with a 10 year old female Guide.NSPCC advice is that children over 10 do not share a bedroom with the opposite sex. It’s not unreasonable for parents to expect GG to follow this advice. Why aren’t we?
  1. The policy does not acknowledge the embarrassment a teen may feel when dealing with periods, washing and bathing in shared facilities with a person they may have known as a boy.
  1. The policy is focused on the needs of the transchild and their preferences. As a Leader I have a duty to all children in my care and must balance each of their needs. Only in reference to changing clothes does the policy state that all children should be offered a more private place to change if desired, otherwise transchildren chose what facilities they use with no reference to their fellow guides.
  1. If GG cannot guarantee truly single sex accommodation then some girls will miss out on residentials, eg girls from certain religious groups, those who have been subjected to abuse or who just don’t want to. This is against GG’s inclusive ethos

So far GG has responded with (template?) emails to say that GG has always been a single gender organisation, gender identity (as defined above) is recognised as separate from biological sex and Leaders should refer concerned parents to the higher ups.

Today’s TV show made me wonder how many people really understand the implications of the policy and have similar concerns. Leaders can't discuss other children with parents (rightIy so) but that means parents can't give informed consent to their child sharing mixed sex facilities. I'd like to gauge the feeling of parents but it's a sensitive issue and not something that I can just ask my girls’ parents. Perhaps you think I am over reacting. Perhaps you share my concerns. Either way, I’d like to know.

Finally, I should add that I’m not trying to have transgirls removed from GG. Neither do I think all men/boys are potential sex offenders. But I do owe it to the parents and children in my care to have assessed all the risks thoroughly. My point is that this policy poses a risk, which doesn't appear to be recognised by GG and Leaders aren't being advised how to manage it.

I do have to pop out for a bit now but will come back later, if anyone replies!

OP posts:
Thread gallery
19
Elletorro · 11/03/2018 12:33

Hi ofclocks

I am not interested in launching an attack on trans kids.

I am interested in ensuring that GG’s policies aren’t discriminatory ( for example kicking girls out because they are transitioning to boys)

I am interested in ensuring safeguarding is fit for purpose and that sex based protections are invoked.

I am interested in ensuring that there is no under the radar indirect discrimination against girls.

None of that is anti transgender

Italiangreyhound · 11/03/2018 12:27

@ofclocksandkings "Girlguiding would be a great place to support a young person while they are having this tough time."

Except if that person is female and is identifying as a boy they would be encouraged to leave, so not so supportive.

" I do not believe that an adult or young person would go through the motions of transitioning mtf in order to specifically abuse girls. This is a costly exercise (both financially and emotionally) and unfortunately if someone wants to abuse or assault a child then there are easier ways for them to do this." There is no requirement to 'do' anything under these new guidelines, just to identify as a girl or a women.

I would welcome a trans girl (or trans woman leader) into my unit, and, knowing my girls, they would do exactly the same." I am guessing the girls in your unit would be given no choice in this. You have decided this doesn't matter to you, as an adult, and the girls in the unit are expected to follow suit. If they don't want to I am guessing they would be viewed as bigoted. So what is happening is a gaslighting of young girls so that they cannot say they are uncomfortable with having a biological male in their tent. In an organisation set up to support girls you are now being asked to support people who identify as girls. If you cannot see how wrong this is then I find this deeply upsetting.

I completely think children identifying as trans girls should be supported but that doesn't mean that they need to sleep in tents with natal girls on overnight trips and everyone needs to act as if this is not at all a problem.

On school trips natal boys and girls do not share the same dorm rooms do they, there is a reason for this and it is not because people hate boys or demonize them.

I'm glad my daughter is not in Girl Guides anymore. It's not an organisation that cares about girls.

ofclocksandkings · 11/03/2018 12:10

As a member of Girlguiding I find it deeply upsetting that this is your take. I've been involved since I was a Rainbow, and guiding has been a source of comfort, familiarity and a place where I've always felt welcomed, cared for and safe. I can't know what it would feel like to be trans, but if I can only imagine that the decision to transition is not an easy one, and Girlguiding would be a great place to support a young person while they are having this tough time.

Yes, some young people abuse and assault other young people and that is unacceptable. But there is no data to suggest that trans young people are more likely to do this than non trans young people. In fact, there is data that trans young people are more likely to be the victim of abuse and assault, so again, it would be ideal if Girlguiding could be there to support them and have a place where they feel safe. I do not believe that an adult or young person would go through the motions of transitioning mtf in order to specifically abuse girls. This is a costly exercise (both financially and emotionally) and unfortunately if someone wants to abuse or assault a child then there are easier ways for them to do this.

The benefit of guiding to a trans young person could be incredible, and as someone who has made a promise to do her best to help other people, I would welcome a trans girl (or trans woman leader) into my unit, and, knowing my girls, they would do exactly the same.

GirlScout72 · 11/03/2018 09:54

Datun

Don't get me started on Mermaids! Did you see in the Sunday Times this morning that a concerned mother was questioned under caution and told if she left the country she'd get arrested for stating her opinions on social media about Mermaids?! The world has gone mad.

When you join it all up with what we've been discussing here, and what is in the public domain about that charity and it's founder, people have every right to be deeply concerned.

Even the doctor they recommend (to circumvent the watchful waiting recommended by Tavistock) got suspended by the GMC.

WHO are these people and WHY are they so interested in other people's kids????

Datun · 11/03/2018 09:21

Mermaids are one of the pressure groups who are training people like the guides, the NSPCC, all schools, companies, organisations, etc.

This is what they want children to think (screenshot).

The guides are an organisation who explicitly try to dismantle the gender stereotypes expected of girls.

But the 'guidance' they are receiving reinforces it.

This ridiculous 'gender spectrum', claims that femininity is solely in the province of females and masculinity solely in the province of males.

It doesn't even try to make the people neutral. It says girls things are for girls and boys things are for boys. If you want to step outside that box, you might want to question your sex because you could be trans.

Unbelievably regressive and incredibly damaging. I can't think of any other ideology where the end result is absence of sexual function, permanent sterility, prepubescent genitals for the rest of your life or, alternatively, irreversible genital surgery.

This should remain well and truly within the medical profession. This is not a bloody lifestyle choice, or something that should be taught, actually taught, in schools.

With kids being invited to express their interests and then labelled and categorised on that basis.

What preferences are female preferences or male preferences? When you start to list them, you see how ridiculous they actually are.

Baking? Is that male or female? Is it that women bake cakes, but men become world-famous pastry chefs?

Sewing? Is it that women sew on buttons and darn socks but men become tailors in Savile Row?

When you actually start to think about what they are saying, it makes no sense. (Apart from the framework around which women generally come off second-best).

Victoria Derbyshire today and Girlguides
GirlScout72 · 11/03/2018 09:19

So, what can you do? As Datun said:

  • Write to GGA and tell them to keep it female only, tell them you are OFFENDED
  • Write to your MP
  • Talk to your friends
  • Start following groups and websites like Woman's Place UK and the Fair Play for Women website for calls to action
  • COMPLAIN - I've just seen that Waitrose are doing gender neutral mother's day cards, that's only happened because transactivists have complained. NO ONE has ever doubted if their mother is FEMALE. We have one day for mothers, and now it's about men! Is that OK with you? If not write to Waitrose and tell them you are withdrawing your business.
  • Your local swimming baths gone gender neutral? Print off the FPFW exemptions fact sheet, and tell them you will not be back until they respect your privacy. Get a group of you together and make a noise.
  • ITV done a trans flagwaving documentary? Report them to Ofcom!
  • etc etc etc!

We've all got to ACT, we can sit here waffling and splitting hairs over obscure details, but look at Brexit, facts had very little to do with that, what did it was OPINION. That's what we need to change. Just so happens that we're right too :-)

GirlScout72 · 11/03/2018 08:56

Hey

No you are absolutely NOT needlessly worrying, Datun has it completely correct, we need to keep shouting, but we do currently have in law things to our advantage - lawful exemptions. Posting reams of legalese here just makes this thread unreadable and as Datun says, in any case, if the law is unfair, we get it changed, we're feminists that is what we do.

There is no case law in this area, we are probably going to have to go to court around a test case eventually and point out the massive loop holes now being exploited by fetishists to disadvantage women AND the transsexuals the law was written for. GRA is bad law. You can try all day to make it make sense, it doesn't make sense, it's hastily written, ill thought out, bad law.

We need to get a grip on the discourse, there is absolutely no reason why transactivists should be in charge of the terms of this debate, which is why places like mumsnet are so important (and why I think posting reams of guidance and legal speak is a waste of time here, no one is going to read it, and it just scares people off).

What we need to do is let the world know that women are OFFENDED by this bullshit, how dare they say that a woman is just a man in a dress. Is a black person just a person with curly hair with boot polish on their face??? Of course not! That would be abject, disgusting RACISM. Why is it any different to be told that the criteria for being a woman is to be a sodding transvestite? How dare they? Is that OK with you? And is that OK for your daughter, that she's only a girl because she likes girly things? That's she only a woman by a set of criteria a bunch of men have gleaned from pornography? It's certainly not OK with me, I don't care what the law says!

The thing is PEOPLE DO NOT UNDERSTAND THIS, they think we mean harmless transsexuals who have had the chop. I have no problem with those people. But this is a men's sexual rights movement. We need to let people know. Once public opinion is on our side, once PEOPLE GET IT, then legal stuff will follow.

It was legal until 1991 for your husband to rape you. EVEN if you'd chucked him out, got a barring order, and begun divorce, he could find you and rape you and legally you had already consented by saying 'I do' in church! The ONLY reason that is illegal now is enough women said 'this is totally unacceptable and we are not keeping quiet'.

From that perspective, it doesn't really matter what the law says down in the small print, we need to win the argument, once we've done that, we'll get the laws we want - we are half the population, what they gonna do, say no? So as Datun said, it's vitally important to get women on board, get them to understand that this means a burly man in a dress getting dick tingles from doing your smear test, or flashing his dick in the changing rooms. NOT HAPPENING ON MY WATCH.

Datun · 11/03/2018 07:16

TheMonstrousRegiment

You're not needlessly worrying, no.

Have a quick read of the opening post on the link below. And you'll see why. We need to talk about this and broadcast the information far and wide. And, if that doesn't happen this is only going one way.

Because the law is open to interpretation, public opinion is everything. I can't stress that enough.

Ideally, public opinion will stop swinging in favour of disadvantaging women. But meanwhile we can try to squeeze as much benefit from the badly written, misused laws that are currently in place.

And if those laws aren't being fair, then we can lobby to get them changed. This is what feminists do.

It's what they've always done. Otherwise you wouldn't have maternity leave, breastfeeding protocols. Hell, you wouldn't have an education or a vote or a public toilet that has ladies written on it.

It's one thing to be aware of the law, analyse it, and decide that there is little wiggle room.

It's quite another to throw up your hands to say oh well, that's that then.

Women have had to fight tooth and nail for every single law that gives them equality.

And then fight extra hard for those laws that are only pertinent to them, based on their specific set of requirements.

It's no surprise that men aren't rushing around trying to find obscure bits of equality law to keep their toilets, locker rooms, kids' overnight accommodation as single sex. It doesn't occur to most men that laws, customs and protocols, are necessary for women and girls' safety, privacy and dignity.

It might if you repeatedly point it out. But you only have to take a look at the way the #metoo campaign was received by many men.

There was an awful lot of disbelief, minimisation, ridiculous complaints like, what! now you can't even flirt with a woman?! Despite that campaign running to 11 million posts in under 24 hours.

Unfortunately, women have to shout for 10 times as long and 10 times as loud, to get themselves heard.

It's fortunate that mumsnet is one of the only places on the Internet that has allowed them to have this voice.

And given there are 12 million unique users per month on mumsnet, that's a fairly loud voice.

Let's use it. Write to the girl guides, email them, contact your MP.

Don't stop talking.

www.mumsnet.com/Talk/womens_rights/3175666-Want-to-know-why-women-are-livid-trans-thread

TheMonstrousRegiment · 11/03/2018 01:53

@GirlScout72 Are we needlessly worrying then? I don't seem to see this working in practice, what am I missing? I am asking sincerely, I would love not to worry about all of this.

Elletorro · 10/03/2018 23:58

There’s absolutely no case law so everyone is reliant on the guidelines - which although they hold sway- are not the law.

This has to be challenged if possible because if we don’t then we sleep walk into a situation where there are no sex based rights.

If we lose in the courts then we know where we stand. But even losing may be useful because it will create precedent that gives nuance and an opportunity for the next challenge. And losing let’s us know where to focus our efforts in lobbying to get the law changed.

I think we need to take the long view and in the meantime hope to succeed in the first foray

GirlScout72 · 10/03/2018 23:41

I explained upthread. Same way we can. Exemptions.

TheMonstrousRegiment · 10/03/2018 23:21

*@GirlScout72 * Wait a sec! Is Eton really not accepting transmen? Do you have a link please?

I've heard that many of the men's clubs are denying them as well, and somehow this is all perfectly acceptable. WHY WHY WHY??

www.theguardian.com/world/2015/jul/06/garrick-club-votes-to-continue-with-ban-on-women-members

Yet all female spaces are being taken over by all and sundry, and women are nasty and exclusive if they dare speak upAngry

Does anyone know legally how the men's groups are able to get away with this ( and using banter and camaraderie as their excuse, yet safety for women is not an acceptable reason for separate spaces )?

PencilsInSpace · 10/03/2018 22:59

In all likelyhood, given the wording in the legislation, and the direction of travel indicated in the Stat. Code, priority would be given to "ensure that the transsexual person is treated in a way that best meets their needs"

That's interesting. So, in the case of a masculine presenting tw it's OK to ignore bits of the statutory code such as the bit that says service providers should 'treat transsexual people according to the gender role in which they present' and 'where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender'? And it's OK to instead read into the code things which aren't there such as that a trans person's stated belief about themself is what counts?

Given that there is no case law around this, what are you using to inform your interpretation?

PencilsInSpace · 10/03/2018 22:44

Haru -
Now, this is the part I could be completely wrong about, but I think that the example given might be the metric being used by EHCR to determine when it's objectively justifiable to discriminate against a transsexual person seeking to access a single-sex service, and if it is, not only does that explain part of the EHCR Statutory Code, it also means that the metric for being able to objectively justify a Sch.3, Part 7, s28 exemption is set fairly high.

Can you unpack this a bit please?

Which bit of the EHRC code does it explain and how?

In what way is the metric here set fairly high? Is it because either the women or the tw would be unable to attend, or is it more to do with the nature of the justification?

The example in the legislation is a counselling group for women who have been sexually assaulted. The example on this thread is a single sex org with a strong mission to give 'all girls across the UK to have the space and opportunities they need to thrive, grow and give back to their communities', and central to this is GG commitment to being single sex (until very recently when we were told 'we have always been at war with eurasia a single gender organisation').

What criteria could be used to compare these examples? Are the criteria objective or subjective?

Of course none of this is even touching yet on the way GG are organising residential trips, safeguarding and consent.

Which leads to the problem of when it is objectively justifiable to discriminate against a transsexual person who is seeking access to a single-sex service. There is a paucity of case law that can looked at to provide a metric that this can be based against.

This can change Smile A few strategic cases could bring the whole of this bullshit crashing to the ground.

Sorry for all the questions, you seem very knowledgeable so I'm picking your brains. Please do say if you've had enough.

Mouthtrousersafrocknowandthen · 10/03/2018 20:12

The idea that the state will withdraw from any control over registration of sex with the outcome being a need for any party wanting to exclude any person form anything because of their sex having to rely on the courts to decide.

This looks to me like it is the nonsense thinking behind self ID. This 2010 act has backed everyone into a corner.

The idea that organisations with little money need to protect themselves and service users from predatory or risky behaviours via a legal system on a case by case basis is a capitulation to a rapacious movement. This is so biased in favour of a minority and goes way beyond any reasonable definition of equality. The polices being implemented by organisations appear driven by legal risk avoidance, not protection or even fairness. The numbers of trans children are tiny and yet long held sex segregations have to be scrapped to avoid legal challenge to benefit this few, to the detriment of many. Even having to try to prove what the detriment is, is a massive imposition. And just gets cries of bigotry thrown at it in response.

HaruNoSakura · 10/03/2018 19:39

@HairyLittlePoet

"I'd like to ask whether it would ever be possible for laws to explicitly define sex and gender, male and female?"

More a question for the politicians really. From a practical, legal point of view all the following problems would need to be overcome before it would be possible:

• ensuring that the definitions could be successfully used with every previous piece of legislation passed by Parliament, and would merge seamlessly with them

• ensuring that the current integrity of existing case law is maintained

• ensuring that the definitions maintain compliance is kept with ECHR rulings

• and the difficulties ensuring that the new definitions wouldn't invalidate huge swathes of data currently being held or,

• ensuring that organisations or individuals don't use the new definitions to get around previously existing legislation

Even then it should be noted there's absolutely nothing stopping the following Parliament from repealing the legislation. I mean, if an incoming Government was ideologically committed to repealing the legislation and had the majority to do so there is no mechanism that could stop them.

HairyLittlePoet · 10/03/2018 18:57

There was absolutely no way I was ever going to successfully skin read all that. I'm going to have to return to it another time.

HaruNoSakura

I'd like to ask whether it would ever be possible for laws to explicitly define sex and gender, male and female?

(not that I think there could ever be a definition of gender that isn't embarrassing in it's tautological nature)

It is mindboggling that a legal situation exists that allows anybody to force their way legally into a category to which they objectively do not and can not ever belong.

I can only assume this situation came about because the difference between male and female is so self-evident that no-one thought it necessary to define it explicitly. Leaving it wide open to the abuse we now observe.

HaruNoSakura · 10/03/2018 18:34

@PencilsInSpace

"If a transwoman (no GRC) should be 'treated according to the gender role in which they present', and they present as completely masculine, how are they required to be treated in your interpretation?"

In all likelyhood, given the wording in the legislation, and the direction of travel indicated in the Stat. Code, priority would be given to "ensure that the transsexual person is treated in a way that best meets their needs" but if the person in question hasn't stated what their needs are, either through presentation or language, then the service provider wouldn't be guilty of discrimination because it wouldn't be reasonable for them to make the accommodation to meet those needs if they have no way of knowing about it. Of course, once they are made aware of it...

HaruNoSakura · 10/03/2018 18:23

@PencilsInSpace

So, beds are made, dinner's prepped.

13.3 & 13.4:

These set when exceptions to being forbidden to discriminate against somebody are allowed by law. Now, this isn't specifically about being able to exclude transgender people from single-sex services, but rather covers all services and all types of discrimination. So a service is allowed to discriminate against a part of a particular protected characteristic when the service can show it is "‘a proportionate means of achieving a legitimate aim’" (13.3) and must fulfil both conditions for that discrimination to be lawful (13.4).

e.g. A service can set itself up to only help people with disabilities provided that it meets the test set by the act.

So what is this test? Details are laid out 5.25 to 5.36, which is a fairly hefty piece of text (worth reading but too long to put in here), but the rough outline of which is that:

• Any service provider that seeks to discriminate against a person or group of people must justify that decision should it be challenged in court. It isn't enough to just say that you've met the test of it being a legitimate aim, and a proportionate means.

• Generalisations cannot be used to provide justification to discriminate.

• Increased cost, by itself, cannot be used as justification by a service provider to discriminate against any protected characteristic.

So now to the hefty legal bit.

• What is meant by 'legitimate aim'? 5.28 - 5.30 defines the concept of legitimate aim, and 5.30 especially is worth reading as it gives examples of what is considered to be a legitimate aim.

• What is meant by 'proportionate'? 5.31 - 5.35 sets this out, and again is worth a read, but I'll highlight 5.35 because it directly bears on the upcoming bit. 5.35 says that, "The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the objective justification must be."

• What mechanism is used to test that the justification offered does meet the criteria laid out in the Act allowing an exception to the requirement that the service provider is forbidden to discriminate against somebody who has a protected characteristic? The test used is known as the ‘objective justification’ test and a with most legal things, the two words have specific legal meanings. The justification part we've partially covered above, which leaves the word, 'objective'.

Subjective Tests and Objective Tests

From a legal point of view subjective tests are tests that look at the arguments from the viewpoint or viewpoints of the people involved. For instance, in cases where an allegation of assault has been made part of what goes towards determining whether the accused is guilty or not is if the person who was allegedly assaulted honestly felt or believed that the accused was about to attack them using unlawful violence. Here, with this part of the test, the only point of view that matters is the point of view of the person who was allegedly assaulted. Of course, it would be up to the Magistrate to determine if that belief was reasonable in the circumstances, but nonetheless, the test is still subjective. It is subject to the viewpoint of the individual involved.

Determining if something is subjective, rather than objective, can be done by asking if whatever is being examined is being judged by a personal viewpoint or opinion. So for instance, a piece of steak is cooked until it's pink in the middle but not bloody. For a person who has ordered their steak medium-rare, this steak is overcooked. For a person who has ordered their steak medium-well, this steak is undercooked. From a subjective point of view, the steak has been undercooked or overcooked based solely on the expectations and perception of the person being served.

So that then leaves what is legally meant by 'objective'. To continue the example above, when viewed from an objective point of view. The steak has been cooked and looks a certain way once it has been cooked. Whoever is judging whether the steak is overcooked or undercooked will look at the steak and compare it to a chart that states what a steak will look like when cooked to a certain point (rare, well-done, etc). Having made the comparison the person doing the judging comes to the conclusion that the steak has been cooked to the point that it can be described as 'medium'. The person doing the judging then looks at the order slip for the person who ordered the steak and sees that it was noted that the customer wanted the steak 'medium-rare'. The judge then checks the chart again and sees that 'medium' means that a steak has been cooked longer than a steak that's been cooked until it's 'medium-rare'. Therefore the steak is overcooked. And the same process would apply if the order slip stated that the customer ordered a 'medium well' steak, with the result that the judge would come to the conclusion that the steak was undercooked.

In the steak example the result, the judgement that is made, is the same regardless of which method is used, but the process to arrive at that judgement is utterly different in each case. In a subjective test only the viewpoint of the customer matters. In an objective test that viewpoint isn't considered. Instead all the factors involved are taken into account and then measured against a metric.

The same approach is true when courts examine something to determine if it's objectively justifiable. The court will examine everything relevant put forward in the arguments presented by both the claimant and defendant, weigh everything against each other when appropriate, and then make a judgement as to if something is objectively justifiable if it passes the metric set for that test.

So what's the metric used in these Equality Act 2010 cases? In most cases the metric is determined, in part, by previously existing case law. For instance, in disability discrimination cases and the requirements for employers to make reasonable adjustments to the workplace there is a sizeable body of law that can be used as a guide. Similar cases are looked at and reasonable adjustment is made based on the seriousness of the disadvantage caused by the discrimination.

Which leads to the problem of when it is objectively justifiable to discriminate against a transsexual person who is seeking access to a single-sex service. There is a paucity of case law that can looked at to provide a metric that this can be based against. However, the exemption that allows for a transsexual person to be discriminated against when seeking access to a single-sex service is found in Equality Act 2010 Schedule 3, Part 7, s28., and the explanatory notes included as part of the legislation (a way of legislators saying, "This is what we intended when wrote and voted on this part of the Bill") contains within it an example of when it is objectively justifiable to discriminate against a transsexual person who is seeking access to a single-sex service.

Now, this is the part I could be completely wrong about, but I think that the example given might be the metric being used by EHCR to determine when it's objectively justifiable to discriminate against a transsexual person seeking to access a single-sex service, and if it is, not only does that explain part of the EHCR Statutory Code, it also means that the metric for being able to objectively justify a Sch.3, Part 7, s28 exemption is set fairly high.

HaruNoSakura · 10/03/2018 15:30

@PencilsInSpace

"Is there a difference between 'needs' and 'wants', legally speaking?"

As a quick insert, although I haven't checked for certain, if that were to be tested in court, the test would be subjective, so it would be determined by what the individual person believes they need at that time. They would be some limits placed on how reasonable that would be, but the limits would be very broad.

HaruNoSakura · 10/03/2018 15:26

@PencilsInSpace

Then there's the first line of 13.60, "As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances." There's two really important terms in there that have to be taken into account, "that the exception. . .must be applied as restrictively as possible", and that "the denial of a service to a transsexual person should only occur in exceptional circumstances". Both these terms have legal weight and meaning. As restrictively as possible means that the courts will thoroughly examine the scenario at hand to see if the exception of the the prohibition of discrimination has been as narrowly tied to that individual scenario as it's possible to be (if it hasn't then the discrimination will be ruled to be unlawful). ". . .should only occur in exceptional circumstances" means that the exception to the prohibition of discrimination, in other words, barring a transsexual person from accessing a single-sex service of their acquired gender, cannot be something that is done as standard or as an average across single-sex service providers, and cannot be used as the norm for providers of single-sex services.

Then there's the second sentence, "A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances." So here it's stating that should a service provider meet the stringent test set out through the example contained in the Equality Act 2010 legislation, allowing them to have an exception to the prohibition of discrimination, the resulting policy should still only be applied on a case-by-case basis.

And, of course, all of this has to be incorporated into everything that's contained at the beginning of Chapter 13.

So 13.1 just says there are exceptions built into the Equality Act 2010 that permits discrimination in the provision of services.

13.2 states what the basic intention of the Act is (discrimination against a person because of a protected characteristic is forbidden). This part sets out the widest scope of how the Equality Act 2010 should be interpreted. So in other words, if it can't be shown that it's lawful to discriminate against somebody with a protected characteristic, and discrimination has occurred, then this will be unlawful. It also sets out that where an exception does exist, it should, in general, be interpreted restrictively. See above for how courts look at and interpret the term, "restrictely".

I'll skip 13.3 and 13.4 in this post and put those in a separate one as that's really needs it's own segment.

13.5 We already know through a ton of other posts. It is not unlawful, provided you meet the test, to discriminate against one part of a protected characteristic if doing so allows a person or organisation to, " provide a better and more appropriate service to persons who share a protected characteristic..." e.g. It's not unlawful to provide single-sex services as long as the conditions for doing so are met.

13.6 states that even though an exception may allow discrimination in regards to one protected characteristic, the application of that exception cannot be used to discriminate against any of the other protected characteristics

(and even as I've typed that I've just realised how the EHCR has reached the determination that service providers must allow transsexuals access to the services corresponding to their acquired gender if that particular person wishes it, except in exceptional circumstances. Damn, that's obvious in hindsight).

So I need a break, and then I'll try and cover 13.3 and 13.4.

PencilsInSpace · 10/03/2018 15:19

As I've said elsewhere, courts will always take into account the intent of a statute when making a determination of what is and isn't illegal under the Equality Act 2010

I cannot imagine that the intent of the EA was the clusterfuck that is now upon us!

The intention is to ensure that the transsexual person is treated in a way that best meets their needs.

Is there a difference between 'needs' and 'wants', legally speaking?

Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user).

GG haven't done this. Nothing here justifies the way they have acted.

PencilsInSpace · 10/03/2018 15:04

Yeah sorry I didn't feel it necessary to C&P the entire document.

my interpretation of the legislation in an attempt to get it too match up with the Statutory Code, and how it matches up with other guidance issued by EHRC

Which other guidance are you looking at? I can't see where you are getting that someone with the PC of GR should also be considered as having the PC of (new) sex, even without a GRC.

If a transwoman (no GRC) should be 'treated according to the gender role in which they present', and they present as completely masculine, how are they required to be treated in your interpretation?

Heratnumber7 · 10/03/2018 14:43

I've been talking about this for ages.

The day I'm forced to take a bloke in a skirt to one of my Brownie sleepovers, and am unable to prevent him from sharing a room with the girls, where they sleep and get dressed, or the bathroom where they shower and wash, is the day I will leave Guiding.

PositivelyPERF · 10/03/2018 14:36

*Ofmen

An opportunity for women to raise their voices*

I’m just going to copy this from the other threads you’ve posted on.
No thanks. Any organisation/group that doesn’t recognise sex as a separate characteristic and calls women ‘cis’ can get stuffed.

Please create an account

To comment on this thread you need to create a Mumsnet account.

This thread is closed and is no longer accepting replies. Click here to start a new thread.