This advice isn't right from Stonewall, is it?

Speedy85 we are not going to know for sure until there are more cases in the higher courts.

I am not persuaded by Green. It is only High Court, a very specific context and not fully reasoned.

It is my view the courts will continue to reserve the rights to deal with these issues on a case by case basis.

• It is a difficult area to be prescriptive without risking perverse outcomes.

• It would be strange if the courts treated the passing of the GRA as removing rights that transgender people previously enjoyed.

• The EA is backstopped by the EU Equal Rights Directive. And in the pensions cases, the EU courts have not been too bothered by a lack of GRC. Having said that we are told the EU's jurisdiction is going to end in 18 months so this may be less of an issue in the future.

Croft was decided before the Gender Recognition Act became law.

I think that's the problem though. There is some stuff in Croft that is still persuasive, but at the time there was only the Sex Duscrimination Act 1974 containing the anti-trans duscrimination provisions and nothing in law saying at what point someone should start being treated as a woman. Now there is - the GRC.

I do think the creation of the GRC helps clarify the comparator issue as in the Green case. Before getting a GRC, transwomen are treated as a man who might need special treatment. It might be unfair to make them use the men's bathrooms/showers because they have rejected that identity, but nor does it mean that they have a right to use the women's ones until they officially become a woman.

Thank you.

Might be that if self ID comes in they sensibly retain the current stricter requirements to apply for an altered birth certificate. Thus needing medical support for that.

Depends how they word the act if it ever gets to that point. As if self ID = total legal status of new gender then a birth certificate change might have to occur.

Though a birth certificate specifically states sex and is I think the only place legally where that changes on documents?

Might be wrong.

Which is why self id is dangerous for transsexuals

I believe the answer is contained in the Court of Appeal case of Croft v Royal Mail www.bailii.org/ew/cases/EWCA/Civ/2003/1045.html. Although this is a pre Equality Act case and in the context of employment, I believe it is still good law, not least because it is referenced in the case of Green, R (on the application of) v Secretary of State for Justice [2013] EWHC 3491 (Admin) mentioned by @Speedy85.

Sarah Croft was legally male in the process of transitioning. Her then employees, the Royal Mail, insisted that she used the disabled toilet. She brought a case for discrimination under the Sex Discrimination Act.

LJ Pill found that whether a legally male transwomen was entitle to use the female toilets depended on "all the circumstances" including the stage reached in the treatment and the employees own presentation.

LJ Parker explicitly rejected the notion that the comparators were male employees and instead stated the comparators were both male and female employees who weren't transsexuals.

Croft was decided before the Gender Recognition Act became law. The evidential requirements for a GRA are so high (2 years RLE, medical reports, statutory declarations etc.) that I am sure that following Croft, for any transwoman with a GRC the comparators would be non-transgender women - regardless of the legal status the GRC confers.

On the other hand, should obtaining a GRC become as simple as filling in a web form (note this is never going to happen whatever David Davies may think), I am sure the courts will have no difficulty in using Croft to ignore the legal gender of the applicant.

Returning to the OP question. I believe that the advice from Stonewall is broadly correct. However, in the case of a communal changing room and a pre-op transwomen, I would expect the exceptions to the Equality Act to apply. I would also expect a transwomen at the start of her transition (i.e. looking very male) to not be protected either under the logic in Croft or under the exceptions. In Stonewall's defence they do refer to the exceptions at the bottom of the web page.

Thanks to pp for explanations! Trying to process, but I'm still not totally clear (i.e. the legal situation).

At the moment, though, trans rights seem to be getting prioritised over women's rights (e.g. see Girl Guides, Swim England, some schools policies, etc). but the underlying legislature is woolly and vague. And therefore frustrating, to me.

So - here, we have two laws - the Gender Recognition Act 2004, and the Equality Act 2010; both have been written in such woolly terms, that lawyers (and non-lawyers) could be argue back and forth eternally, and this is what is happening, at the moment.

Thanks for the case law tip Speedy I’ll print it when I get home.

For me this shows how important self id could become in prison particularly as prisons will be exposed to direct discrimination claims

Been reading this debate with interest. Not sure I can add anything constructive but can answer an earlier question.

I have had a Gender Recognition Certificate since they were introduced in 2004. At no point since then have I ever had to produce it for any specific purpose.

I also have an amended copy birth certificate and have only once used that, voluntarily, as proof of age to get a bus pass.

The birth certificate is a copy for such day to day use. The unaltered original is not destroyed.

I think we'll have to agree to disagree

No, please don't - this feels like it's potentially more important than all of the self-ID stuff and I don't know how people (myself included) can form an opinion for the purpose of the GRA consultation if they don't understand how the GRA is currently applied.

I don't know whether this was deliberate on the part of the legislators but the law seems very hard to follow in this area (and I say that as a lawyer) and there seems to be a lot of misinformation out there (and on MN) around it, which is not doing anyone any favours.

I'm also going to say, that the ONLY way out of this mess is to create a watertight legal category for SEX which can neither be 'identified' into nor out of.

The law had little trouble establishing which sex was which when the vote was being denied.

You know, you think that those who write the law might be able to clearly outline terms.

Imagine writing a law relating to sex and gender and identity and reality and then allowing a complete mess to result by NOT DEFINING TERMS ACCURATELY.

Don't lawmakers have an obligation to truthfully reflect reality?

What is their definition of
SEX
GENDER
IDENTITY
FEMALE

anyone know?
There should be no concept of 'trans' 'sexual' in law. Its a fiction.
The law has granted that two disparate groups of people be in a constant conflict over a single identity.

HaruNoSakura These are technical matters and providing a simple but incorrect analysis does not help anyone.

As I say, it doesn't matter that the case was in the context of a prison. The point is that you need to find someone to compare the trans woman's treatment to in order to show discrimination. In the case of a transwoman with a GRC using a shop, the comparison is female shoppers. In the case of a transwoman without a GRC, it is male shoppers. The Equality Act 2010 does not give transwomen without a GRC the right to complain that they have not been treated in the same way as women. It is through obtaining a GRC in accordance with the Gender Recognition Act 2004 which grants transwomen the right to be treated as a woman in most circumstances. The protections prior to that point are more limited and IMO could include use of a gender neutral private space.

As I've said, we'll have to agree to disagree.

@Speedy85

The case you've cited. It's a prison case. You should know that there is as wide a gulf as it's possible to get when consideration is being made of what is objectively justifiable between the consideration of what is an objectively justifiable exemption being applied in a prison setting and the same exemption in a high street setting. The scenarios are so utterly different, I'm struggling to see any points of comparison a judge would use when making consideration as to whether an exemption would be lawful in a high street scenario.

No, my approach isn't simplistic, as it takes into account Chapter 5 of the Code, as does the EHRC when it approaches ss13.57 - 13.60. 13.60 specifically references the beginning of the chapter, as the beginning of the chapter deals with when exceptions can be applied, what the test is and, very importantly, linking back to 5.25 - 5.36, which deals with "When can a provision, criterion or practice be objectively justified?" in the section specifically reserved for, yep, you guessed it, Indirect Discrimination. To make it easier for service-providers to understand the law and follow the guidance the EHRC has already incorporated the work of taking into account Indirect Discrimination as it relates to when it is lawful or unlawful to exclude anybody from a service based on a protected characteristic.

As for referencing a breach of ss7 and 11, you should be able to work out that's shorthand so that everybody else reading this thread who doesn't have a legal background know which protected characteristic is being discussed for whichever act of unlawful discrimination is under discussion. This isn't the legal board. Making the discussion too technical only seeks to drive people away from the discussion.

Sorry for the typo - the post should have said that the context does not change the way that discrimination is judged by the courts (ie through the use of an appropriate comparator).

@Elletorro you may be interested in that case. I'll continue to look for the other one that I have seen (I'm pretty sure I didn't imagine it...).

Aha! This wasn't the case that I was looking for (I'll continue to look for that) but I think it proves my point in respect of comparators for discrimination claims. It's in a very different context, but that the context does not change the way that discrimination is judged by the courts.

www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

68. Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.

69. A male prisoner (who wishes to remain male as most do) does not need to express his gender identity in any purposeful way. He does so innately through the male clothes he wears and certainly does so via prison clothing. Transsexual prisoners are treated differently (and wish to be so) and as such have a number of advantages in terms of clothing and lifestyle not available to the remainder of the male prison population absent privileges.

70. I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner – indeed the reverse. Consequently, the second question I posed does not arise.

HaruNoSakura I think we'll have to agree to disagree. I think your approach is incorrect and too simplistic, ignoring the mechanism for indirect discrimination claims. Whilst in disability claims it is possible to rely on s15 to avoid the need for a comparator, the same is not true for the other protected characteristics.

I think that it is also not right to refer to breaches of ss7 and 11. They are the protected characteristics and it is not possible to breach them.

The parts of the Act which can be breached are the sections which prohibit different kinds of discrimination in different contexts (eg s29(2) which prohibits direct and indirect discriminatio on the grounds of gender reassignment in the case of services). In the case of indirect discrimination it's vital to identify the correct comparator which is where the GRC comes into play as explained.

But I realise you're specifically talking about the legal aspect so that's probably not all that relevant.

If a pool said that they had decided to make changing rooms for people who were only for male or female and they decided to say that there was a legitimate aim, would there be discrimination for someone with a GRC if no alternate changing rooms were provided?

Would that ever happen? I suspect most pools will have mixed family changing facilities (or they should) for reasons of inclusion: my daughter has autism. Without a family changing room her father wouldn't be able to take her swimming. I'd be surprised if there were many pools (or indeed any) without some sort of gender neutral provision.

@Speedy85

No. Where the Codes specifically cover gender reassignment they cover gender reassignment solely under s7 Equality Act 2010. It makes no difference where the person covered by the codes has a GRC or not. Those sections of the Codes are not dealing with s11 characteristics, which are covered elsewhere. It's really important to know this because this is part of the determining factor in deciding if any act of discrimination is a s7 breach, or a s11 breach, or a breach of both.

It should also be noted that Education and Service Provision are covered by separate sections of the Act. As a result, if you read through Services, public functions and associations Statutory Code of Practice you will note that the Codes specifically mention that they don't cover a large swathe of the Equality Act as it relates to education. As a result, any conclusion drawn from guidance issued to schools won't apply to the guidance issued in the Services, public functions and associations Statutory Code of Practice where the Code offers guidance otherwise.

Section 13.9 (which is the section used in tertiary guidance stating that challenging somebody's use of facilities should be done with care). There's a classic mistake to make here. When following statutory codes issued by EHRC care must be given to what is written, and never to what is not written. At no point in the Code does it state that if 13.9 doesn't apply then a transsexual person should not be treated as as their acquired gender, and care should always be given to ensure that store policies reflect this. Requiring a person with a s7 characteristic to use a third option instead of the option matching their acquired gender would still amount to discrimination as discrimination occurs at the point when that person is barred from accessing the service of their acquired gender. Indeed, in this situation that person is still covered by sections 13.6, 13.57, and 13.58 of the Code.

i.e. "Where an exception permits discrimination in relation to one protected characteristic, service providers, persons exercising public functions and associations must ensure that they do not discriminate in relation to any of the other protected characteristics" and "If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present", and that "The intention is to ensure that the transsexual person is treated in a way that best meets their needs". As I mentioned in my reply above, if a service provider is found to have acted lawfully in regards to a SCH3 Part 7 s28 Equality 2010 exemption they are not required to provide a third space, and if they have not acted lawfully in regards to the same, then forcing a person with s7 protection to use facilities that does not match their acquired gender amounts to unlawful discrimination under the Act.

Likewise, as mentioned previously in this thread, there is already case law in this regard to the provisioning of seperate-sex services in the context of of a high-street style environment. The case hinged on the fact that the claimant had been barred from accessing the facilities designated for use by women, and the judgement ruled in favour of the claimant.

And again, I'll point out that because of the OPs first post, I'm talking about the provisioning of separate- and single- sex services in a high street style environment and how this relates to the Equality Act 2010.

Im just gonna lurk as i work in a dress shop

We do have a few trans customers but to my knowledge they have never asked to use the changing rooms (lodas of our customers dont to be fair)

They are rubbish changing rooms for security and privacy, i have asked a man to come out of them as he was talking to his wife...another was 'allowed' to stay as his wife is disabled

One lady was unable to come out on to the main floor to look in the better mirrors if there was a man out there...one of us had to stay lookout