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

*peerages not peerags.

Urgh I wish we could edit!

yetanothertranswoman I'll try to summarise the law in case this makes it clearer:

The Gender Recognition Act 2004 provides for a process for people to obtain a GRC. It says that if you obtain a GRC you legally change sex. However, it also says that this is subject to other provision in the GRA 2004 or any other law (see s9(3) www.legislation.gov.uk/ukpga/2004/7/section/9). So this basically means that transwomen with GRCs are treated as women, except for where the law provides for them to be treated differently.

There are a number of situations in the Gender Recognition Act 2004 where it says it's OK to treat trans people differently, ranging from inheritance of peerags to government pensions.

Then you have the Equality Act 2010 which has a concept of a protected characteristic of gender reassignment for people who are planning to undergo, are undergoing or have undergone gender reassignment. It bans direct discrimination, indirect discrimination, harassment and victimisation on the basis of gender reassignment in certain contexts (eg employment, provision of services etc).

Direct discrimination is treating someone differently just because they have a protected characteristic - eg 'you can't shop here because you are transexual.' Direct discrimination can never normally be justified but in the case of gender reassignment there are some specific situations where the Act says it could potentially be justified such as in the provision of single sex services. It's still up to the service provider to prove that their discrimination is a proportionate means of achieving a legitimate aim if they want to do this - it's not a blanket exemption.

Indirect discrimination is doing something which appears neutral but negatively impacts a group with a protected characteristic more than others. Let me give an example from the employment context for the sake of simplicity, if an employer has a strict attendance policy with limited absesnces permitted this is likely to negatively affect people going through the process of gender reassignment as they are likely to need time off for surgery. As I've said in my posts above, I think that there are some real nuances about how indirect discrimination applies to transpeople in the context of service and my view is that it could be affected by whether they have a GRC or not, as for indirect discrimination you need a hypothetical person to act as a comparator to see whether transpeople are negatively affected worse. If you have a GRC then the comparator is straightforward (you compare your treatment to someone who was born the sex you acquired through obtaining a GRC), but if you don't have a GRC then it is more complicated. Indirect discrimination can always potentially be justified if the test mentioned above is satisfied (ie proportionate means of achieving a legitimate aim).

Then you also have harassment (there's a complicated definition of this but basically it would cover things like subjecting someone to verbal slurs) and victimisation which is treating someone badly because they have complained/brought a claim under the Equality Act (eg 'you are completely banned from being in this shop because you complained about the changing room policy and threatened to sue us').

I hope that's clearer. Not an easy area of law to get your head around IMO!

I've seen people say they've had gender reassignment surgery and it turned out they meant facial feminization surgery, which, um, what? None of these terms can be reliably interpreted to mean anything clear, which I suspect is not an accident - easier to push through the edge cases if the language is deliberately unclear.

Behold my complete lack of surprise that Stonewall may be deliberately misrepresenting what the law requires.

No. Because the Codes were written in specific reference to the Equality Act 2010, which does not require somebody to have a GRC to have the protected characteristic of Gender Reassignment. Interestingly enough, the Statutory Codes use the phrases "according to the gender role in which they present" and "acquired gender" synonymously and interchangeably within the same relevant segments when referring to anyone with a s7 characteristic. I just use "acquired gender" in my posts because it's a sum total of two words, as opposed to nine.

I disagree although it's possible we're talking at cross purposes. As my posts above indicate there are subtle differences in the application of the Equality Act depending on whether you have a GRC or not. Further, my view is that the majority of the references in the EHRC codes to transexuals are intended to refer to people who have been through the process and got a GRC (the Govt's expectation was originally that most trans people would do this). There are some references to treating people in the gender in which they present, which would have been intended to include those going through the process of living in the opposite gender prior to obtaining a GRC, but it's important to note those references are often qualified.

Let's take the service provision guidance as that is what the OP was asking about.
www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

13.57
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...

13.59
Service providers should be aware that 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, unless there are strong reasons to the contrary.

Points that I think are important to note are:

A) The paras above are written on the assumption that the service provider provides for both sexes with no gender neutral provision. It does not consider situations where there may be a gender neutral option in addition to single sex services. It's worth noting that eg the EHRC guidance for schools does approve of private gender neutral spaces being offered to trans pupils when changing for PE. So I wouldn't take the above paras as evidence that third spaces are never an option.

B) Whilst both of the above paras are framed in a positive way, the obvious implication from para 13.59 is that if a transwoman is clearly distinguishable from biological women then it may be appropriate to treat them differently. The obvious example as in my posts above is a transwoman who has not had surgery in a communal changing room. A more subtle example would be someone who looks very much like a man (eg because they are just beginning their transition) wanting to use the female changing rooms in a clothes shop. IMO, if there is a private gender neutral space it then it may not be a breach of the Act to ask them to use it.

As mentioned in my post above though, whilst I think the GRC could be relevant to whether a person is likely to be able to successfully sue a service provider if they have been excluded from a single sex space and offered a gender neutral space instead, in reality this probably won't inform any shops' transgender policies etc. because it isn't obvious who has a GRC and who does not. The guidance above does say that service providers can ask to see a birth certificate where they need to know someone's legal gender (para 2.27) but this obviously isn't something which people are going to ask to see in order to access the changing rooms at a clothes shop.

Speedy, I'm just trying to get my head around all this but I couldn't see any reference to needing a GRC to be protected in respect of gender reassignment under the equality act - I read it as saying that a person just needs to be living as another gender or proposing to do so to be protected. I can't see the GRC reference - where did you see that please?

This is not straightforward unfortunately but will do my best to explain my understanding:

1. If you are a transwoman with a GRC then your protected characteristic of sex under the Equality Act 2010 is female (by virtue of the Gender Recognition Act 2004) and you will also have the protected characteristic of gender reassignment. If you are being treated differently to other female people (ie biological women) then this would be either discrimination on the basis of the protected characteristic of gender reassignment. Such discrimination must be justified (eg relying on Sched 3, para 28 re: provision of single sex services) in order to be lawful.

1. In the case of a transwoman without a GRC, their protected characteristic of sex will continue to be male but they will have the protected characteristic of gender reassignment. Therefore, it is not as simple as showing that you are being treated differently from a biological woman in order to show discrimination. A biological woman is arguably not an appropriate comparator for indirect discrimination because they are different from the GRC-less transwoman both in terms of the protected characteristics of sex and gender reassignment. It's still important that people undergoing the gender reassignment process have access to services etc, but if these can be provided through the use of separate unisex facilities this will often be acceptable.

@Elletorro

The provisioning of a third space doesn't come into the equation. Either the service provider meets the qualifying threshold that allows a service provider to exclude a transsexual person from the service, in which case the service provider is under no legal requirement whatsoever to provide an alternate space for that transsexual person, or the service provider doesn't meet the test, in which case only offering the third space instead of the use of the single-sex service would be ruled unlawful. Note that this applies specifically to service providers, and because of the OP post, this response has been specifically tailored to high street type service providers.

@Speedy85

No. Because the Codes were written in specific reference to the Equality Act 2010, which does not require somebody to have a GRC to have the protected characteristic of Gender Reassignment. Interestingly enough, the Statutory Codes use the phrases "according to the gender role in which they present" and "acquired gender" synonymously and interchangeably within the same relevant segments when referring to anyone with a s7 characteristic. I just use "acquired gender" in my posts because it's a sum total of two words, as opposed to nine.

Speedy, I'm just trying to get my head around all this but I couldn't see any reference to needing a GRC to be protected in respect of gender reassignment under the equality act - I read it as saying that a person just needs to be living as another gender or proposing to do so to be protected. I can't see the GRC reference - where did you see that please?

HaruNoSakura the reference in the EHRC code to 'acquired gender' means the new gender that had been acquired through obtaining a GRC.

Whilst I agree that there are limited circumstances in which a transwoman who has a GRC can be lawfully treated differently from other women, that part of the guidance is not at all relevant in relation to people who have yet to obtain a GRC.

Haru

But the exemptions can be invoked if they are objectively justified and meet the test no? I’m not sure the relevance of the landlord case because I’m talking about providing a third space.

Also failure to address the issue of creating an unsafe space for women to my creates a detriment for women for which the service provider is liable

Hi Speedy

I don’t completely agree about completely enclosed changing spaces. my mother was a design manager and she has horror stories about how members of the public use completely enclosed lockable spaces. It’s not a great solution and often creates a more dangerous and unpredictable environment.

I’d be interested in knowing the case if you can dig it out?

@Elletorro

Not my logic. Just the legislation, the Statutory Codes issued by ERHC (which will be followed by the courts unless an obvious HRA1998 breach occurs, or if following the guidance laid out in the Codes would lead to a perverse outcome {incidentally, I can't think of a single instance when that's happened)), and existing case law.

We already know (there was a post on a thread I think about a year ago under FemChat) that there has already been a case in front of the courts where a landlord barred a transgender customer from using the toilets of their acquired gender, and the court ruled this was a breach of civil law as a result of an unlawful act of discrimination, not only by the landlord, but also by the owner/licensee of the pub. Here we have a case of a high-street style business, lawfully offering separate-sex facilities, barring a transgender person from accessing the facilities of their acquired gender, and being found to have acted unlawfully in doing so for the purposes of the Equality Act 2010. It's no stretch at all to say that exactly the same ruling would also apply to nearly every high-street style service provider.

My understanding is as follows. I'm just going to refer to transwomen in the following to keep things simple.

A) If it's a transwoman who has been through the full process of getting a GRC (although nb this does not necessarily mean that they will have had surgery), then they have legally become a woman in accordance with the Gender Recognition Act 2004. However, service providers can still rely on the exemptions in the Equality Act 2010 to refuse access to single sex spaces where doing so is objectively justified (the test for which is defined as a proportionate means of pursuing a legitimate aim). In the case of enclosed changing rooms in eg clothes shops which will often have staff nearby, IMO it wouldn't be justified to refuse to allow a transwoman with a GRC to use the women's changing rooms. In the case of a communal changing rooms eg at a gym/swimming pool where the transwoman has not had surgery, then IMO it could be justified to refuse access even if they have a GRC. Although the service provider would still need to see if there is some arrangement that they can come up with in order to minimise the affect on the transwoman (in order to show proportionality as part of their defence) - eg allow use of a private space if there is one or perhaps somehow arrange it so the changing rooms can be closed for 10 minutes whilst they change).

B) In the case of a person without a GRC, they legally retain their original sex. I vaguely recall there was a case a little while ago where some transwomen were refused access to single sex female spaces and there was no breach of the law (I can't recall the name of that case but I'll have to dig it up again and re-read at some point. I think the judge basically said something along the lines of just wanting to be a woman doesn't mean you are one). However, if there is a third unisex/private space that the transwoman wants to use then IMO they would be entitled to use that space (assuming there is no objective justification for refusing that request).

Having said the above, I can imagine that this would be an absolute nightmare for service providers to put into practice, and obviously if a transperson does try to bring a legal challenge then it will be costly to defend it even if the court ultimately decides that there is justification for their treatment. I can see why so many places are just having policies relying on self-ID as you cannot go around asking androgynous customers whether they have a GRC or not, and I imagine that if you tried to have a private conversation about whether they had surgery so you could assess what should be done re: use of changing facilities, it would be very easy to say something wrong and end up with a harassment claim.

I imagine that this wouldn't be a problem with what people refer to as "old school transexuals" as they would probably eg let the swimming pool staff know if they haven't had surgery so suitable arrangements can be made. But I don't know how this will work with the new breed of TRAs who don't think anyone should have a problem with "lady dicks" in women's communal changing rooms etc.

But Haru

Transgender protections extend to those contemplating transitioning. No proof required. By your logic they cannot be denied entry to their preferred changing room.

My understanding is that single sex exemptions can be extended to encompass exemptions of a transgender person. Yes it needs to be justifiable but the fact that women need reassurance that interlopers are barred from entry would strike me as a justification. In addition we have the target study which shows the need for single sex changing in order to prevent sexual assaults. Again justification.

Also section 29 says that service providers should not subject a person with protected characteristics (sex in this instance) to any detriment (subsection 2 c)

Detriment in my view is the exposure to voyeurism again evidenced by the Target study.

There are ways to provide a service to transgender people which do not negatively impact women. Third space.

Are you playing devils advocate here?

@OldCrone

No, no difference at all for the Gender Reassignment category. Sex as a category is trickier. The differences that we do know about as the result of court cases highlight narrow, technical differences (and these differences are getting narrower all the time). So say we take the example of when somebody can claim a state pension, there will be no difference between somebody with a GRC and without on (I think) the 6th May 2019.

HaruNoSakura I've read it very carefully, as have many others, and come to a different conclusion.

HaruNoSakura
Under the EA2010 is there any difference between the way someone is treated who has a GRC vs someone who does not?

A shop that refused changing facilities to a trans person on the basis of their identity would of course be breaking the law. But as long as they provided some facility for changing they wouldn't be. But that facility doesn't need to be the women's for a TIM.

@titchy

per the EHRC (emphasis mine):

Circumstances when being treated differently due to gender reassignment is lawful

• A service provider provides single-sex services. If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender. In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing or has undergone gender reassignment.

@ArcheryAnnie

The Equality Act 2010 can be confusing to navigate. Confuses the hell out of me and I'm used to working with the Disability sections of it.

In this case some confusion arises out of the fact that a service provider can show that it is objectively reasonable to provide a separate or single-sex service, but that justification isn't in itself enough to lawfully allow the service provider to stop somebody with the protected characteristic of Gender Reassignment of that acquired gender (transsexual in the terms of the Act) from using that service. To be able to lawfully exclude somebody who is transsexual the service provider must pass a second, more onerous, test to be able to objectively justify it.

So if you look at the link you've provided, pages 2 & 3 deal with what we are talking about. Page 2 deals with setting up a seperate/single-sex service, and the top of page 3 then deals with when a transsexual person maybe excluded from that service. If you look at the examples given for the second part, it's talking about rape and sexual assault group counselling sessions, and domestic violence organisations, a far cry from something like a high street chain dressing room or toilet.

TIM denied access to a toilet, police say there is no case to answer.

www.southwalesargus.co.uk/news/16113934.Trans_woman_wants_to_push_for_more_gender_neutral_toilets_in_Gwent/

No, it's unlawful in nearly all circumstances for high street-style businesses to not allow somebody with the protected characteristic of gender reassignment to use the facilities of their acquired gender.

With respect that is utter bollocks.