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Feminism: Sex and gender discussions

‘No suggestion of amending the Equality Act’

38 replies

Thelastempressofconstantinople · 06/07/2018 22:59

I’ve just been looking at the consultation documentation. One of the things that struck me about it is the repeated ‘reassurance’ that there is no intention of amending the Equality Act exemptions.

Er, isn’t this completely disingenuous and misleading? So misleading that it suggests whoever framed the consultation had a very poor grasp of the legal issues?

At the moment the Equality Act exemptions effectively permit the exclusion of transwomen from certain female only spaces and services if certain (fairly demanding) tests are met. Unless these tests are met, transwomen (but not men) have to be admitted.

But at the moment the transwomen who benefit from this have a GRC. The effect of the change to self id is that a far wider range of transwomen (self identified) will have to be admitted to female only spaces and activities unless the tests for exclusions in the Equality Act are met.

Presumably this effect could be avoided by doing exactly what the consultation boasts won’t be done - amending the Equality Act to provide for a far wider range of circumstances in which transwomen may be excluded from female only spaces and activities.

If the sole intention behind amending the GRA really was to ease the ‘bureaucratic’ process of applying for a GRC, why wouldn’t this corresponding amendment be made to the Equality Act? After all, if the concern really was just bureaucracy, that would deal with the problem, wouldn’t it? Protect women and single sex spaces while assisting transpeople by permitting self id?

It seems that (a) whoever issued the consultation hasn’t understood how the Equality Act and the GRA fit together and (b) that what is driving this isn’t just a wish to avoid bureaucracy, expense, etc- but a wish to invade women’s spaces.

Why not deal with this by amending the Equalities Act too? What is the excuse given in the consultation for not doing this? Have I missed it?

OP posts:
Imnobody4 · 07/07/2018 19:56

Ok -in the past I've gone on walking holidays with an all women group. Usually I book a single room but have shared with stranger in the past. It's a small group of about 12. So how would that organisation know if a transwoman is booking in the first place. Would they be able to ask for proof from everyone booking? How do I prove I am not a transwoman if all documents are changed. Could I find myself sharing with a transwoman without my consent. Mind exploding again.

Thelastempressofconstantinople · 07/07/2018 07:18

What I am taking from this is that we need to go back to analyse the wording of the legislation itself in detail, specifically the EA. Guidance is too variable and unclear. OldCrone is right, though: there is considerable diffference between normally being treated as female, unless good reason otherwise (non GRC) and necessarily being treated as female for all purposes (GRC).

OP posts:
OldCrone · 07/07/2018 01:33

Your post makes no sense, Sarah. Have some sleep and try again in the morning.

Ereshkigal · 07/07/2018 01:28

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so

Where someone has a gender recognition certificate they should be treated in their
acquired gender for all purposes and therefore should not be excluded from single sex services

You're contradicting yourself. Those two statements suggest the higher bar of having a GRC.

SarahAr · 07/07/2018 01:24

@OldCrone

The statutory guidance from EHRC, which courts need to follow unless they have very good reason not to, states:

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.
However, the Act does permit the service provider to provide a different
service or exclude a person from the service who is proposing to undergo, is
undergoing or who has undergone gender reassignment. This will only be
lawful where the exclusion is a proportionate means of achieving a legitimate.

So this is the starting position. Trans people have to be treated in the gender role in which they present in the case of single sex services unless they fit into the exemptions.

The code then goes on to say

^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.

This is then a warning that in this case a trans person is unlikely to fit into an exemption. The "visually and for all practical purposes" comes from case law. It was the standard the courts applied to defacto recognition of the new gender prior to the GRA.

The quotes that @OldCrone come from general guidance (which does not need to be followed by the courts).

The entire section is

Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the physical sex they were born with), as it is unlawful to discriminate against someone because of gender reassignment. Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so.

^A business may have a policy about providing its service to transsexual users, but this
policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.^

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so

^Where someone has a gender recognition certificate they should be treated in their
acquired gender for all purposes and therefore should not be excluded from single sex
services.^

It is clear in this non-statutory guidance that the "visual and practical purposes" test and the GRC are warns about the exemptions in the EA.

So trans people do have the right to use single sex spaces (in effect sue under the EA for discrimination) without a GRC or meeting the "visual and practical purposes" test.

Ereshkigal · 07/07/2018 00:58

Why do you think they spell out that it's possible to exclude biological males "even with a GRC" from becoming rape counsellors of females where a single sex service was desired?

Ereshkigal · 07/07/2018 00:56

There is nothing in statute law or case law to suggest that the legal effect of having a GRC sets a higher bar.

There is very little in case law full stop. But although neither surgery nor a GRC are required for males to access women's spaces, the feeling from both transactivists and feminist law experts I've spoken is that both would strengthen a case against discrimination.

SarahAr · 07/07/2018 00:52

For many reasons, not least because excluding a GRC holder under the EA exemptions is a higher bar

Today any woman with a GRC had a diagnosis of gender dysphoria, has lived in "role" for two years or longer, has provide a legal panel with details of their medical transition, and where there has not been GRS has provide a good explanation, and has convinced a legal panel that they intend to live as a woman for the rest of their lives. The strict requirements to obtains a GRC sets the higher bar.

There is nothing in statute law or case law to suggest that the legal effect of having a GRC sets a higher bar.

OldCrone · 07/07/2018 00:52

Transwomen benefit from the right to access female only spaces if they have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment.

That's not really how the Equality Act is supposed to work, though, is it? Transwomen and transmen have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment. This means that they can't be discriminated against for being transgender, not that they have the right to use spaces designed for the opposite sex.

They only have the right to use spaces for their acquired "gender" if they are indistinguishable from a person with that "gender", or if they have a GRC.

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.

Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services.

www.equalityhumanrights.com/sites/default/files/what_equality_law_means_for_your_business.pdf

Of course, people spouting the same misinformation as Sarah have been persuading businesses that they can't exclude anyone who claims to be trans, whether or not they have a GRC.

This is what will change with the proposed changes to the GRA - there is a much higher bar to exclusion of people with a GRC compared to those without.

Ereshkigal · 07/07/2018 00:42

Therefore, the GRA reforms have no impact on the Equality Act or whether transwomen can access female spaces.

They do. For many reasons, not least because excluding a GRC holder under the EA exemptions is a higher bar.

SarahAr · 07/07/2018 00:33

Transwomen benefit from the right to access female only spaces if they have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment. They do not need a GRC to get this protection.

Therefore, the GRA reforms have no impact on the Equality Act or whether transwomen can access female spaces.

Therefore the consultation document is correct. This is not surprising as the government's legal advisers will have helped prepare it.

Offred · 06/07/2018 23:48

Obviously it is possible they are just not very bright but I never assume that about any government even if the individual politicians may seem to be...

Offred · 06/07/2018 23:45

IMO they have understood it and the Tories are in this to erode and eventually dismantle discrimination laws.

This provides them with an opportunity to weaken all discrimination laws that are rooted in sex (women, trans, homosexuals) whilst looking ‘socially liberal’ which they hope will get them votes from disillusioned centrists.

They are doing what politicians do and using weasel words so that no-one catches on.

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