Hi, I'm trying to fill out the GRA consultation. I've looked at the fair play for women guidance, and at the GRA and EA. Despite over 20 years in law I'm struggling with this impenetrable legislation. So, here is a question for anyone familiar with the legislation.
Let's say Amber was born Steve, a man. Also, let's say self Id has triumphed. Amber does not have surgery or take hormones. But she lives as a woman, in that she calls herself Amber and sometimes wears skirts heels and make up. And she has a GRC. She goes to her local swimming pool, which astonishingly is run by feminists. Poor Amber is told to take her willy out of the ladies changing room. So, how does the law apply?
My reading of the EA and GRA is that paras 26 and 27 of schedule 3 to the EA have no role here. None at all. This is because Amber is female for their purposes, by virtue of section 9 of the GRA. But nor does para 28, because Amber does not come within section 7 of the EA - remember, no surgery, no hormones, all she's done is put on a skirt and some lippy (contrast the wording of section 7- 'a process for the purpose of reassigning sex by changing physiological or other attributes of sex'). So, the pool has no defence whatsoever. They can't rely on the 'proportionate means of achieving a legitimate aim' defence in the Schedule 3 exceptions because it is irrelevant. This is simply a case, for the purposes of the law, where a female (Amber) has been excluded from female facilities.
Is this right? If so I think this is an even worse outcome for women than that suggested by FPFW in their commentary on the consultation.
But, is there case law that would bring Amber within section 7? Is there anything to suggest this is the case?
Apologies if this is obvious.