One of the main problems with the wording of the Equality Act is that it creates the requirement to show justification for discriminating against people with a particular characteristic. Section 27 to Schedule 3 of the Equality Act 2010 provides that discrimination on the basis of sex is not rendered unlawful if certain criteria are met. It states”
“27(1)A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if—
(a)any of the conditions in sub-paragraphs (2) to (7) is satisfied, and
(b)the limited provision is a proportionate means of achieving a legitimate aim.”
However, the wording of (b) creates two problems. Firstly, section 139 of the Act which places the burden of defending an accusation on the person or organisation alleged to have discriminated, and secondly by the constricted meanings of “limited”, “proportionate” and “legitimate”.
Take the example of an organisation that wants to provide group counselling for female victims of rape and they want to exclude men from the group. A man could invoke section 29 of the EA and complain that he has been discriminated against on the basis of his sex because although he is a victim of rape he has been refused permission to join the group. It would be for the organisation to prove in its defence that one of the relevant conditions is met, and also that the refusal to admit men is a “limited provision” which is a “proportionate means of achieving a legitimate aim.”
The organisation rely on sub-paragraph 6 to justify excluding men. This section provides:
“The condition is that—
(a)the service is provided for, or is likely to be used by, two or more persons at the same time, and
(b)the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”
It could easily be argued that it would prove an inhibition to the recovery of the women attending the counselling group to have to talk about their experiences in front of men and it was therefore reasonable for women to object to the presence of men. It would be easy to demonstrate that this was “limited”, “proportionate” and “legitimate”.
This exclusion would apply equally to men and to transwomen without a GRC, as the exclusion from the group would be solely for reason of their sex. However, if a transwoman had a GRC, then in law they would have to be treated as if their sex was female. It would not therefore be possible to exclude them from the group on the basis of their sex, as their sex would in law be female, just the same as the women to whom the group was aimed.
The organisation might therefore decide to exclude them from the group on the basis that they are transwomen. Again, this would be discriminatory, as gender reassignment is a protected characteristic. The organisation could then try to defend itself by relying on section 28 of Schedule 3, which provides:
“28(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.”
Again, although in theory the law provides that transwomen could be excluded from the group, in practice, this becomes tricky. The onus remains on the organisation to justify the discrimination as proportionate.
This is where the rhetoric of “transwomen are women” becomes problematic.
Firstly, as a matter of public policy and law, blanket policies treating whole classes of people the same are frequently difficult to justify. If you accept the fiction that transwomen are just the same as natal women (and biology is irrelevant in considering them to be women) then it becomes very difficult to accept that there should be a blanket policy of excluding them. After all, why would you have a blanket policy of excluding women from a service aimed at women? Positioning transwomen as poor victims who have been unfortunate enough to be born in the wrong body, but who just want to live a quiet life as a women further enhances the difficulty in justifying a blanket ban.
Secondly, we have seen the woman’s perspective repeatedly being disregarded and rejected. Why should a woman who sees a transwoman as male be given credit for her view? Surely she is just being bigoted and therefore her view is given little weight when proportionality is weighed. There is an institutional misogyny of downplaying the views and experiences of women when balancing competing interests. In order to start to redress this balance it has to be accepted that transwomen are not women. That they are distinct as a group and that they maintain many or most of the characteristics (physical and social) of men. This is completely counter to the position of Stonewall et al, which has become the predominant view.
So to go back to the question in the OP as to what difference introducing self-ID to the GRC would have in the operation of these two acts, we can see that there would be a much larger group of people (men) who could not be excluded merely because of their sex. The ephemeral qualities of “transwomen are women” would come into play and it would be much harder to exclude them on a blanket basis.
We can see that this has already played out to a significant degree, taking the situation in prisons as an example. Currently, the prison service is operating as if self-ID were already in operation. It is not imposing a blanket ban on the basis of biology, but is excluding or including transwomen into the female estate on a case by case basis. As we have seen in the case of Karen White, this opens the door wide to discretion being too generously applied and to the the wrong decision being made.