Government advice on single-sex spaces.

*What happens if a man requests access to the service?

If he is refused access, he is being unlawfully discriminated against.*

Perhaps we need some men to sue for discrimination against exclusion from women’s hospital wards, sports etc ... Discrimination based on lack of gender identity...

Bit like the male Labour councillor who ID’d as a woman - but only on certain days - to point out this insanity.

The Equality Act allows exclusion only on the basis of protected characteristics. That is, if you wanted to offer a service for all people who are deaf and hearing impaired, you can lawfully exclude those who do not share the protected characteristic of disability. But you cannot exclude on the basis of sex, or age or religion.

Of course, the way we offer services are often more finetuned. So you could have a youth club for deaf and hearing impaired teenagers, which can lawfully exclude pre-teens and older adults, even if they are deaf or hearing impaired too.

What you can't do, is have a use case (here a youth club for deaf and hearing impaired, that generally excludes all who are neither deaf nor hearing impaired or teenagers and then lawfully include some who don't meet the inclusion criteria and lawfully exclude others. It's either one or the other.

Same with All Women Shortlists. They have a legal basis only for as long as they exclude other candidates on the basis of their male sex. That can be legal or biological sex, but it cannot be on the basis of gender reassignment. That is, identifying as the other sex is not enough to meet the criteria on which the exclusion of one's own sex is legally justified.

First, a provider has to have a reason to offer a single-sex service, facility or space. From this, the provider can exclude all members of the opposite sex if this is a reasonable means towards a legitimate aim. This includes all people of the opposite sex who identify as trans.

If the latter are legally of the opposite sex through a GRC, the provider can still exclude them. Most of the time, the reason why something is single-sex in the first place, is sufficient to justify their exclusion.

However, since the Equality Act was first enacted in 2010, providers, businesses and public bodies have been erroneously advised that they should not exclude people who identify as trans from opposite-sex provisions and must not exclude people who identify as trans and who have a GRC. This has shaped policies over the last decade, to our detriment, but that is not the law.

Which is what various campaigners have managed to get the EHRC to concede in a public statement made in 2018, but their erroneous advice remains in place. Hence Ann Sinnott is seeking a judicial review to compel the EHRC to issue not only correct guidance, but also inform all organisations and businesses publicly that they were wrongly advised by the EHRC.

Also, just to clarify any provider has the right to remove any person from their premises on grounds of that person violating the rules of conduct. This is regardless of sex, so a female person can be removed from a female-only service if she harasses other customers or damages the premises. The same goes for mixed-sex settings.

tl;dr: The sex-based exemptions apply regardless of behaviour. The sole deciding factor for exclusion is a person's sex (either biological or legal).

Stephen Whittle argues that the definition of 'sex' has changed with the GRA (at least I think that's what's being argued here).

That was always the intent.
I can't remember where I saw it, but someone in official capacity was arguing that the GRA isn't badly written because they had been assured by the drafters that the obfuscation and conflation of sex and gender was intentional (!), or words to that effect. I think it was someone in Scottish govt.

www.socresonline.org.uk/12/1/whittle/whittle.pdf

The government didn't choose to "falsify" the birth certificates.

I love the way you don't think it's falsifying a historical document. You can't change your biological sex. A legal fiction does not mean a person actually is the opposite sex.

The government didn't choose to "falsify" the birth certificates. They were compelled to by the European Court of Human Rights. The GRA was just window dressing. The birth certificate ruling can't be reversed.

You should try reading that ruling again. They were compelled to find a way for two people of the same sex to marry, and they chose to do this by providing a way for one of them to falsify their birth record rather than allow same sex marriage.

There was another issue about not being 'outed' but this could have been complied with by issuing a new NI number and equalising the pension age. There was no requirement in the ECtHR ruling which said that the UK had to allow people to have a way to falsify their birth certificates.

Since we now have same-sex marriage and equal pension age for men and women, there is no longer any reason for the GRA to exist. It should be repealed.

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

At last! You understand why it's unworkable and organisations for women who need single sex spaces clearly provided for within the law will need to know someone's GRC status.

There is no earthly way a birth certificate should be able to be falsified to state an untruth.

Quite.

I'm not sure why the individual and their solicitor pursued it in this manner?

Trojan horse to bring non binary into "gender reassignment" which was clearly acknowledged by the government at the time of the Maria Miller enquiry as not covered by the EA, is my guess. I hope it gets challenged.

aesopfable
My work are definitely seeing this as case law, but at least now they can't tag gender identity along with sex characteristics so I see that as a positive.

Ereshkigalangcleg
I agree it was disingenuos to frame this as a gender fluid harassment case when the individual is clearly MtF so gender reassignment would have sufficed. I'm not sure why the individual and their solicitor pursued it in this manner?

Datun
I agree the legal fiction needs to go. It's bad for women and girls and as others have said the loop hole with DBS is bad.

The Disclosure and Barring Service (DBS) offers a confidential checking service for transgender applicants in accordance with the Gender Recognition Act 2004. This is known as the sensitive applications route, and is available for all levels of DBS check - basic, standard and enhanced.

The sensitive applications route gives transgender applicants the choice not to have any gender or name information disclosed on their DBS certificate, that could reveal their previous identity.

Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Indeed. The GRA is the only piece of legislation I know of which compels people to lie; i.e. it is an offence for anyone in a position of authority to reveal someone's true birth sex if it differs from what is (re)written on the birth certificate.

I believe the only exception is for a criminal investigation.

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Which is why it needs repealing. It's not necessary any longer, now we have pension parity and same-sex marriage.

There is no earthly way a birth certificate should be able to be falsified to state an untruth.

[quote Gottalife]@gardenbird48

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

Or because they don't want to.[/quote]
If you're segregating spaces for men and women, then you're segregating them by sex. You can only have segregated spaces if it's necessary to do so, ie it's to address an imbalance that would be there if you didn't because one sex wouldn't be able to access it on equal terms. Which means you are using the Equality Act single-sex exemptions.

If you're not using the EA single-sex exemptions then you don't have a legitimate basis for the segregation.

Worth knowing that the Statutory Code of Conduct states (emphasis mine):

2.56 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (see paragraphs 2.17 to 2.27) or sexual orientation (see paragraphs 2.60 to 2.64)

There's an interesting piece on this on Legal Feminist.

@gardenbird48

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

Or because they don't want to.

That's why I said there is a problem. The law doesn't work. How can you enforce exemptions when a male wants to apply for a rape counsellor position which can be legally restricted to biological females only, as the EA says, if they have a birth certificate pretending they were born female? It needs to be resolved.

The protected characteristic of Gender Reassignment rightly gives protection from discrimination (such as employment, bullying etc) to someone going through that process.

It does not automatically confer any rights based on the 'acquired sex' so a male going through Gender Reassignment does not get treated like a woman in all cases ie. when considering the Single sex exemptions. (there are many other situations where they will be treated as a woman) The single sex exemptions can apply whether or not a person has a GRC.

For discrimination purposes the comparator for a transwoman (who is legally and biologically male) is a male so if a man would not be allowed access to a female space or service based on their sex, that would almost always also apply to a transwoman.

The single sex exemptions are on a service/space type basis so the EA 2010 allows all males to be excluded from spaces like female wards, places where females may be in a state of undress (toilets, changing rooms) and from memory it is very clear on those exemptions.

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

The deliberate confusion has come partly from the EHRC/Stonewall misusing the pc of Gender Reass to confuse people. The faqs from the captured Government Equalities Office on the thread yesterday also muddy the waters somewhat.

I hope that Liz Truss will make her clarification to strengthen people's understanding of the EA 2010 soon but if not Ann Sinnott's case against the EHRC will.