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Feminism: Sex and gender discussions

Sex based rights in the UK?

64 replies

RobinMoiraWhite · 05/02/2021 22:21

An interesting perspective.

rgellman.medium.com/there-is-no-such-thing-as-sex-based-rights-in-the-uk-140554a2c42c

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NiceGerbil · 06/02/2021 22:55

Thank you plan :)

Ereshkigalangcleg · 06/02/2021 22:19

Let's not labour under the misapprehension that all things posted here are posted with the intention of enlightening and supporting the rights and protections of women. Some threads illustrate that better than others.

This.

merrymouse · 06/02/2021 21:56

Most posters with specialist, professional knowledge don't usually take the stance that a general request for information is cadging free advice

And serious legal commentators who engage with social media in good faith are able to back up their opinions with expertise, otherwise there is no point in engaging.

However, the quality of the linked article suggests a lack of expertise.

PlanDeRaccordement · 06/02/2021 20:59

@NiceGerbil

This argument being put forward. That it's a sign of our oppression that we have single sex, anything. If we were equal we'd be in with the men.

Is just such an obvious load of patent bollocks I'm surprised that people continue with it.

Oh yes! Women have separate changing because we're lesser than men and the feminist thing to do is fight for the right for you and your daughters to get your kit off in front of random blokes. Girl power!

Fuck off.

^Loved your post.
BuntingEllacott · 06/02/2021 20:56

Let's not labour under the misapprehension that all things posted here are posted with the intention of enlightening and supporting the rights and protections of women. Some threads illustrate that better than others.

RobinMoiraWhite · 06/02/2021 20:45

@MissBarbary

I wasn't asking for free legal advice. I'm a solicitor but employment and discrimination law isn't my field. It seemed to me that what was being put forward as a comparator was incorrect and this is your field.

Most posters with specialist, professional knowledge don't usually take the stance that a general request for information is cadging free advice.

Dont get me wrong, I wasnt suggesting that you were 'cadging' free advice. Its just that answering such a general question is both valueless and dangerous because discrimination cases can be put in a number of ways and there is a dearth of good authority in this area - despite my efforts on both sides of the argument! This well illustrated by Green, where the statements relied upon are an afterthought to the main case, specifically said to be decided with little argument and easily argued to be limited to the facts of that case - or an important precedent depending which way I am arguing it. Trans remains the rarest of protected characteristics (and I use that term to include both 'gender reassignment' as broadened by Taylor v JLR, and arguments about when a trans person should be treated as a member of their preferred sex/gender. But you could buy my book due out in March. There, couldnt say fairer than that, could I?
OP posts:
Rupertbeartrousers · 06/02/2021 20:33

@MissBarbary

I wasn't asking for free legal advice. I'm a solicitor but employment and discrimination law isn't my field. It seemed to me that what was being put forward as a comparator was incorrect and this is your field.

Most posters with specialist, professional knowledge don't usually take the stance that a general request for information is cadging free advice.

Especially on your own thread
MichelleofzeResistance · 06/02/2021 20:29

Charlie thank you! That was the case I was thinking of and couldn't find. Flowers

MissBarbary · 06/02/2021 20:18

I wasn't asking for free legal advice. I'm a solicitor but employment and discrimination law isn't my field. It seemed to me that what was being put forward as a comparator was incorrect and this is your field.

Most posters with specialist, professional knowledge don't usually take the stance that a general request for information is cadging free advice.

CharlieParley · 06/02/2021 20:06

So it's possible that the correct comparator in a case of discrimination on the basis of gender reassignment is a person of the same sex, but that depends on the exact circumstances of the case.

That does not diminish the importance of the judgment in Green vs the Secretary of State for our defence of single sex spaces, because the circumstances are directly comparable.

RobinMoiraWhite · 06/02/2021 20:02

[quote MissBarbary]@RobinMoiraWhite

Robin, could you explain what the correct comparator is for a discrimination claim based on gender reassignment?

I thought it was being treated less favourably than a cis person of either natal sex (yes I know that word is banned but it's relevant here) but others are saying it's being treated less favourably than a person of the same biological sex.

Thanks[/quote]
I dont do free legal advice on social media. But I will say that anyone who thinks the answer to this question is simple either hasnt understood the question or the current law.

OP posts:
CharlieParley · 06/02/2021 20:01

Sorry this sentence

So, your statement is true only when the claim is based on sex.

Should read

So, your statement is true only when the claim is based on sex under specific circumstances.

CharlieParley · 06/02/2021 19:59

@MichelleofzeResistance

Was trying to find the court case: sorry, I can't track it down. Someone more clever than me will remember. But the decision was that unless a GRC was held changing legal sex, the comparator to check for less favourable treatment was someone of the same sex.
Finding the comparator in discrimination cases is notoriously difficult. In the absence of an actual comparable colleague or applicant, a claimant has to construct a theoretical comparator to show that they were discriminated against on the basis of a protected characteristic.

So, your statement is true only when the claim is based on sex. The case that set the precedent here was of a male prisoner who identified as trans in the male estate (Green vs Secretary of State for Justice, 2013).

Green, convicted for murder and classed as a flight risk, identified as trans and was accommodated as a transgender prisoner but housed in the male estate. The prison had a strong policy on supporting prisoners who identify as trans, including a list of items that could be provided to a prisoner to facilitate their "gender expression". But items could be withheld if they could be used to facilitate escape or deemed unsafe.

Green claimed that not meeting the demands for a number of feminine-coded things was discrimination on the basis of gender reassignment, because prisoners in the female estate were allowed those things.

The judge ruled that someone who was both biologically and legally male could not claim discrimination on the basis of what female prisoners were allowed to do or have, but only the basis of what all other male prisoners could do or have.

So in this case, the correct comparator was a prisoner of the same sex.

In Home Office vs Saunders (2005) the correct comparator was found to be someone of the opposite sex.

This was a case involving a female prison officer working in the male estate who refused to do a rub-down search on a male prisoner.

At first, the Home Office had a rule that said rub-down searches could only be done by a prison officer of the same sex.

Then it was argued that not being able for a female officer to perform a rub-down search of a male prisoner would "inhibit a female officer's career prospects".

So in May 1992, the rule was changed to allow all officers to rub-down search prisoners regardless of sex. But then they decided that a) it wouldn't inhibit a male officer's career prospect not to rub-down search a female prisoner because b) a female prisoner could reasonably object to this on grounds of privacy and decency. So it was decided that male officers must not perform rub-down searches of a female prisoner.

But then in October 1992, a circular was sent out that said female officers must perform rub-down searches of a male prisoner. (No one knows how this changed from allowing rub-down searches by an opposite-sex officer to a requirement for female officers to rub-down search male prisoners).

Enter Officer Saunders. She really did not think this was appropriate, but her protests (submitted via official channels) were ignored. So from 1992 until 2003 she got around the rule by having sympathetic male colleagues step in whenever a rub-down search was required. Then she got a boss who decided that rules were rules. He demanded she rub-down search a prisoner in front of him. She refused and was transferred to the female estate against her wishes.

She claimed discrimination on the basis of sex. The Home Office argued the correct comparator was a male guard being asked to do a rub-down search of a male prisoner and a male guard refusing such a search on principle would also be disciplined.

The court however found that the correct comparator was a male officer being asked to rub-down search a female prisoner even though this wasn't permitted anyway. They found in her favour.

MichelleofzeResistance · 06/02/2021 19:57

Thanks Spero, that's kind of you. Interesting to know everyone's as confused as we are.

Ereshkigalangcleg · 06/02/2021 17:32

And I'm livid. I'm only a baby GCer, I'd like to find a middle way, but this article is shameful.

I'm sure you might be starting to see that many transactivists are not interested in finding a middle way.

Spero · 06/02/2021 16:34

[quote MichelleofzeResistance]@Spero if you feel like chipping in here, your legal expertise may be helpful?[/quote]
Sorry! I am not a discrimination/Equality Act specialist - what I know I have picked up over the years following people much more knowledgable than I - Audrey Ludwig on Twitter is very good as is the Legal Feminist site.

I am afraid I get lost quite easily when people start talking about comparators. The conflation between sex and gender and the misrepresentation of the law by even the EHRC has made if very difficult for many to feel confident they understand what is going on. We urgently need clear guidance.

MichelleofzeResistance · 06/02/2021 16:30

Ooh and @MurrayBlackburnMackenzie are also brilliant on this sort of thing while we're tagging helpful people.

MichelleofzeResistance · 06/02/2021 16:28

@Spero if you feel like chipping in here, your legal expertise may be helpful?

merrymouse · 06/02/2021 16:24

A company which consistently employs menopausal women, women and women over 40 who already have children and trans over woman under 30 simply because the former groups are unlikely to impossible to be claiming maternity rights isn't off the hook for a sex based discrimination claim.

They are off the hook regardless of whether they employ a trans women if, according to the law, anyone can become pregnant regardless of sex.

If it’s impossible to judge sex, and sex has no consequences, how could the employer possibly know that these employees might become pregnant?

MichelleofzeResistance · 06/02/2021 16:23

In at least one case the legal comparator has depended on the person's legal sex. Which is changed only in the case of a GRC being held.

MissBarbary · 06/02/2021 16:21

@RobinMoiraWhite

Robin, could you explain what the correct comparator is for a discrimination claim based on gender reassignment?

I thought it was being treated less favourably than a cis person of either natal sex (yes I know that word is banned but it's relevant here) but others are saying it's being treated less favourably than a person of the same biological sex.

Thanks

CharlieParley · 06/02/2021 16:01

I mean honestly, if you're setting out to correct a misconception, you ought to be sure of the facts. What arrogance otherwise...

CharlieParley · 06/02/2021 15:58

[quote RobinMoiraWhite]An interesting perspective.

rgellman.medium.com/there-is-no-such-thing-as-sex-based-rights-in-the-uk-140554a2c42c[/quote]
Interesting in what way? How to demonstrate one's complete ignorance of women's history, feminism, the Equality Act, logic, women's needs or the etymology of the word used for a room?

I find the latter error by the author particularly amusing, as the name derives from something that had nothing whatsoever to do with the different status of the sexes and everything to do with the different status of the classes. Which involved excluding members on the basis of their rank, not sex, at court.

MissBarbary · 06/02/2021 15:55

Barracker I would argue your example can still be argued on the basis of sex discrimination.

A company which consistently employs menopausal women, women and women over 40 who already have children and trans over woman under 30 simply because the former groups are unlikely to impossible to be claiming maternity rights isn't off the hook for a sex based discrimination claim.

On the other issue I'm struggling to see that a trans woman would not have a claim because she had been treated the same as a natal man. That makes gender reassignment protection meaningless.

QueenoftheAir · 06/02/2021 15:29

For me - it's five wasted minutes of my life, as it's written by a misogynist child who substantiates nothing.

Ditto.

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