Q&A thread for New Posters

Thanks @MoleSmokes!

[quote Helen8220]@Ereshkigalangcleg

Sex is defined in the Equality Act as a "female of any age" or a "male of any age". Gender reassignment as a protected characteristic is defined in terms of "transsexual people". Obviously the GRA muddies the water in terms of the sex characteristic.

Could you point me to the relevant provision in the EA please? I looked at the index in schedule 28 but that only points me to s11 which says something different[/quote]
Section 212 "General Interpretation"

(1)In this Act—
“armed forces” means any of the naval, military or air forces of the Crown;
“the Commission” means the Commission for Equality and Human Rights;
“detriment” does not, subject to subsection (5), include conduct which amounts to harassment;
“the Education Acts” has the meaning given in section 578 of the Education Act 1996;
“employment” and related expressions are (subject to subsection (11)) to be read with section 83;
“enactment” means an enactment contained in—
(a)an Act of Parliament,
(b)an Act of the Scottish Parliament,
(c)an Act or Measure of the National Assembly for Wales, or
(d)subordinate legislation;
“equality clause” means a sex equality clause or maternity equality clause;
“equality rule” means a sex equality rule or maternity equality rule;
“man” means a male of any age;
“maternity equality clause” has the meaning given in section 73;
“maternity equality rule” has the meaning given in section 75;
“non-discrimination rule” has the meaning given in section 61;
“occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993;
“parent” has the same meaning as in—
(a)the Education Act 1996 (in relation to England and Wales);
(b)the Education (Scotland) Act 1980 (in relation to Scotland);
“prescribed” means prescribed by regulations;
“profession” includes a vocation or occupation;
“sex equality clause” has the meaning given in section 66;
“sex equality rule” has the meaning given in section 67;
“subordinate legislation” means—
(a)subordinate legislation within the meaning of the Interpretation Act 1978, or
(b)an instrument made under an Act of the Scottish Parliament or an Act or Measure of the National Assembly for Wales;
“substantial” means more than minor or trivial;
“trade” includes any business;
“woman” means a female of any age

www.legislation.gov.uk/ukpga/2010/15/section/212

I suppose that now same-sex marriage is possible, the "our religion doesn't allow the unmarried to share a bed" reason would once more be valid if an unmarried same-sex couple wanted to rent their double bedroom.

As far as I know you don't have to. And if you haven't given any reason, it can't be argued about, can it.

No reason is necessary if discrimination is indirect.

It would also be discriminatory if it were clear that a particular group were being treated differently for no fair reason e.g. re equal pay claims.

The mistake was in giving any reason at all. As far as I know you don't have to. And if you haven't given any reason, it can't be argued about, can it.

The mistake is clearly in telling someone that you are discriminating against them because of a protected characteristic.

No, because indirect discrimination is also illegal. The B&B owners claimed that they would refuse service to any unmarried couples on religious grounds. At the time same sex marriage was not available so it was held that this was discrimination on the grounds of sexual orientation.

The mistake is clearly in telling someone that you are discriminating against them because of a protected characteristic.

www.equalityhumanrights.com/en/legal-work-scotland/bull-v-hall-why-supreme-court-found-direct-discrimination

Although not directly applicable to this thread, I think this is quite interesting as an example of how different rights are weighed against each other, and how direct and indirect discrimination is ascertained.

The B&B case does show that when cases aren't straightforward it's often because the needs of people with different protected characteristics needed to be balanced.

Unless there are special rules for pubs, you can't refuse service if the reason is illegal discrimination.

"Gay snub Cornish B&B owners lose Supreme Court appeal"

www.bbc.co.uk/news/uk-england-25119158

On the other hand I'm not sure how the following case will be decided given that equalities legislation specifically allows single sex clubs.

www.theguardian.com/world/2020/sep/08/businesswoman-launches-legal-action-against-the-garrick-club

Haha yes I don't think "being an arsehole" is a protected characteristic. Otherwise Peggy Mitchell would have had some issues.

Not a lawyer though so happy to be corrected...!

Would it not need to be because of direct discrimination against a group actually mentioned in the EA? And provably so rather than just "This person argued with me and became a nuisance, disrupting my pub, so I asked them to leave and not come back"?

Is it no longer true that a publican or landlord can ask any person whatever to leave his premises for any reason or none?

I'm pretty sure that if it was proven the reason the person was barred from entry was because of direct discrimination (e.g. race, sex, religion) then no that wouldn't be legal. I think there have already been some legal challenges (at least in the US) where there was evidence that AirBnB hosts had rejected bookings because of racism.

Ereshkigalangcleg
There is a case much cited by TRAs where a publican banned an MTF trans person because the person used the female toilets. Two things: the publican didn't contest the case, and the person was barred, not simply asked to use a different toilet.

Is it no longer true that a publican or landlord can ask any person whatever to leave his premises for any reason or none? It certainly used to be the law that the proprietor or owner of any premises could withdraw the implied permission for you to be in or on their premises, and that was their right. If you then insisted on being, remaining or going there, it was trespass. (This was in 2010, and I haven't looked since.)

This was the same when it was your house. So for instance the TV licensing people had no right to enter your premises unless they had a warrant to do so, and the words "I withdraw any implied right to be on my premises" meant they were not even allowed into your front garden. (This was worth knowing if you didn't have a television and therefore had no licence, and cba having your house searched for one. They are trained now, but for a couple of years they were a pertinacious nuisance.)

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex

The other reason was to protect the right to privacy per the Human Rights Act - it recognised that in some situations this would be threatened if sex had to be revealed. (Although the right to privacy is a qualified right).

However, I don't know whether the right to privacy is relevant when somebody information is already public.

I think the gender/sex confusion was inevitable once the GRA was passed. This law acknowledges that people can't change sex but can change 'gender', which is why there is this confusion.

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex.

Indeed. It was a sexist solution to a sexist problem.

Fortunately people are more enlightened, and the sexist solution is no longer required.

I think the gender/sex confusion was inevitable once the GRA was passed. This law acknowledges that people can't change sex but can change 'gender', which is why there is this confusion.

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex. There is no longer any need for this, since we now have same sex marriage, so the GRA, as you suggest, could simply be scrapped. The EA would then be clearer about single-sex spaces because everyone would simply be the sex they were born as.

I don't want to get into a protracted argument over this but I was actually really surprised by the responses of the lawyers in that session as they were explicitly saying that nothing is black and white and any perceived discrimination can be challenged in court. It is the responsibility of the service provider to prove to a judge that the discrimination that took place was a proportionate means of achieving a legitimate aim.

Of course. Anyone can challenge anything they like!

Thanks all, this whole discussion started from a comment I made about the meanings of ‘sex’ and ‘gender’ in legislation being unclear, and the interaction between the EA and the GRA being uncertain, I think the comments prove my point! Personally I think they should scrap and re-write the whole area from scratch

It's all there in black and white.

I don't want to get into a protracted argument over this but I was actually really surprised by the responses of the lawyers in that session as they were explicitly saying that nothing is black and white and any perceived discrimination can be challenged in court. It is the responsibility of the service provider to prove to a judge that the discrimination that took place was a proportionate means of achieving a legitimate aim.

In terms of a case by case basis I mean that they would examine the intricacies of each individual situation. For example, does this refuge have shared sleeping accommodation, shared bathroom facilities, how is it arranged. In what way would women be negatively affected by this, what ramifications would that have for service provision, what risk mitigations are in place etc.

So this person should be, but that person not so much. Which is clearly unworkable in real life.

And it would be impossible to eliminate personal bias in decision making. It would be legislating to allow prejudice.

There are numerous examples of legitimate single sex provision actually written into the equality act. Including refuges, sport and health care.

It's all there in black and white.

I remember them saying that it really does work on a detailed, case by case basis.

When transactivists use the term case by case, they generally mean in terms of the person being excluded. So this person should be, but that person not so much. Which is clearly unworkable in real life.

But in terms of the provision, yes. It has to be justified as a proportional means to a legitimate aim. But the examples of these are quite clear.

At the conference organised by WPUK this time last year there was a session on Women and the Law and there were lots of questions asked like this (e.g. "is it legal for abc to be female only? Do we have a right to refuse entry to xyz type of people?").

The lawyers answering the questions were saying that there is no clear yes or no answer to any of these questions. Any perceived discrimination can be challenged in court and the "discriminator" would have to prove that it was a proportionate means of achieving a legitimate aim. All factors (such as GRC, trans identification etc.) can be taken into account in deciding whether or not the discrimination was lawful.

I remember them saying that it really does work on a detailed, case by case basis. The example they gave was the difference between a local "women's support group" that had less than 10 attendees and a "women's conference" which was a large, publicly advertised event. In the former you might be able to justify it being sex-segregated, in the latter you would really struggle.

The misrepresentation of the EA by the EHRC (and the GEO) is the reason that Ann Sinnott has applied for Judicial Review. As she points out, many other organisations have used the incorrect information from these sources to shape their own (unlawful) policies. So women believe they have the right to single sex services and those who are trans believe they have the right, in law, to access whatever service they feel best matches their gender identity - no wonder there is conflict over this.
From her crowdfunder:

'For nearly 10 years, unlawful guidance on the 2010 Equality Act (EA2010) has been displayed on the website of the Equality and Human Rights Commission (EHRC) and on the Government Equalities Office (GEO) website for 5 years.

Over these ten years, the guidance has been widely accessed and further disseminated by countless organisations of all types. As a result, the unlawful guidance is reflected in the equality policies of organisations and institutions throughout the UK.

EHRC and GEO guidance is in breach of EA2010, Schedule 3, Sections 26, 27 and 28'

The statement from the EHRC that you quoted above also includes the following:
“Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. There are some exceptions permitting different treatment on the basis of gender reassignment, for example the exceptions related to single-sex services and associations. These exceptions do not hinge on whether or not an individual has a GRC. Any use of the exceptions permitting different treatment must be objectively justified, meaning that it must be a proportionate means of achieving a legitimate aim, and will therefore depend on the particular circumstances. While an individual’s possession, or not, of a GRC may be part of the evidence a court would consider in a gender reassignment discrimination case, it is unlikely to be a determining factor.”