Q&A thread for New Posters

But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination

You could argue direct discrimination (you have to leave the pub because you are trans) or indirect discrimination (I am effectively excluded from this service because there is no toilet provision for me), but neither of those arguments prevent provision of single sex services that exclude on the basis of sex.

Similarly I could argue that Saga holidays discriminated against women (can’t be bothered to think of an imaginary example), but it would still be legal for them not to take my booking because of my age.

If you were right about this, just think what would happen.

Any man who wanted access to a female-only space could just say 'I identify as a woman' and he would have to be granted access. We are repeatedly told that 'gender expression' is not the same as 'gender identity', so he wouldn't even have to 'dress as a woman'. He could turn up just looking like any other man and claim to have a 'woman' identity.

How would you prevent him from accessing female-only spaces? After all, someone's 'gender identity' (again, as we are repeatedly told) is a personal, internal feeling, which nobody else can question because it can't be seen and there is no test for a 'gender identity'. So everyone is whatever they say they are.

In your version of the law, single-sex spaces don't exist, because everyone can self-identify into whichever one they want.

Do you know of any cases where such a claim has been made?

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.

Maya Forstater wrote an interesting article on it on her Question of Consent blog.

a-question-of-consent.net/2020/05/29/the-case-of-sb/

I reiterate there is no specific Equality Act right for any legal male to access female only spaces.

if it were enough for the provider to simply say ‘you don’t have a GRC, so your legal sex is male, and therefore we are excluding you like any other man’ then how could a trans person without a GRC ever bring a gender reassignment discrimination claim in those circumstances?

My understanding is that they couldn't (unless they were being excluded from the services for their own sex). Do you know of any cases where such a claim has been made?

But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination

That's because everything you've read is pushing a certain agenda. There is also the issue that the possession of a GRA has certain privacy issues so these sources claim it isn't possible for a service to exclude MTF people as they don't know if they have a GRC or not.

@OldCrone

Their sex (the sex which is legally recognised) isn't 'irrelevant' to single sex spaces. If sex was irrelevant for single sex spaces there couldn't be any single sex spaces. Both the protected characteristics of sex and gender reassignment are relevant.

Take the example of a women-only space. Men are excluded. Anyone who is male (legally male) is excluded. Someone born male who identifies as a woman but doesn't have a GRC is legally male, so he is excluded on the basis of his sex, just as any other man is excluded on the basis of his sex. He is not treated any differently from any other male person, so there is no discrimination due to the protected characteristic of gender reassignment.

A woman who identifies as a man but has no GRC is legally female, so cannot be excluded from a female-only space. To exclude such a person would be to discriminate because of gender reassignment, so she shouldn't be treated any differently from any other female person.

A person born male who has a GRC is legally female, so would normally have the right to enter female-only spaces, but there are still provisions in the EA to prevent this if it is a proportionate means of achieving a legitimate aim.

The comparator for discrimination on the grounds of gender reassignment is with someone of the same legally recognised sex.

I’m still not sure this is correct. Obviously in establishing a single sex service the provider has to show that the conditions for relying on the sex discrimination exception are met. And it may well be right to say, as the EHRC does, that where a trans person brings a sex discrimination claim, their sex for that purpose will be their legal sex, which will depend on whether they have a GRC. But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination (and ultimately the lawfulness of their exclusion will be very fact specific) - if it were enough for the provider to simply say ‘you don’t have a GRC, so your legal sex is male, and therefore we are excluding you like any other man’ then how could a trans person without a GRC ever bring a gender reassignment discrimination claim in those circumstances?

A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant.

Their sex (the sex which is legally recognised) isn't 'irrelevant' to single sex spaces. If sex was irrelevant for single sex spaces there couldn't be any single sex spaces. Both the protected characteristics of sex and gender reassignment are relevant.

Take the example of a women-only space. Men are excluded. Anyone who is male (legally male) is excluded. Someone born male who identifies as a woman but doesn't have a GRC is legally male, so he is excluded on the basis of his sex, just as any other man is excluded on the basis of his sex. He is not treated any differently from any other male person, so there is no discrimination due to the protected characteristic of gender reassignment.

A woman who identifies as a man but has no GRC is legally female, so cannot be excluded from a female-only space. To exclude such a person would be to discriminate because of gender reassignment, so she shouldn't be treated any differently from any other female person.

A person born male who has a GRC is legally female, so would normally have the right to enter female-only spaces, but there are still provisions in the EA to prevent this if it is a proportionate means of achieving a legitimate aim.

The comparator for discrimination on the grounds of gender reassignment is with someone of the same legally recognised sex.

I thought that having a GRC was irrelevant for the purposes of the EA?

No, not in practice.

Are you sure that’s right? A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant.

Their "legal sex" isn't irrelevant, it's a higher bar for exclusion from female spaces or treatment as a male rather than female and there is case law. The EHRC clarified in 2018 that the legal sex of a male without a GRC is male. There is no special positive right in the EA for males without a GRC (who may be considered legally female in terms of the EA) to access female single sex spaces where women expect privacy and dignity, any more than any other legal male.

@OldCrone

This means that it is easier to exclude a male without a GRC from a single sex female space (legally male even if this person has taken steps to make a physical transition) than it is to exclude a male with a GRC (legally female, but may be physically indistinguishable from any other male).

Are you sure that’s right? A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant. They would have to argue that the exclusion didn’t fall within Schedule 3 para 28 because their exclusion from the single sex service in question wasn’t a proportionate means of achieving a legitimate aim - which would be extremely fact specific, but I’m not sure a court would give much weight to the person having a GRC.

[quote Helen8220]@Ereshkigalangcleg

But in some cases this risks discrimination against males who do not have the protected characteristic of gender reassignment. Males with it but no GRC are legally male for the EA2010. So it's not as clear cut as you imply.

I thought that having a GRC was irrelevant for the purposes of the EA? The question of how the GRA interacts with sex discrimination under the EA seems to be one of the key areas of legal uncertainty[/quote]
You quoted the relevant part of the GRA2004 yourself earlier:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

So if a person has a GRC, their sex (in legal terms) is different from if they don't have a GRC. So it's not completely irrelevant in terms of the protected characteristic of sex in the EA2010.

This means that it is easier to exclude a male without a GRC from a single sex female space (legally male even if this person has taken steps to make a physical transition) than it is to exclude a male with a GRC (legally female, but may be physically indistinguishable from any other male).

@AskingQuestionsAllTheTime

Legislation since Thatcher got rid of the department whose business was to draft unambiguous law has been something of a mess, requiring the courts to straighten it out.

What department are you referring to? Drafting primary legislation is the job of the Office of Parliamentary Counsel who have been around for 150 years and are still committed to clear unambiguous drafting.

@Ereshkigalangcleg

But in some cases this risks discrimination against males who do not have the protected characteristic of gender reassignment. Males with it but no GRC are legally male for the EA2010. So it's not as clear cut as you imply.

I thought that having a GRC was irrelevant for the purposes of the EA? The question of how the GRA interacts with sex discrimination under the EA seems to be one of the key areas of legal uncertainty

Something as absolutely basic to the species as the two sexes, male and female, man and woman, has never been defined in UK law because (as with eg water) everyone in the entire world knew exactly what each word meant. No judge has ever asked "what is a man?" as a judge once asked "what is a beatle?", in order to get a definition into the public record, because that has not been needed.

Legislation since Thatcher got rid of the department whose business was to draft unambiguous law has been something of a mess, requiring the courts to straighten it out.

@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

Not exactly; it provides a number of specific exceptions to the prohibition on sex discrimination, in each case subject to the condition that single sex provision is a proportionate means of achieving a legitimate aim.

But in some cases this risks discrimination against males who do not have the protected characteristic of gender reassignment. Males with it but no GRC are legally male for the EA2010. So it's not as clear cut as you imply.

I think this is a problem for all of us, regardless of our views on the practical/social/moral issues.

I agree with this, if we are talking about reasonable people who want to balance rights. As it is, it benefits extremist TRAs who favour zero gatekeeping or restrictions.

As far as I’m aware, neither sex not gender are defined anywhere in law

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.

The broader issue I was trying to bring out is that the confusion and uncertainty about the effect of the law in this area is exacerbated by the fact that legislation does not provide clear definitions of sex and gender, and in places uses the terms interchangeably. I think this is a problem for all of us, regardless of our views on the practical/social/moral issues.

The problems have really come about due to the misleading interpretation of the legislation in the EHRC guidance. Ann Sinnott is taking this to judicial review, so we may have some more clarity once this goes to court.

uncommongroundmedia.com/the-2010-equality-act-is-being-undermined-by-official-guidance/

Not exactly; it provides a number of specific exceptions to the prohibition on sex discrimination, in each case subject to the condition that single sex provision is a proportionate means of achieving a legitimate aim.

The broader issue I was trying to bring out is that the confusion and uncertainty about the effect of the law in this area is exacerbated by the fact that legislation does not provide clear definitions of sex and gender, and in places uses the terms interchangeably. I think this is a problem for all of us, regardless of our views on the practical/social/moral issues.

In other words the law says males should not be in spaces which are mandated as being for females only. Got it. Thanks.

@AskingQuestionsAllTheTime

Sex is a protected characteristic, and single sex spaces, including hospital wards, rape crisis centres, changing rooms and public lavatories, are mandated as single sex. Not single gender: in law, gender is not actually defined as far as I know, and it is hard to see how it could be since it deals entirely with what an individual feels rather than with objective fact.

I just wanted to pick up on a couple of points of legal detail here (not to get into a general argument on the implications, as I’m pretty much resigned to the fact that i will never see eye to eye with the majority of people on this board).

As far as I’m aware, neither sex not gender are defined anywhere in law - in fact, the way the terms are used in legislation suggests a degree of confusion about what the difference between them is (the Gender Recognition Act says: “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

Also, the existence of single sex services is permitted by an exception to the general non-discrimination principle under the Equality Act, rather than being a direct consequence of the fact that sex is a protected characteristic. The starting point is that you cannot discriminate against a person because of their sex, so you could not exclude a man simply because he is a man - however, you can depart from that if it is a proportionate means of pursuing a legitimate aim, and there are various specific provisions expanding on this is the context of single sex spaces etc.

Well yeah - insert any stereotype of gender expectations.

As far as I know I have never "misgendered" any of the many trans people I know, however tempted I may have been on occasion to call out some bit of loathsome entitled misogynistic behaviour, or to tell one of them they was behaving like a rather nasty man. But it can be difficult in some cases.

It's similar to the way that anyone getting her pension used to get described as a sweet little old lady, more or less and as far as the media were concerned. Horrible toads suddenly becoming lovable overnight was total cobblers; and a nasty man is likely, I feel, to remain a nasty person whatever he may also identify as being.