Liz Truss shift

If not commissioned, funded.

actually think that commissioning authorities should be required to commission at least one single-sex provider for all services for vulnerable women (rape crisis, refuges, etc) - this would not conflict with the Equality Act and would demonstrate the government's commitment to single-sex provision.

I agree.

It would be nice if they commissioned any such service at all - rape crisis centres etc are not commissioned by LAs though they might be part funded by them.

Or maybe not if they hold to a single sex policy - as I know only too well.

Yes, this is basically my understanding, @JustSpeculation.

I actually think that commissioning authorities should be required to commission at least one single-sex provider for all services for vulnerable women (rape crisis, refuges, etc) - this would not conflict with the Equality Act and would demonstrate the government's commitment to single-sex provision.

My understanding of what Liz Truss said is that the government does not want to make it illegal across the board for transwomen to use women's facilities and services. In other words, there will be no blanket ban, so if someone wants to offer a service for women which includes transwomen as potential customers, that's just fine. But if someone wants to offer a service which excludes transwomen in a manner consistent with the exceptions in EA2010, that's just fine, too.

So, I have three questions. First, have I understood correctly?

Second, this seems reasonable to me. Do you agree?

Third, I think this would mean that it would not be discriminatory for a local authority to grant or to remove funding from women's services on the grounds that these service either do or do not cater for transwomen. So LA policy would be entirely up to the LA on this, and not a legal issue. It becomes a matter for local politics. IANAL, but am I right here?

given that a trans woman with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

It's not for all legal purposes though. There are exceptions. Hereditary peerages still pass down the male line. Ministers of religion (who do not marry same sex couples) can refuse to marry a couple if one of them has a GRC.

This trip down memory lane is interesting, referencing MN

www.bbc.co.uk/news/uk-40713645

www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/26/1/1

"A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress."

with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

Can you explain how it's possible to exclude even males with a GRC from women's spaces such as rape counselling services, as is clearly set out in the examples in the Equality Act guidance?

@CharlieParley
Appeal decisions in the Inner House set a precedent for Scotland and are legally binding there. So this judgement is the new authority on the issue. (Until another Inner House decision sets a different precedent.)

The judges referred to biological not legal sex in their ruling btw, reminding us that the Equality Act defined women as female and did this even though at the time the concept of legal sex had already been created.

I thought I’d seen a reference in the judgment to the PC of sex being about biological sex, but then thought I must have misunderstood - I’m not aware of ‘biological sex’ being a category that is recognised anywhere in legislation; also, given that a trans woman with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

I’m not convinced that the use of the term ‘female’ was necessarily intended to indicate a conceptual distinction in the EA between ‘biological sex’ and ‘gender’. It seems to me, in the context it’s used, it might have just been intended to make clear that the use of the terms ‘man’ and ‘woman’ didnt limit those categories to adults.

The GRA includes a provision that, where a person has obtained a GRC, “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 there is clearly no established position in legislation as to what ‘gender’, sex’, ‘male’ and ‘female’ mean.

Of course there is a ' Duty (i.e. a Statutory obligation, not a voluntary option) to provide ', including making special provision for those who would be excluded by provision which others would find adequate.

e.g. You may not choose to effectively exclude, therefore unlawfully discriminate against, wheelchair users, by having a flight of steps to the only entrance your service.

(Although, Disability Discrimination is in practice, "in many ways worse than Racism, in the effect it has on people's lives, and yet it is invisible, ubiquitous, publicly accepted and institutionalised" said Sir Trevor Phillips, who could have said the same about Ageism)

@justicewomen thank you very much for that link

*What the EA says is that it is legitimate to provide a single-sex space or service in some circumstances, but no service provider is required to provide a single-sex space or service.

So what this means is that service providers have the right to provide a single-sex service. There is nothing in the legislation which makes it illegal not to provide such a service.*

This is not entirely correct. A commissioner or service provider who determines a policy which amounts to a mixed sex service could be judged to have indirectly discriminated against even a small group of people if they could show they are particularly disadvantaged (compered to people not of their protected characteristic) because of their protected characteristic (which could be sex, race, religion) and the provider couldn't show it was a proportionate response to a legitimate aim. So a group of Muslim women or those with PTSD now unable to use a women refuse for example. It could also breach the PSED. Worth reading this blog by solicitor Audrey Ludwig legalfeminist.org.uk/2021/10/18/how-to-reconcile-the-seemingly-irreconcilable/

The Equality Act specifically states that a "woman" is a "female of any age". So arguably yes a male with a GRC but not a male without one.

I was wondering if someone would mention that judgment. I have only skimmed it so far, but my impression was that the court assumed that ‘sex’ in the EA refers to legal sex and that therefore ‘women’ would not include trans women (without a GRC, presumably, as those with a GRC would be legally women). I couldn’t see any reasoning as to how they reached that conclusion, so I’m not sure how it stands as precedent. I need to give it a proper read though. In any event, I don’t think decisions of the Scottish courts are binding on the courts in England and Wales. It will be interesting to see if it goes to the Supreme Court though.

Appeal decisions in the Inner House set a precedent for Scotland and are legally binding there. So this judgement is the new authority on the issue. (Until another Inner House decision sets a different precedent.)

The judges referred to biological not legal sex in their ruling btw, reminding us that the Equality Act defined women as female and did this even though at the time the concept of legal sex had already been created.

It is unlikely that this particular case will see the Scottish Government appeal to the UK's Supreme Court as their chance of successfully arguing that the Scottish Government had the legal competence to unilaterally alter UK law is slim. (Not impossible though.)

Just to add to my last point, if a service provider offers "men's" and "mixed" options but not "women's", then they are on shaky ground legally if they can't justify it. A reasonable justification might be to encourage men into sectors they are underrepresented in, such as nursing or primary teaching. There isn't however a justification for providing only "men's" and "gender neutral" toilets, nor for providing only men's and mixed-sex rape counselling.

Add more toilets. Add mixed gender, gender neutral, transinclusive, NB, all the bloody toilets. So long as enough accessible toilets are still available for females, and TQ+ male people are expect to respect that other people have inclusion needs and rights too, which means that this one space is not theirs (all the rest are) and this one space is not accessible to them. As without it, those females would have no access to anything at all.

@JoanOgden no problem!

@OldCrone
“Also, if we’re talking about a cis gender man arguing that they are being discriminated against on the basis of their gender identity because they are not allowed to use the women’s toilets, while trans women are allowed to use them, I can’t see that argument getting anywhere. First, is their right to privacy engaged, if there are men’s toilets available? Also the question would be whether excluding them had an objective and reasonable justification - I think it would be hard to argue it didn’t, as long as there were men’s toilets available for them to use.”

Doesn't this argument also apply to males who identify as 'transwomen'? They are not excluded from services, because there is one provided for those of the male sex.

I thought we were talking about whether a person could legally challenge an organisation/venue which has separate men’s and women’s toilets, and has an explicit policy of allowing trans people to use the toilets which reflect their gender? There is a separate question about whether a trans person could legally challenge an organisation or venue which has a policy of not allowing trans people to use the toilet that reflects their gender.

“Has there been a definitive court decision as to what ‘sex’ means in the EA, with regard to trans people?”

Isn't that what the recent court decision in Scotland did?

I was wondering if someone would mention that judgment. I have only skimmed it so far, but my impression was that the court assumed that ‘sex’ in the EA refers to legal sex and that therefore ‘women’ would not include trans women (without a GRC, presumably, as those with a GRC would be legally women). I couldn’t see any reasoning as to how they reached that conclusion, so I’m not sure how it stands as precedent. I need to give it a proper read though. In any event, I don’t think decisions of the Scottish courts are binding on the courts in England and Wales. It will be interesting to see if it goes to the Supreme Court though.

However if by not offering a single-sex service some women are unable to attend (religious/cultural reasons, or PTSD sufferers) then illegal indirect discrimination on the grounds of religion or disability has taken place. In the case of rape counselling, male-triggered PTSD will be quite widespread.

Isn't Sarah currently taking this particular question to court?

Also, if we’re talking about a cis gender man arguing that they are being discriminated against on the basis of their gender identity because they are not allowed to use the women’s toilets, while trans women are allowed to use them, I can’t see that argument getting anywhere. First, is their right to privacy engaged, if there are men’s toilets available? Also the question would be whether excluding them had an objective and reasonable justification - I think it would be hard to argue it didn’t, as long as there were men’s toilets available for them to use.

Doesn't this argument also apply to males who identify as 'transwomen'? They are not excluded from services, because there is one provided for those of the male sex.

Has there been a definitive court decision as to what ‘sex’ means in the EA, with regard to trans people?

Isn't that what the recent court decision in Scotland did?

For Women Scotland, a feminist group, argued that the 2018 Gender Representation on Public Boards Act which aimed to boost female representation breached equality legislation because it included natal women, trans women and those who “live as women”.

Lady Dorrian, the lord justice clerk, said that by “incorporating those transsexuals living as women into the definition of woman the 2018 act conflates and confuses two separate and distinct protected characteristics”.

www.mumsnet.com/Talk/womens_rights/4484708-For-Women-Scotland-win-appeal-Public-Boards-definition-of-woman

But wouldn't we also need a definition of what 'trans people' means? Who exactly is covered by this definition? Is every male who occasionally cross dresses to be considered to be 'trans' and allowed access to all women's spaces?

Thanks @Helen8220 - yes, those are the conclusions I was groping towards, so it is useful to see your (more coherent) thoughts on this.

I still hate the idea of unisex toilets much, much more than I am bothered by transwomen using the ladies - though I agree the latter can be problematic. I think most women would agree with me on this, but would be interested to see a survey.