Report that EHRC's statutory codes of practice are under review

‘It's not a matter of interpreting it correctly, it's a matter of getting rid of it altogether and getting back to what the EA actually says.’

Yes, the advice is wrong.

'Case by case' comes from the current statutory code which says:

13.60 - As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.

(my bold)

It's very clear from that, that it does mean trans person by trans person, on an individual basis. If it meant situation by situation it would be redundant.

Case by case is nowhere in the EA for single sex exceptions or any of the others, it's only here in the stat code and in non-statutory guidance based on the code.

It's not a matter of interpreting it correctly, it's a matter of getting rid of it altogether and getting back to what the EA actually says.

Sorry, I am late back to this.

Recently we have used the new EHRC guidelines to bolster our 'case by case' decisions.

We decided that the case of a transwoman, born male, male bodied, was one we would deem unsuitable for inclusion in our service. We therefore would reject any and all applications by transwomen in the same basis as we reject applications from all other men. And we would signpost them to other services, even offering transport, food, clothing as we do so.

We had already revisited our T+C's a couple of years ago, when we had our one and only transwoman applicant. At that time we asked our incumbent clients what they thought and they all said no. We thought that was 'case by case' but were told, quite forcibly, by one woman, solicitor, victim of DV, that we were wrong and were in danger of traumatising our clients if we carried on in that vein.

The upshot was we changed our policies and she now works for us sometimes.

But it took her anger to make us realise that we had simply gone along with an incorrect interpretation of 'case by case', as given to use by the LA. They too are now looking again, though they never did have the sex and gender confusion they were quite vociferous about inclusivity. They seem to be having a rethink.

So I do have hope...

Ah ok Field I would let MN know on Site Stuff.

I’ve never used the app. I can only highlight one word at a time to copy but when I try and expand the selection it immediately highlights the entire page.

As Naomi Cunningham, a QC with expertise in discrimination law, said elsewhere:

"Being entitled not to suffer discrimination on grounds of gender reassignment is not the same thing as being entitled to be treated as the opposite sex”.

This statement sums up where the trans activists have misinterpreted the law. Not even the GRA gives entitlement to be treated as the opposite sex in all circumstances; its performance is strictly limited.

But the example of an exception given in the legislation is that of it being proportionate and legitimate to exclude a male to female transsexual from an all female assault victim counselling group.

There are multiple examples of exceptions. I see that as a clarification that sex is biological or in general based on having a GRC, but it might be reasonable to exclude those males too in this context.

I had always understood (but perhaps am wrong) that not discriminating on the basis of being transgender was in respect of someone of the same SEX, ie you couldn’t exclude a trans woman from a prostate cancer support group on the basis of them identifying as a woman.

Yes I think that would be clear discrimination on the grounds of gender reassignment.

(I’m finding it impossible to copy and paste on this new site version)

Really? I'm on the app which is glitchy as fuck but can still c&p.

(I’m finding it impossible to copy and paste on this new site version)

Re Crouton19. But the example of an exception given in the legislation is that of it being proportionate and legitimate to exclude a male to female transsexual from an all female assault victim counselling group.

I had always understood (but perhaps am wrong) that not discriminating on the basis of being transgender was in respect of someone of the same SEX, ie you couldn’t exclude a trans woman from a prostate cancer support group on the basis of them identifying as a woman. But now I can’t find any guidance on those lines.

Yes, this is correct.

From the Equality Act Codes of Practice post consultation report:
www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

vii. Various transsexual stakeholder groups responded to the formal consultation and also participated in the parallel consultation events taking place on the non-statutory guidance.

Feedback from the consultation events was incorporated into the employment and services codes where appropriate, particularly on issues of confidentiality, use of single sex services and the legal definition of transgender.

Then a bit later on:

e. Services, public functions and associations
• A number of concerns were raised about the exceptions, in particular the exceptions for charities, single sex services and separate services.
These sections have been revised as a result.

Press For Change, GIRES and a:gender (civil service trans org) are all named in the list of those consulted. Stonewall are there too but they were still a gay rights org in those days.

The image shows the relevant text from the version put out for consultation in 2010. 'Case by case' is nowhere to be seen. The original consultation documents are available on this archived web page:

web.archive.org/web/20100224003236/www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/

My guess is that 'case by case' has been mentioned at some point to refer to services provided and TRA organisations have misused it to refer to individuals.

I would be really interested to hear the talks from the event where she said this. Robin White spoke, as well Reindorf, and also Karen monaghan. So a variety of legal opinions. It sounds really interesting.

If it's ok to only say no to a TW in a female only space if you can argue sufficiently that the specific TW in question is too much of a risk?

Well we know how that goes.

What risk? Prove it?
That never happened. If it did, it wasn't that bad.
The women feeling at risk are the ones with the problem and need to get over it
The TW deserves a new chance
You let that TW and that TW come in so you can't say no to that one

And it becomes personal and impossible to argue.

Hence why it has to be blanket policy. Some things must be female only. TW are not female. And this is why even TW with GRCs cannot be in all circumstances treated according to their legal fiction. If it's yes to any male then it has been proven beyond all doubt it will be every male and it will never be possible to say no.

There is no respect or care for females evident anywhere from those driving this. There is no capacity apparent for reciprocation. Words like 'inclusion' are used only as leverage, not from any stable or truly held values. There are those who will throw the door open to the widest possible extent if permitted the smallest chink. And this is why we have and need legal protections: for when people will not respect the rights of others voluntarily.

Which would only make sense if the use of the exception were ‘males who have a history of sexually harassing women’. It’s not. It’s all males.

Exactly. As I said, it doesn't apply to men without a trans identity, they don't get a free pass into women's spaces for good behaviour and rightly so.

I think as pp said it's supposed to have a chilling effect so service providers don't use the exemptions in practice.

And why exactly would anyone self-IDing want to be judged on a 'case by case' basis anyway? Wouldn't that involve the kind of 'genital inspection' that supposedly is so very offensive? It seems very confused.

Female-only spaces should have a blanket ban on males. That's it. That's the case. It's got nothing to do with self-applied labels. It's about excluding the male.

I thought the 'case by case' concept came from a tribunal / court case (and not necessarily one which set a precedent) but I could be completely wrong.

By which I mean, that even if my Nigel is lovely, and I vouch for him, he's still excluded from female only spaces because he is male.

I don't see that there is any real basis for "case by case" when it comes to matters of risk, privacy and dignity. We don't run female only spaces on the basis that some men can come in depending on the circumstances and whether they are proven to sexually harass women in other cases.

Resister

It’s the only direction in which ‘case-by-case’ takes us. We know TW are male. They want that not to matter and only males who have been convicted of violent sex offences (and sometimes not even then) to be excluded.

‘For example, if a trans woman had a history of sexually harassing other women it may be justifiable and proportionate to deny her membership of a women-only society and the application of the exception under the law would be legal. However, if the same women-only society banned all trans women, it would be a breach of the Equality Act (2010) because the decision would not be proportionate, justifiable or taken on a case by case basis.’

Which would only make sense if the use of the exception were ‘males who have a history of sexually harassing women’. It’s not. It’s all males.