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

From the "TransActual" website, their interpretation:

Similarly, trans women are entitled to be treated the same as any other woman and to access women-only spaces. Under the law, exceptions to this may be applied on a case by case basis if it is shown to be proportionate and justifiable to do so. The legal bar for what is proportionate and justifiable is set very high and is rarely challenged. 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.

www.transactual.org.uk/equality-act

Indeed.

I suspect the point of focus on case by case being interpreted as individual person by person, is that it makes it time consuming, personal, full of precedents and therefore practically impossible to use an exception/exemption. Which is how it's worked functionally, to the detriment of females.

The case you make that such an exclusion is proportionate and in pursuit of a legitimate aim could be made once, or every time. The outcome is the same.

TRAs (and their captured government legal advisors) have long claimed that blanket rules aren't permitted and it depends on the person as to whether an exclusion would be proportionate and for a legitimate aim.

‘inclusion of males in female spaces that should be done on a 'case-by-case' basis per individual person.’

What do they mean by this? ‘Case-by-case’ or all at once, the outcome is the same. For a space to legitimately be using the exception, it must use it for everyone who has that characteristic.

So if you choose to exclude everyone over the age of 24 from a service (and you can), the only test is whether the person is actually any older than 23 years 364 days old.

If you choose to exclude all females from a service, including legal ‘males’ who have acquired that status through successful application for a GRC (and you can), then the only test is whether the person you are excluding is a female.

The case you make that such an exclusion is proportionate and in pursuit of a legitimate aim could be made once, or every time. The outcome is the same.

What does case-by-case give you that a blanket rule doesn’t?

The Code needs to go back to the primary source, the statute.

As far as I remember it, the original Statutory Code of Practice for service providers was released in 2011. The part of that Code dealing with single sex spaces seems to have been written with the influence of trans activists. Now that the guidance has been reviewed and revised to align with the Equality Act 2010, the Code has to reviewed and revised to align with EqA also.

For example, the original code refers to instances of inclusion of males in female spaces that should be done on a 'case-by-case' basis per individual person. This is a misreading of the EqA, which makes no reference to 'case-by-case' at all.

Hopefully it will clarify some of those supposedly grey areas! Given recent EHRC publications I doubt it will make them worse!

Yes, saw this, and also some TRA accounts tweeted on it as well.

Two positions:

1. The Codes of Practice needed to be updated because they didn't sit well with the Equality Act (and the non-statutory guidance was just updated first).
2. The recent update to the non-statutory guidance was unlawful because it contradicted the Codes of Practice.

But I can see why this upsets the many people who have been misled about the law. Stonewall has a lot to answer for.