Telegraph: MoJ to ban transwomen (male to female) from women's estate - links with specific details

Thank you both for answering.

Anyway, to help this new
position along, please would anyone who has not done so sign the Sex-Matters petition to Parliament to update the Equality Act - to make clear that the characteristic “sex” is biological and not sex as modified by a Gender Recognition Certificate - that can be found on the petition site on Mumsnet, or at Sex-Matters.

It's true that legislation is a stronger option than a policy document in judicial review terms, but that is about it. If the government can justify it, it will be defensible. I think they will be able to do that.

You could legislate, but that would take time. So if you wanted to make a rapid change this is the way to do it.

It's a bit academic to say "but legislation would be discriminatory". It might be, or might not, depending on the form. That's where the Dr and I would disagree.

So, ^LexMitior* · Today 23:06
it would not mean what he says here, a blanket ban that can be struck down?
It would not be a policy document that would ‘not do it?’

Or will this be actual legislation like he mentions?

If you want to ensure with absolute certainty that no rapist makes it into a women’s jail, you need a blanket ban, and blanket bans can be struck down by courts. You need to legislate to have that ban in place. Policy documents, guidance, will not do it because the legislative framework is as it is and it is hooked on to a proportionality test.

@ScrollingLeaves yes in part that is it.

certainly a proportionality test! But it's how that test is applied.

The Government has decided that statistically, when it looks into it's prison population, and then looks at the percentage who are trans and sex offenders or violent to women that there is enough of a pattern for exceptional circumstances to almost never apply in practice. It has inverted what happened in Scotland and places risk assessment, btw, because of the harm these offenders represent to women in particular which has been objectively determined beyond a reasonable doubt by a jury which got them locked away in the first place.

That is legitimate. And defensible.

LexMitior · Today 13:59
This policy look defensible to me and on challenge it should be fine

@LexMitior, I was wondering about whether this policy will work because of what Dr Michael Foran said here at Question 27 at the Parliamentary committeee on January 23rd
committees.parliament.uk/oralevidence/12639/pdf/

Q26
Chair: Can I just finish with Lord Falconer? This could be a yes or no:
would it be helpful if there were a definition of sex in the Equality Act?

Dr Foran: There already is one.

Chair: There is an understanding of it. There is not a specific definition.

Dr Foran: Sex is if you are a man or a woman, and then the definition of man is a male of any age, and the definition of a woman is a female of any age. They have the definition. What they do not have is clarity.

Chair: The Haldane judgment interpreted that differently.

Dr Foran: Yes, it did. The Haldane—

Chair: Following the Haldane judgment, would it be helpful if that were
revisited?

Dr Foran: Absolutely. The issue with the Haldane judgment as it arises for all the purposes that we are dealing with here is that up until that point, we were really not sure whether or not sex in the Equality Act, as modified by a GRA, first, does modify the Equality Act for the purposes of the claimant, somebody who has a gender recognition certificate, whether they would be classed as male or female for the purposes of a direct discrimination claim. The Haldane judgment goes further than that because it says, effectively, that the definition of sex in the entire Act becomes legal sex. That means that single sex spaces become single legal sex spaces, and what it then means is your justification for exclusion will hinge partially upon whether or not the person is of the characteristic legally that that space is. The test is the same. It is still a proportionate means of achieving a legitimate aim, but whether or not you are legally the same person of a space or a service that is set up for that legal category, not biological category, will be relevant for determining whether or not exclusion is proportionate. The proportionality—

Q27
Chair: Lord Falconer, do you want to comment on that?

Lord Falconer of Thoroton: Michael has made it incredibly complicated. The Gender Recognition Reform (Scotland) Bill does not change the basis on which you make a determination on whether or not—

Dr Foran: No, it changes whether or not you can sue. The policy arguments will not be changed. You could introduce a policy that bans all males from female prisons if you want, but you could be sued for that. You could be sued for gender recognition discrimination. The question about whether or not you have a gender recognition certificate changes the nature of that suit that you make from an indirect discrimination claim to a direct discrimination claim, subject to the same justification test. Is it a proportionate means of achieving a legitimate aim? If you think a court will possibly come to a conclusion that the exclusion of this legal woman who is biologically male and that there is a less onerous way to achieve the legitimate aim of providing security then the policy will be struck down as unlawful. If you want to ensure with absolute certainty that no rapist makes it into a women’s jail, you need a blanket ban, and blanket bans can be struck down by courts. You need to legislate to have that ban in place. Policy documents, guidance, will not do it because the legislative framework is as it is and it is hooked on to a proportionality test.

A sobering read indeed, but an excellent piece. Thanks.

LexMitior · Today 13:59

This policy look defensible to me and on challenge it should be fine. Which means it can be tightened further and I expect it will be.

That's what I was thinking and hoping, in that they've gone for the "low hanging fruit," which no sane person could defend. They should be able to chip away at the rest of it, slowly and steadily, but I don't think that it'll be rapid.

It's not "UK Law". Changes are being made in England and Wales. This policy look defensible to me and on challenge it should be fine. Which means it can be tightened further and I expect it will be.

There is no advantage now to any politician advocating for greater rights for trans prisoners in the women's estate, at least in England and Wales.

Scotland has its own system. It's far behind and on the basis of the quality decision making there and the slightly pathetic oppositional "we can't possibly do what England does" then the problems will persist. If people are voting for the SNP as it is it will not change.

Law is about argument- otherwise lawyers would not have jobs. The SNP have a particular interpretation and since they are getting huge majorities why would they change? It works for them.

It's about unfettered access and total compliance, as far as I can see.

This.

And when the law is changed, I shall have no sympathy, because this needn't have happened. It was a quite staggeringly misogynist political movement that pushed this until it broke and then danced on the pieces. All it would have taken was reciprocation of care for women, some understanding and support of women's needs, some intersectionality and inclusive thinking, and willingness to seek answers that worked equally for all and it might have worked.

But all of this seems absolutely beyond the capacity of the movement as a whole, there isn't even evidence of faint voices somewhere in it. Which begins to lead the layman to the conclusion that this was never so much about wanting equality of access for T people as a bandwagon for the abuse and oppression of women.

No exceptions

If courts decide that uk law doesnt permit single sex prisons, i cant see any other option but for the law to be changed.

Which prime minister is going to stand up and say that there is no circumstance where women have sex segregate spaces?

I know they are saying this new prison policy will be regardless of a GRC, but they could be open to a legal challenge with the way the Equality Act interacts with the GRA.

More evidence that the GRA should be repealed, it is a dogs dinner of legislation, it's muddled and regressive and it's interaction with the EqA and any other legislation is causing problems - get rid of it.

Can't see this on the BBC yet.

Do we reckon they will just ignore it?

D'oh that a ban* on marriages...

Oops, I meant to add - slightly off-topic - that marriages and unbinding betrothal ceremonies for under 18s also comes into force today in England and Wales. (Child marriage is something else that "progressive" Scotland is an outlier on in the UK - NI has expressed a desire to follow England and Wales, but cannot because of the situation with the Stormont Assembly.)

Thanks, Rex. In force already, which just shows what is possible when the political will is there.

Getting full GRS may be good evidence of genuine, chronic and debilitating gender dysphoria, but the individual remains male.

Exactly. The diagnosis doesnt make them the opposite sex. It doesnt change how they look or how they behave.

So any policy that isnt outright sex segregated, is just a policy waiting for abuse to happen. Any change is dependent on press coverage, the political situation and politicians wanting to do something about it. In the meantime womens saftey and dignity is compromised in favour of mens wants.

Making small amendments to faulty legislate is never going to work more than just saying no to men is.

@Snippit
Does the absence/presence of genitalia make any difference? I don't think so. Getting full GRS may be good evidence of genuine, chronic and debilitating gender dysphoria, but the individual remains male.
And male-pattern criminality and behaviour persists if it was there before.

@DemiColon
I agree with @ScrollingLeaves.
Even if the men have not so far raped or assaulted anyone, I would assume that they would be very likely to take the opportunity if presented with potential victims who cannot leave. They may call it having sex, but because the women cannot escape the situation or object to his presence, it is rape/SA. Some inmates in the US and Scotland have boasted about making a transfer request in order to have access to women. And of course even deploying the threat of rape or SA against his female cellmate could enable a male prisoner to control her.
Remember that the majority of male inmates are in prison for crimes of violence. A man who has been violent or coercive in one way is very likely to be like that when it comes to sex.

As every prisoner is strip searched at induction, they wouldn't even need records. As long as the screws aren't blind!

I would imagine it will be a required question if a male prisoner requests the female estate, with proof required in the medical records of what surgery has taken place. Much as someone with a disability would be required to share their medical records to demonstrate the evidence to back up their request for particular accommodations.