Supreme Court - are single gender spaces still allowed?

PlumHam

Interesting analysis

I think offering single gender only would potentially put an organisation at risk of indirect religious and racial discrimination. The failure to provide single sex would have a disproportionate effect on those people who for religious or cultural reasons would not want to share spaces with the opposite sex.

It’s a complex area.

@JanesLittleGirl Chess. Men consistently outperform women. It has been suggested that this is because men are less risk averse than women.

Can you elaborate how being less risk averse would lead to better performance in Chess? Is there a citation for this?

E-sports. See Chess above plus men's shorter response times to stimuli.

Regardless of whether or not this is actually true, are you aware that countless men have put forward arguments like this in the past to be sexist against women? How do you reconcile that with your own perspectives?

The law:

• direct sex (=biological sex) discrimination is not allowed (EA 2010 s 13)
• indirect sex discrimination is that which is NOT a proportionate means of achieving a legitimate aim (s 19)
• "sex discrimination" means either direct or indirect sex discrimination (s 25)
• providers must not sex discriminate (s 29) , i.e. neither directly nor indirectly sex discriminate
• providers may separate services by sex if (Sch 3 para 26), or provide services to only one sex (Sch 3 para 27), which would otherwise contravene s 29, if it is proportionate means of achieving legitimate end, or if person of one sex might object etc to presence of other etc (for 'only one sex provision')

Therefore:

• excluding men (=biological sex) from women's toilets and women from men's toilets is direct sex discrimination but is lawful as it is a proportionate means of a.l.e.
• excluding people who 'identify as male' from women's toilets is not direct discrimination, because not everyone who identifies as male is a man. However, it is clearly indirect discrimination, in that it overwhelmingly would affect men.
• indirect discrimination is only indirect discrimination if it is not a legitimate means of achieving a legitimate end. If this is the case, Schedule 3 (exceptions) is not engaged.
• In general service providers are not required to discriminate. However, under EA s 40A, employers have a duty to take reasonable steps to prevent sexual harassment of employees. Harassment occurs when a person engages in degrading conduct related to a protected characteristic. Allowing men (biological) in women's toilets (etc.) at work is likely to violate 40A. However for a service-provider that promotes itself as trans-inclusive, it might be that they would choose to advertise "trans-inclusive toilets" to their customers, that is "those that are open to people regardless of sex who identify with certain gender identy(ies)". This cannot be justified under Schedule 3, since Schedule 3 is strictly related to separation by biological sex. However, insofar as this is indirect sex discrimination (since it mostly affects males), it could be justified in a similar way. Single-sex facilities are pursuant to the legitimate end of privacy and dignity of service users, whereas single-gender facilities could be promoted on the basis that it allows people to use the toilets that they feel comfortable with.
• Therefore, IMO service providers may choose to offer single-gender facilities, but for employers this not advisable. Employers may need to provide unisex (single user) facilities to cater for those who are biologically female/male but do not feel comfortable using that service. For service providers there is a clear right to discriminate on the basis of biological sex, but there is no duty to do so. In practice, communal changing facilities open to both sexes don't make sense, so the default approach should be "biologically male", "biologically female" and "single-user", however it seems possible to me to offer "single gender" facilities, particularly if single-user facilities are also offered to safeguard the privacy of those who do not feel comfortable in single-gender (mixed-sex) facilities.

@shuggles@GetDressedYouMerryGentlemen

Chess. Men consistently outperform women. It has been suggested that this is because men are less risk averse than women.

E-sports. See Chess above plus men's shorter response times to stimuli.

Useful summary of the judgement here. The Supreme Court’s ruling on trans women in detail

https://www.thetimes.com/article/a0378c24-cb2f-4278-912b-202aedc9d78c?shareToken=85ce4ccace52c9176bdf3bd071742c4c

So chess and e-sports, both of which I would class as games rather than sports precisely because they lack a physical element. That doesn't prove that "most of the male/female gap is due to culture rather than biology". It proves that there is social/cultural elements that sits as another layer over and above the physical advantages of maleness when it comes to strength speed etc. Why don't trans men out compete women if thinking male is all it takes?

@GetDressedYouMerryGentlemen Ermm perhaps that why I didn't include chess or e-sports

My point stands then.

although there is possibly some advantage in some eSports to the lower heart rate if they use a dynamic controller

I'm calling Poe's law on this.

Ermm perhaps that why I didn't include chess or e-sports 🤷‍♀️ (although there is possibly some advantage in some eSports to the lower heart rate if they use a dynamic controller).

@GetDressedYouMerryGentlemen There are certainly cultural factors at play but there are male physical advantages in in archery (lower heart rate, great draw strength), darts (as above re heart rate, also greater reach), snooker (as above again)

Chess?
E-sports?

Does having a lower heart rate help men when moving a chess piece, or a mouse...?

There are certainly cultural factors at play but there are male physical advantages in in archery (lower heart rate, great draw strength), darts (as above re heart rate, also greater reach), snooker (as above again) but the societal aspects prove that men should never be welcome in women sports because even if reducing testosterone eliminated all physically differences (which it doesn't, heart size, lung capacity, blood volume, bone density, q angle height, reach, foot/hand size and many others don't magically alter on transition) those raised male have the social advantage of sport being a 'bloke' thing.

@CheekySnake It's not because women aren't training hard enough, but most of the male/female gap is due to culture rather than biology. There are many more boys/men who get into sport to begin with, and men's sport receives more funding to begin with, which inevitably leads to better performances and better scores.

China is one of the countries that always dominates the olympic medal tables, but this is not evidence of Chinese genetic superiority over the rest of the world. It's a consequence of culture, huge amounts of funding to support athletes, and having a population of over 1 billion people (which increases the likelihood of finding a very talented athlete).

Please also note that men also dominate sports where there would be absolutely no possibility of having any kind of physical advantage- archery, darts, snooker, chess, and 'e-sports'. This is evidence that biology is not the main factor in men achieving better outcomes in sport.

Ok, I accept that.

Can you explain why the fastest sprinter is always male? The fastest middle distance runner? The fastest marathon runner?

Why the world's strongest man is always stronger than the world's strongest woman?

why the human who can jump highest is always a man?

Why the fastest swimmer is always a man?

Why the person who can throw the furthest is always a man?

The person with the fastest serve in tennis is always a man?

Is that because women don't train hard enough?

@shuggles
But why isn't there just one mixed category?
Hint because in contact sports it would be dangerous for women to compete against men and in almost all sports they would never win. The few sports where there isn't an advantage in being male e.g. equestrian events there aren't separate events for men and women. Why isn't this the case in athletics, swimming, cycling etc? Because men (as a class) are stronger and faster than women (as a class). If this wasn't the case sometimes the world record for athletic events would be faster/further/higher for men and sometimes it would be faster/further/higher for women but the male record is always the fastest/furthest/highest.
High school boys regularly beat the women's olympic times this isn't because good high school boy trainer harder that the absolute pinnacle of women in sport it's because male and female bodies are physiologically different.

@CheekySnake Your example is just one example. If mine doesn't count, then neither does yours, right? It's anecdotal evidence.

Yes, that was my point.

If it is, then why, for example, was someone like Serena Williams not playing (and winning) in men's tennis, where for a long time prize money was significantly more than in the women's?

Women are not permitted to compete in men's tennis, just as men are not permitted to compete in women's tennis (disregarding transgender people here as Serena Williams is not transgender of course).

Rather it is more likely to make redundant all previous rulings/cases, given It was the advent of the GRA that created the legal fiction of certificated sex in the first place.

Well, if that turns out to be the case then it it will have to be put to examination in a court of law. I'm pretty sure there will be many attempts to subvert and get around the ruling.

Provisons for single sex spaces is often predicated, in the first instance, on the equality act. It would be a foolhardy person that decided to waste further time trying to challenge that; plus it would become even more clear than it already is, in the court of public opinion, that the trans lobby cares not one bit about the dignity or integrity of women and girls.

Your example is just one example. If mine doesn't count, then neither does yours, right? It's anecdotal evidence.

So we need to look at men and women as a group. Yes, there are a small number of women who are stronger than a small number of men. No-one is denying that. And yes, everyone gets stronger with training. Again, no-one is denying that. We are in agreement there.
But every single study that has ever been done shows that men as a group are physically stronger than women as a group. The fastest human has always been a man, over all distances. The strongest has always been a man. The one who can throw furthest, jump highest, hit hardest: men. Every single time. I'm sure you'll agree that's true.

The problem with the idea that women just need to train to be stronger than men is that it suggests that women could be physically equal to men if they just tried hard enough. Do you think that's a fair or reasonable assessment? Is training alone enough to balance things out and explain the overall differences between men and women? If it is, then why, for example, was someone like Serena Williams not playing (and winning) in men's tennis, where for a long time prize money was significantly more than in the women's?

I don’t think that’s right. The Supreme Court said that, in the context of the Equality Act, ‘woman’ had to mean ‘biological woman’ because of various uses of the term in that Act and the specific consequences if it didn’t, and that this was sufficiently clear to override the default position under the GRA that a person’s acquired sex under a GRC is their sex for all legal purposes. It’s a separate question whether uses of the term woman in a different Act would override the presumption under the GRA.

@Grammarnut But protections in law about weights women can lift, what they can lift when pregnant, post-partum etc are there to protect women. And women need these protections.

Those are HSE guidelines, not laws.

Also, I was wrong to agree with you about jobs being equally dangerous for men and women because it's not true that if a job is dangerous for a woman it is dangerous for a man.

I didn't say "equally" dangerous. I said that jobs that are dangerous for women are also dangerous for men, but I didn't use the word "equally."

But generally men have greater upper body strength and can lift heavy weights. Some men can't some women can, but the general trend is that men are stronger than women as far as upper body strength goes. Of course, if a woman can do such a job there is no reason she should not. But protections in law about weights women can lift, what they can lift when pregnant, post-partum etc are there to protect women. And women need these protections.
Also, I was wrong to agree with you about jobs being equally dangerous for men and women because it's not true that if a job is dangerous for a woman it is dangerous for a man. Women's physiology is different, so much so that the way men are taught to lift heavy weights is not safe for women, so a job can be fine for a man but dangerous for a woman if the differences in their bodies is not taken into account.

Well, neither do I or most other men, but I certainly don't think you should have to!

@Annascaul Your stance is actually nonsense.

No, it's not a nonsense stance.

Your perspectives are outdated. It is wrong to think that men should simply accept danger and ill-health as a fact of the workplace.

If there are jobs that are too dangerous for women, then that same job is too dangerous for men.

Hence why I say that there are no jobs that men can do that women can't do; because men shouldn't be working dangerous jobs to begin with.

@CheekySnake I arm wrestled with my 17yo son this week. I go to the gym regularly and lift weights. The heaviest thing he lifts is an Xbox controller. He beat me easily and with barely any effort. I couldn't move his arm at all.

That's one example. When I hadn't done any exercise for a long time, I found that I was physically weaker than my female colleagues. For example, they were able to open bottles that I couldn't open.

If a man or a woman doesn't go to the gym or do exercise, they will be weaker. Conversely, any man or woman who goes to the gym will build physical strength.

Your stance is actually nonsense.

@Grammarnut Don't be daft. Men have greater upper body strength. They can lift things more easily than women.

Women are also capable of lifting and moving things. All people have different capabilities, and no one should be lifting more than they are capable of (as it can cause injury, as we both know).

There is no reason why a woman, in principle, should be excluded from a job that involves lifting things solely on the basis of her sex. If a woman is capable of lifting the weight required for the job, then she can do the job.