Supreme Court - are single gender spaces still allowed?

I think I'd go for breach of regulations because they haven't provided men's and women's toilets at all. All the toilets are mixed. Croft can say 'I'm only a man for the purposes of the EA, not for any other purpose'. But would that work?

Interesting analysis from Maya Forstater. And no I’m not implying that she has the last word on it either. https://a-question-of-consent.net/2020/08/16/croft-v-royal-mail-between-a-rock-and-a-hard-place/

I ask again, if you are at work and a post-op transwoman is using the women's toilets what specific EA2010 claim do you bring?

Harassment

26Harassment
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B's dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Why would it matter whether he was “post op”, exactly? Where is it said that would be necessary? You seem to be relying on your personal what I reckon based on a throwaway “of course you’ll be able to use the ladies loo someday when you’ve had your “sex change” remark.

Sexual harassment.

Single sex spaces must exclude all persons of the opposite sex.

Yes, if they are a service provider providing a single sex service pursuant to the exceptions in Sched 3. These are not relevant in a work context.

Male people with the PC of GR, even with a GRC remain male for EA purposes.

I agree, but that's not relevant to this particular issue.

The EA applies to workplace toilets - which is the point you disputed.

There is no single sex provision that applies to work toilets. Yes, you can obviously sue for direct sex discrimination if your employer if your employer only provides toilets for men and none for women (as in Miller) but that's a completely different kettle of fish as the sexes are being treated differently.

I wish it was as superficial as you believe it is, but it's really not. Again, for the love of god, can anyone who disagrees with my take tell me what specific claim you would bring if you were unhappy with a post-op transwoman at work?

Single-sex things which exist (irrespective of their legislative or other origin) as a permitted derogation from the general rule against sex-discrimination (and this surely means all of them!) must be single-sex in order to continue to enjoy the derogation.

Croft's finding, that human rights law requires transwomen of a sufficient degree of seriousness to be allowed to use the women's toilet at work, is in conflict with that. If he is allowed in, then so are all the other men, for what legitimate aim could justify their exclusion that does not also apply to him?

There must be ways to fix this, that protect both the dignity of transwomen and the need for at least some single-sex provision.

Amen 🙏

I wonder when the EHRC will take that page down.
It's clearly incorrect now you'd think they'd take it down PDQ.

The EHRC intervened on behalf of the Scottish Government. They got the law wrong. In her post HH is referring to Schedule 3 para 28 which refers specifically to the PC of gender reassignment. We now know that the EHRC guidance which you have linked to above is incorrect. This is what the EHRC guidance said and what HH appears to still be saying about SSS. We now know that this is incorrect.

"However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not."

"Gender reassignment provisions in the Equality Act (Schedule 3, paragraph 28 of the Equality Act 2010) If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions. Under these provisions, your approach must be a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users."

Typing on my phone with one finger on a train so I will be succinct.

Self ID is unlawful.
Croft is superseded.

Male people with the PC of GR, even with a GRC remain male for EA purposes.

The EA applies to workplace toilets - which is the point you disputed.

Single sex spaces must exclude all persons of the opposite sex.
Therefore a male, with or without a GRC, at whatever stage of transition or none, cannot use single sex toilets and changing rooms designated for the use of women at his workplace.

The End.

That’s a really interesting part of the judgment. I wonder if anyone argued for this? I’m not aware that they did.

There are so many gotchas doing the rounds with photos of bearded women captioned with “coming to a ladies changing room near you”.

Clever of the SC to preempt this difficultly and save service providers from a whole new era of ambiguity and being litigated against by activists.

Although that’s not what HH was talking about in her post. She was arguing that service providers needed to apply the proportionality test to keep TW out of SSS which is incorrect.

Croft was after the 1992 Workplace Regs. Croft was legally male and yet post-op would have a right to use the women's loos regardless.

I agree that if there is anything in Croft which conflicts it will be superseded, but nobody can actually point to anything specific in Croft which is actually in conflict. If you think you can, be my guest.

It is very well established that men’s and women’s upper body strengths are very significantly different. It’s one reason for differentiated sports categories, and also why men are able to overpower women physically if they choose to commit assault or rape.

Just because a comparison between a very weak man and a very strong women could result in the women winning out doesn’t negate this fact when making rules about each sex class.

It does women no favours to pretend that physical differences are not real. It is important to remember that lesser physical strength does not mean less intelligent, less valuable, or less important as a human being.

But don’t pretend the difference in upper body strength between men and women is a pretence invented to keep women down.

I ask again, if you are at work and a post-op transwoman is using the women's toilets what specific EA2010 claim do you bring?

You cannot rely on the single sex service exception for service providers in Schedule 3, because we're not in the context of service provision.

You cannot rely on direct discrimination because men can also have post-op transmen in their loos.

All you can do is argue that it's indirect discrimination on the basis that women are more likely to want/need single sex toilets. But unfortunately it's not likely to work when A) the risk of voyeurism from a post-op transwoman will be seen as being low, B) there will be cubicles so outside of voyeurism under/over the stalls it will be seen as a private space, C) although Croft was decided on the grounds of EU law (because the HRA wasn't in force when the issues occurred) it's heavily implied that the post-op transwoman will have rights under the HRA to use the women's toilet. There will be women who won't want to be in an enclosed room with someone who is biologically male but I am really not sure that will be enough.

I welcome any alternative analysis but I think we remain screwed on this front 🤷‍♀️

I agree that is what the pp is saying but it's not a grey area because the EA does apply.
As do the 1992 Workplace Regulations which predate the GRA anyway and refer to men and women.

Anything in Croft which conflicts with their lordships' finding is superseded.

The ruling covers this. The single sex services from which a man who identifies as trans can be excluded from on a case by case basis are those for men, and vice versa.

A shame that Upton doesn’t have a GRC.

Do we know if the Darlington Nurses chap has a GRC? I can’t imagine that case will get as far as the court room now but if it does it would useful to hammer the final nail in that coffin.

I think pp is making a flimsy case that men with GRCs can still use women only spaces in the workplace and I’m not convinced by it but I do see that it’s a grey area until specifically addressed in law.

It’s the definition of women in the Equality Act. The confusion is when other laws are added in, like the GRA and the Health and Safety at Work Act, which the judgment was not ruling on.

How does the definition of woman have no bearing? Doesn’t it rule out self ID?

They clearly aren’t saying the same thing. HH is referring to Schedule 3 para 28 which is an exception specifically dealing with those with the PC of gender reassignment. HH is saying that single sex services can only lawful exclude those with a PC of gender reassignment if it is a proportionate means achieving a legitimate aim. NC is explaining that a single sex service, by definition, cannot include any males or it ceases to be a SSS.

The exceptions that deal with allowing service providers to provide services to men/women etc are at Schedule 3 paras 26/27 but this is not what HH is arguing about.

I wouldn’t be interested in a single gender identity group, not least because I don’t have a “gender identity”, but surely if people want one they can set one up. It’s more the providers of services needing to make provision for single sex services when appropriate and not misrepresent mixed sex services as single sex.

This is governed by the existing rules on 'associations' (clubs etc, and also applies to shortlists, prizes, and the public boards the case was originally about). They are permitted to be single-sex, the specific guidance about whether one can or must include or exclude certain groups on basis of safety, fairness and privacy (eg in sport) does not apply to them, but in any case transwomen must be excluded (because it's got to be single-sex to be covered by the rule that made it 'permitted' iyswim).

It logically follows that the situations governed by the specific guidance must also always be single-sex and never single-gender, but this is not coming through very clearly and is being mis-reported altogether by Harman and Sumption etc who really ought to know better.

You are right - the ruling confirms freedom of association for women, men lesbians and gay men!