LGBT Groups and the EHRC Guidance

I would think that you couldn't just randomly mix sexuality with gender identity as a group like that.

What you might get would be gay men or lesbians with a transgender identity, because they would fall under the sexuality element. And really, that is pretty much why the T began to be associated with sexuality in the first place.

Oh there you go, that's why I'm never unequivocal.

Sexual orientation is the protected characteristic. Not heterosexuality.

Which, frankly, to me, makes it even more complicated. So I'm not even going to try and do examples.

It's just like school, I'm gonna copy the answers of the girl next to me.

Edites to add that my post was in response to AnSolas explanation

Unfortunately what OP is asking isn't covered by the EA because "identities" are no a protected characteristic.

There is

• Sexual orientation
• Gender reassignment

Which could be used to set up a group, but would not apply to the far larger group that Stonewalling has led them to believe have a legal entity.

So LGB and GRC yes.

The rest of the rainbow initials no.

Although would love to see a Judith Butler explanation of how queer should be written up as a protected characteristic in the EA.

(hmmm have I got time to talk to ChatGPT)

Oh it's a nightmare. Because it's so tempting to think you should include someone because of something rather than not being allowed to exclude them.

It gets me every time. I totally grasp it, and then it's so elusive I lose it again.

But I think I'm right 😃 (I never like to be unequivocal about the equality act!)

It's partly, of course, because transactvism says you must include men into women only spaces because of their protected characteristic (of gender reassignment).

But the Supreme Court has now clarified that the only way they would be included is if that actually meant they were women, and no they're not.

Not even with a legal piece of paper that says they are. They're still not.

but lobbyists and activists have spent years saying the opposite.

Little wonder everyone is confused

A lesbian or gay group can exclude some trans people because the basis for the group is sex. Therefore a lesbian group can exclude trans id men but not trans id women because trans id women are female and trans id men are male.

Re: A bi group

I suppose it would depend if it were a single sex bi group. eg a bi-womens group could still exclude on the basis of sex and exclude trans id men but not trans id women because trans id women are female and trans id men are male.
A mixed bi group would be mixed sex anyway so I don't see how you could exclude anyone.

It's just easier to think of people as either male or female sex when interpreting the law rather than the nebulous concept of how they identify.

If you've labelled your group LGBT then you're being very clear it's gender ideology that is the driving force, so heterosexual 'spicy queer' etc is all part of the giant umbrella.

Who would you be needing to exclude and why? That's the only reason the act would matter.

By definition of the act/judgment many of the T people would in fact be heterosexual, this was a major part of the whole issue for those who wanted to be able to retain sexed based groups for gay and lesbian people along side.

In terms of OP's question though, surely the SC clarification wouldn't make any difference. Everyone wouldn't share a pc regardless of the outcome of the case.

I think you can have an LGBT group in the same way you can have a chess club. It's what the group is about, it's not a restriction on membership. You can't ban straight people from attending if they want to discuss LGB or T issues. Is that why groups always have an A for allies in there somewhere?

An LGB group can lawfully exclude trans people

Not if they're LG or B too though surely? As in really LGB in terms of sex, not straight men identifying as lesbians.

What you can't have is a group for, say, women and disabled people, because that would be unlawful discrimination against non-disabled men under the new guidance.

No, that wouldn't be unlawful discrimination against non disabled men at all, unless by disabled people you mean both men and women, rather than just women.

If you had a single sex group for women then it is just that, a SINGLE sex group for women whether they are able bodied, disabled, black, white etc etc. Being a disabled woman is not a subset of women. What all those women have in common is their sex group.

Men on the other hand are a different sex group whether they are disabled or not so can be refused entry to a womens single sex group.

However, if you had a group for just women and disabled people of either sex (I'm struggling to think why such a group would exist in the real world tbh) then it would automatically be a mixed sex group anyway because disabled people are not a sub class of their own sex.

If this is still confusing try replacing disabled people with black people in your original question:

What you can't have is a group for, say, women and black people, because that would be unlawful discrimination against non-black men under the new guidance.

Are LGBT groups now considered unlawful?

Only an extremist would want to shut them down. It could be argued that trans people aren't members of LGBT groups because of their sexual orientation, but they are often included because of a perceived common interest between the groups.

A lesbian group can be for same sex attracted women only.
An LGB group can lawfully exclude trans people.
A trans only group is lawful.

If it does turn out that some arsehole wants to shut LGBT groups down then a possible workaround is to set up separate groups for each characteristic, and have regular meetups.

@gayhistorynerd

You couldn't lawfully exclude a heterosexual of either sex or a homo/bisexual who wasn't trans on the basis of the PCs of SO or GR. In practice, crack on - terf lesbians and gay men would probably rather eat their own feet than go to an LGBT gathering.
(Plus I second Flirts' point earlier - what do you have in common?)

To answer that question, perhaps you could say it is a group for people who believe in GII. Assuming (not proven) that GII is a protected belief, you could restrict entry on that basis.

@soupycustard
He wouldn't have any protected characteristics so the group would be arguing that they are a group of individuals with protected characterstics - albeit different ones! - under the Equality Act.

Not correct all sexual orientation are covered.

So the heterosexual non-trans male has a PC of Sexual Orientation 12.1(b) but not Gender Reassignment.

12 Sexual orientation
(1)Sexual orientation means a person's sexual orientation towards—
(a)persons of the same sex, [ L or G ]
(b)persons of the opposite sex, [ S ] or
(c)persons of either sex [ B ]

(2)In relation to the protected characteristic of sexual orientation—
(a)a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation;
(b)a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.

Yes i agree with others that you couldn’t use the EA exemption as you have mixed sexes and not everyone is either trans or same sex attracted.

Sorry I meant that to say “and not everyone is same sex attracted as you also have trans”
So basically heterosexual people could also apply to join as they would fit a characteristic you have included eg. male or female, same sex attracted or opposite sex attracted

The group could be for LGBT identifying people as well as their “allies”. That way you are allowing anyone with an interest in LGBT matters to join and you would not be relying on excluding anyone based on PCs. If someone joined just to be abusive or disruptive you could get rid of hem the way the chess club could get rid of someone who continually tips the chess board over when they lose.

I suspect the instinct for most queer groups is to be as inclusive as possible so I can’t see there is an issue.

I am curious as to if they could exclude lesbian TERFS as I am one but I would choose personally to self-exclude if I had a lovely lesbian only group to attend. This is now possible under the clarification of the EA.

TBH this is the current state of play and I don’t feel that I am missing out any. So worry not, and crack on.

The heterosexual man has the protected characteristics of sex and sexual orientation like everyone else does.

I agree with your analysis. I don’t think you could legally exclude people (assuming >25 ppl) for not being one of LGBT. Because if including heterosexual T, you are losing the claim to have a legitimate need to exclude heterosexuals. And if including non-trans LGB, you are losing the claim to need to exclude non-trans people.

It is a problem in theory, but I think that is the law. Whether it’s a problem in practice is another matter. Do many non-trans straight people try to join LGBT-only groups? And would they have been excluded anyway if they self-identified as included?

Yes I see what you mean @Datun. I'm looking at it from the perspective of a heterosexual non-trans male. He wouldn't have any protected characteristics so the group would be arguing that they are a group of individuals with protected characterstics - albeit different ones! - under the Equality Act.
I may have got myself in a muddle though because the general whataboutery of the last few weeks has put me in such a fury that my brain is refusing to engage in anything more esoteric than 'there are 2 sexes and males can't have female rights' 😂

Yes i agree with others that you couldn’t use the EA exemption as you have mixed sexes and not everyone is either trans or same sex attracted. So you can certainly go ahead and have the group but the only issue is that any heterosexual person could also apply to join and if you said no you would be discriminating against them

But isn't the discriminatory aspect about the criteria for exclusion, not inclusion?

You have to treat the heterosexuals the same. You can't treat one heterosexual more favourably, because he says he's the opposite sex.

It's the same argument that says you can't let men into a woman's space, even if one of them says he's the opposite sex.

@Datun I guess any male heterosexual would have to claim the right to join under the protected characteristic of gender reassignment? And then if members of the group doubted he was trans, it becomes a question of evidence if it goes to court? Tricky when trans is 'cos I say so' but that's a problem for TRAs to work out!
@PriOn1 I suspect you've hit nails on heads there in terms of the reality of the situation.

Would it mean you might struggle to exclude regular heterosexuals, say?

Could a male heterosexuals say but you've got male heterosexuals in there in the shape transwomen attracted to women. So you have to let me in too.

So you can have an LGBT group, but you might be accused of discrimination if you don't allow other heterosexuals in there.

Another interesting point: the only reason there needed to be clarification of the EA was because male people were forcing their way into women’s groups and lesbian groups and those men were claiming women and lesbians could not legally exclude them.

I suspect you can have any grouping you like, so long as you are not a dominant group using it to exclude a weaker group, without reason and to the detriment of the weaker group.

The only requirement then is that those excluded, who suffer no detriment from that exclusion, are decent human beings who respect the rights of others to meet in their absence

I guess if you have an LGBT group and lots of straight people insist on joining, there wouldn’t be much you could do, but those people with blue hair and spicy straight relationships are already included under Q so chances are, OP that your groups won’t change much at all.

I'd agree with this - LGBTQ+ is a huge diversity of people some of whom will be exploring etc, so who would you be looking to exclude and why?

The point of the SC judgment would be that lesbians can meet as women only, regardless of how men identify, and cannot be called discriminatory or harassed or refused services without this getting legally really, really problematic. <see the slam dunk JKR offered to fund yesterday.>

IANAL

Asking the question another way, what is the challenge LGBT groups share that justifies their exclusivity? I think that is hard to answer, but perhaps that points a way forward.

Because while you can't discriminate based on sex or same sex attraction because these are PCs, my understanding is that you can discriminate on things that aren't PCs as long as you aren't accidentally discriminating against a PC by doing so. (Regular Goth Night Out for the office goths for example probably OK, Regular Senior Managment Footy Day might be on risky ground if women felt excluded)

So finding a non-PC common interest or need would presumably be the key. Probably would not exclude non-LGBT people, but the asusmption would be that such people either had no interest in the thing, or had a genuine interest in whch case presumably they'd be welcome.

Off the top of my head, you could have a group for LGBT political activism as long as it didn;t exclude non-LGBT people, LGBT history interest, perhaps gender-nonconforming social and support, Glitter Party Night for people who just love a Pride-style party, Queer Beers for anyone who identifies as queer which isn't really defined as anything legally.... I think the key thing is you have to do it genuinely, you can't just use that as a mask for really excluding people based on their sexuality.

And if the LGBT groups really can't find a single thing their members share around which to regroup, that does rather raise a question doesn't it?