TNBI job ad for Somerset and Avon Rape and Sexual Abuse Support

For people who think there's a problem here, note that the Equality Act is civil law, not criminal. In order for there to be an issue, there would need to be a victim who has suffered discrimination, or a hypothetical future victim.
Who would this person be and what claim would they have?

In the case of a job advertising for "women or transwomen only" this is clear - an otherwise-qualified man (who is not trans) is being disadvantaged because he is being disqualified on account of his sex, contrary to the Equality Act.

In the case of a job advertising for "women only" our hypothetical man would also be disadvantaged but - assuming there is a genuine occupational requirement - this is permitted discrimination.

If you can't identify a hypothetical person who would be able to bring a claim in this case - and I'm confident you won't be able to - then there can be no legally valid claim against the employer, despite their mangling of the law.

I think you're mixing up 2 things: the people the group supports, and the legal recruitment process.

Great, have a TNBI support group - i don't think anyone here would argue against that as long as women also have appropriate provision.

But however good the cause is, their recruitment process needs to operate within the law, same as everyone else.

Laws don't work when some special people are given dispensation (or more accurately just decide to) to break them.

If they don't like the law, lobby to change it.

Edit for typo

I think that in this instance its important that the group look at who they are trying to provide a service to.

Males or female?
Will that or should that change the sex of hire?

Sexual assault circumstance
Will that or should that change the sex or their attitude to sexual orientation of hire?

Etc

IOM where organisations have claimed that mixed sex groups are single sex it is better for every person who will use the service (more so for that specific element of the service) that the provider has actually worked out what they need and what would be nice to have in the idea hire.

Organisations who have a staff/service user conflict tend to be skewed towards stopping the "long term" problem which is backing the employee point of view. Which is why a service provider refused to provide any SSS.

The ad shows that either the board/HR dont understand the Act or that they do and choose to misuse the Act in a very dishonest way.

They are perfectly allowed to say "only trans or non-binary". Just like they can say "only qualified accountants" or "only vegetarians" or "only blind people" or "only people scoring 70 or more on our aptitude test".

The rules are:
1 - You can have any requirements you like when hiring, except
2 - You can't require something that would discriminate against people with a protected characteristic (age, sex, race, etc.), except
3 - You can sometimes if it's a genuine occupational requirement and you satisfy some strict requirements

Hiring women only would break (2) so you need to demonstrate that you satisfy the requirements in (3) to be able to do it, i.e. there's a genuine requirement, it's a proportionate means to a legitimate aim, etc.

Hiring women or transwomen only would also break (2) but would not satisfy (3) so you can't do it.

Hiring non-binary only doesn't break (2) so whether or not (3) applies is irrelevant. It's fine regardless.

The job advert is ineptly written by mentioning (3) but it doesn't actually matter. What they're trying to do is entirely okay.

They pulled the EA10 in by quoting it

This post is subject to an enhanced DBS check and open to trans, non-binary, intersex or gender variant individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).

The organisation can end up reorganising the hire process to employing the same person but the ad open them up to being sued.

Plus GI is not a recognised PC
Where GC has been recognised as a PC the courts have made a careful point in saying they are not "mirrored" belief/ two sides of the one coin.

I agree the job advert shouldn't cite the EA
Also agree its a good thing- necessary even- for people to receive support from counsellors/therapists who have insight into their particular circs, maybe even sharing characteristics
We have always said we support 3rd spaces/services which would sit alongside single sex provision

I don't agree we should nit pick or somehow go after an organisation that is citing the EA incorrectly on the grounds that 'they did it first'

There isn't an undifferentiated 'they' and the excesses of transactivists shouldn't be used as a stick to beat organisations who are finally doing what we want.

Actually I think anyone could apply for this. If I went along (without changing a single thing about myself) and said I was non binary, what they going to do, say I'm not?

Looks likely that this is absolutely illegal and discriminatory. I don’t think it’s comparable with allowing transwomen (men) into women’s rape crisis centres. The issue there is not that they are trans, but that they are men, and that can be deeply upsetting to women who have been attacked by men

That said, if the understanding is that trans and non-binary victims find it helps them to heal better when they are supported by members of that community, then that is obviously the best approach. Surely this is best managed by using a ‘preference will be given to those with experience of…’ clause

I’m really not sure how someone with a DSD fits into that!

I don't think anyone here has the faintest problem with there being a trans employee available for trans clients, great. There should be a wide range of provisions with all needs being equally met.

The ad is very likely illegal based on the great explanations above.

The nice and generous view of well it's in a good cause so is it really necessary to make a fuss, just let it slide - sadly no, it can't. The time of good will and generosity, and being able to tolerate a bit of rule bending in a good cause is buggered, and it was the trans activists who buggered it. For it to work would require reciprocal generosity, tolerance of women only resources without them being gleefully and obsessively targeted by activists to capture them for men and wreck women's access, (and wanting to destroying it if unsuccessful as if they can't have it no one can, in the manner of a spoiled and spiteful child); and for the slightest of loopholes to not be a means by which trans activists and this political lobby force their captures and assaults on other people's rights.

The law now has to be rigidly stuck to.

Because age is a protected characteristic. Being not-trans, not-non-binary, not-'intersex' and not-'gender diverse' are not protected characteristics, so the Act doesn't apply.

You could make an argument for this being discrimination in favour of candidates who believe in genderism, but that is justifiable as a genuine occupational requirement under Schedule 9. Although I'm sure that's not what the employer has in mind, given that they don't think of genderism as a belief system!

The are saying "only" .
Its the same as saying we will only hire if you are over 18 and under 30 only.

There is no lawful reason to excluse a 40 year old from the job.

It's not unlawful, it's just incorrect They're free to require people to be trans or non-binary without invoking the Equality Act since doing so is not illegal discrimination.

They could equally well say they were invoking section 123 of the Road Traffic Act 1988. It's ignorant, silly, and shows a misunderstanding of the law, but none of those things are illegal.

Agree - but was having a bit of a ground hog day.

And certainly think if he has the time if he listed on his Twix account every time he sees an ad like that.

But this is make me think if only there was someway to compile, from the many threads about this on FWR, the relevant advice.

I tried to use AI search to do this, but it wasn't clear which threads were just discussion as opposed to which have actually facts / advice.

I am not sure why this is even being asked.

Even those within the funded charity sector knows this is totally wrong application of the Equality Act 2010 Schedule 9, Part 1.

And was wrong long before the Supreme Court ruling.

And groups such as the WRC have posted information about this. Cant be bothered to find link but did post it as a thread topic a while ago.

But suspect as it is within the Bristol orbit that they have decided to ignore the advice. And if they are getting local funding doubt that the Council will do anything.

They are just being really stupid. Or obstinate.

If anyone can be bothered, you could contact Rape Crisis (the federation) and point out it doesn't help their credibility to have a listed support group acting illegally.

https://rapecrisis.org.uk/find-a-centre/?centreq=Somerset&lat=&lng=&placeid=

Also dont understand why some stray male is posting about this on Twix.

Or if he is genuinely interested who could just monitor all voluntary and charity sector groups and provide a list each day.

He will find there are many.

Talk about groundhog day.

They could just advertise the post and say that they want applicants with experience in counselling the demographic they are trying to serve. It's unnecessarily complicating matters to try to restrict access to people who have characteristics some of which are protected, or could be, and some of which are not, or which are not recognised in law. And to spuriously claim to be relying on an exception in the Equality Act just puts the cherry on top.
Just advertise the job, people.

ETA:
Didn't RTFT so a bit of cross-posting - sorry!

The problem is the ad is not lawful and opens the organisation up to a financial loss.

In real terms they should have gone with the PC Gender reassignment and added in that the person needed to have experience in running groups with the specific demographics.
They should remove the ad and rework the hire criteria so that they get the same results and the same list of applicants in a lawful way.

It highlights a HR weakness in that they do not understand why the exemption is there and for an group which should be using the exemption daily within its core "business" model that is a serious managment flaw.

Agree. It's poor management as I don't think they need to restrict in this way. But claiming its legal to discriminate in this way because of EA is untrue. That should be challenged

Explanatory Note to Schedule 9 Part 1:

This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.

This Schedule permits preferential employment (if there are good reasons) of someone with a PC, even though this would normally be illegal discrimination against candidates with a complementary PC, or of someone without a PC, even though this would normally be illegal discrimination against candidates with the PC. For instance, a job advert for men only would discriminate against women. An advert for non-transsexuals only would discriminate against transsexuals.

There is no complementary PC to that of being a transsexual person (or a married person), so it would not normally be illegal to preferentially employ a transsexual person or married person, thereby excluding non-transexuals (or single people), because being non-transsexual (or single) is not a PC. The situation falls entirely outside the Act.

Requiring someone who is NBI also falls outside the Act because you are not excluding anyone with a PC (except, possibly, that of GC belief , which would be easy to justify).

Legally anyone can apply.

If they then say no you can't have the job, it's bollocks because there's no legal definition of non-binary. Nor is there any legal protection for non-binary because there is no legal definition of non-binary.

You just have to claim you are.

So the ad isn't illegal in the sense that it prohibits anyone, it's just a nonsense because it if they try to enforce the concept it has nothing to stand on and that would be illegal.

I'd be inclined to give them a pass if they dropped the bit in brackets.

If they get away with misquoting and misusing the law in this regard, they'll try it on everywhere. They need pulling up on it.

This is about provision of support for rape victims with specific characteristics. If they find it healing to have a specific demographic of supporter, I can’t see why anyone would object or think that they should provide the sport, despite them not being of the preferred demographic.

I do understand people finding this hypocritical if those expressing the preference / doing the recruitment are also the people insisting that transwomen must be included in women’s provision. However, I fail to see how objecting is the way forward - it ultimately suggests you are arguing for one rule for one group and a different rule for another.

The ad fails even the most basic checks against the legislation.

Trans, Non-binary, Intersex & Gender Variant (TNBI) Group Lead Facilitator
This post is subject to an enhanced DBS check and open to trans, non-binary, intersex or gender variant individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).

trans - not a PC it only may be a PC
non-binary - not recognised in law at all
intersex - may or may not qualify as a PC
gender variant - not a PC it only may be a PC

Their problem is that they are looking for a person to work in a group with PC and without PC so test 1 fails : (a)it is an occupational requirement,
Then they are looking for a person who can come from (what they think is) a pick-n-mix of PC however the law is "particular protected characteristic" and the service provision is to a mixed group with no shared particular protected characteristic so test 2 fails : (b)the application of the requirement is a proportionate means of achieving a legitimate aim, and
So they cant rely on this to lawfully exclude applicants who meet all other requirements: (c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

individuals only (exempt under the Equality Act 2010 Schedule 9, Part 1).

https://www.legislation.gov.uk/ukpga/2010/15/contents

SCHEDULE 9Work: exceptions
Part 1Occupational requirements
General
1(1)A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—

(a)it is an occupational requirement,
(b)the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c)the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2)The provisions are—
(a)section 39(1)(a) or (c) or (2)(b) or (c);

39Employees and applicants
(1)An employer (A) must not discriminate against a person (B)—
(a)in the arrangements A makes for deciding to whom to offer employment;
(b)as to the terms on which A offers B employment;
(c)by not offering B employment.
(2)An employer (A) must not discriminate against an employee of A's (B)—
(a)as to B's terms of employment;
(b)in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c)by dismissing B;
(d)by subjecting B to any other detriment.

(b)section 41(1)(b);
(c)section 44(1)(a) or (c) or (2)(b) or (c);
(d)section 45(1)(a) or (c) or (2)(b) or (c);
(e)section 49(3)(a) or (c) or (6)(b) or (c);
(f)section 50(3)(a) or (c) or (6)(b) or (c);
(g)section 51(1);
F1(h)section 60A(1).]

(3)The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
(a)in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to be ignored);

7Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

(b)in the case of marriage and civil partnership, as references to a requirement not to be married or a civil partner (and section 8(2) is accordingly to be ignored).
(4)In the case of a requirement to be of a particular sex, sub-paragraph (1) has effect as if in paragraph (c), the words from “(or” to the end were omitted.

I hope they get the people they deserve.