Sex Matters - Hampstead Heath Ponds -

Don't you need to prove that Gender Identity Belief is WORIADS?

It's a mixed-sex pool for people of the transgenderist faith, limited along subjective gender lines in a way to which the Act does not apply.

I think that in practice, the problem is that this isn't actually what they want.

So it could work for the WI if they had explicit membership rules about belief, which would piss off the TRAs, because they think it's fact not belief, and the non-believing membership, who will have to leave, or pretend to believe. Taking us right back to where we started, with no WI for non-believers.

You’re off to a good start with a single PC association, but you have to have a membership list and rules for membership, you can’t be a service open to the public.

Single PC association are generally lawful (except for single race); single PC services are not lawful, unless they meet the narrow conditions for one of the exceptions.

No I’m not. I’m putting counter examples. Lots of people appear to think this (and other similar GC vs GI issues) are a slam-dunk sure thing, and can’t understand how anyone, courts included, doesn’t immediately see the correct answer. “But didn’t FWS rule categorically that separation by gender is unlawful and why hasn’t everyone immediately obeyed??”

What I’m putting to you are relevant arguments with close parallels, to illustrate this isn’t a clear thing, at least to lots of other people.

The devils-advocate arguments may be flawed, but some people, judges included, may buy them. Don’t celebrate the victory. It hasn’t happened yet.

How about a pool whose users are an association under Schedule 16 ie more than 25 people who share a single protected characteristic?

The PC is belief in gender identity which exists independently of birth sex.

No PMoAaLA is required.

The association has an additional entry rule, that members must believe themselves to have a female gender identity. Subjective GI or lack of it is not a PC so this is not illegal discrimination.

It's a mixed-sex pool for people of the transgenderist faith, limited along subjective gender lines in a way to which the Act does not apply.

Where did I go wrong?

You are simply trying to derail the thread.

I’m not sure. We have a tendency to dismiss anything inconvenient or difficult as “irrelevant”. There are some parallels.

It is irrelevant

I agree. But the “pool for people who like pink” is a hard straw man to knock down.

You cannot pretend you are not using sex then discriminate based on sex.

I think that is their essential problem.

Suggesting a pool for people who like pink is a straw man.

CoL are wanting to use criteria that align closely with sex so discriminate on the basis of the protected characteristic of sex and you can only lawfully do that if you actually use sex in line with exemptions within the equality act. You cannot pretend you are not using sex then discriminate based on sex.

The women who don't have a gender can also used the mixed sex pond*.

I think the problem would be that when women start using the men's pond and men start complaining, they will have to demonstrate that they assess everyone's gender equally, and it will be very difficult to prove or disprove the women's gender without suggesting that there are different criteria for people whose sex is male and people whose sex is female.

ETA *the original mixed sex/mixed gender pond.

That’s a bit like saying that signs for “Pool for people who like pink” and “Pool for people who don’t like pink” discriminate against people who don’t believe pink exists. (Pink doesn’t exist outside of human experience, there’s no wavelength for pink, it’s a construct of the human brain, so there could well be people who don’t believe in it.)

Or discriminate against anyone who doesn’t feel either way about pink.

I’m still not sure that would be unlawful. People who aren’t sure whether they like pink or not, or don’t think pink is real can use either pool.

If they want to separate by gender then the sign on the ladies pond would need to be ciswomen and transwomen. This would exclude all women who don't specifically identify as either of those which is the majority of women.

A pool + changing facilities for (all) women except those that are Biologically male.
A pool for all biological men.
But the pools and facilities must be of equal niceness.

It would not be a legitimate aim if the aim was to discriminate against them.

People often talk as though "discrimination" were inherently a bad thing, but many of us do jobs in which discrimination is literally what we are paid to do. Think of any job selection process, for example: its function is to enable a company to discriminate in favour of people who have whatever combination of skills and attributes they've dreamt up as being necessary for the job in question. It's only once someone demonstrates that those skills and attributes are more or less likely to be found in combination with some protected characteristic that there's any problem at all (and even then, it's complicated).

Because it's indirect discrimination, it would be lawful if a proportionate means to achieve a legitimate aim.

A Gender Identity pool for ‘feminine’ disproportionately discriminates against men (PC Sex) and therefore would be unlawful.

You misunderstand. I don’t need a legitimate reason to provide a pool for people who like pink. Liking pink is not a protected characteristic. I can discriminate by colour preference for any reason at all, and for no reason whatsoever.

And yes - that means it’s entirely lawful to not provide my service, my pool, my book club- to people who don’t like pink. I don’t even have to provide an equivalent. I can be as pinkist as I like.

As long as - and here’s the rub - that being pinkist doesn’t indirectly discriminate against a protected characteristic.

if you can show that more women like pink than men, then being pinkist is indirectly discriminatory against women. And since sex is a protected characteristic then the indirect discrimination is only lawful as a proportionate means to achieve a legitimate aim.

The pool for e.g. people who identify as women would include people who self describe as 'cis', so gender reassignment would be irrelevant.

What they couldn't do, as you say, is also include or exclude anyone on the basis of sex, or make assumptions about gender identity based on their sex.

They don't have any intention of having a single sex male pond. Their intention is that all the ponds should be mixed sex, but that there should be one pond for people who identify as women and one pond for people who identify as men.

This isn't a protected characteristic, as you say - the characteristic is gender-reassignment, so they could have a trans pool. Or a male AND trans pool, or a female AND trans pool (ie a single person with both characteristics).

They can't have a (female AND NOT trans) OR (male AND trans) though - because there's no justification/common characteristic to base that justification on.

The ponds is different because they're attempting to discriminate on a protected characteristic, which needs a good reason, and to be proportionate.

They are attempting to discriminate on the basis of gender identity which is not a protected characteristic and so not covered by the Equality Act.

They don't have any intention of having a single sex male pond. Their intention is that all the ponds should be mixed sex, but that there should be one pond for people who identify as women and one pond for people who identify as men.

The question is whether they can do that successfully without unlawfully indirectly discriminating on the basis of sex or driving away members who want single sex ponds.

They claim that trans identifying females may use the male pool but this is a lie.