Sex Matters - Hampstead Heath Ponds -

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

So yes, having a male only pond, but not a women's only pond is an issue. You might say that a male pond and 2 mixed ponds is sufficient - but I don't personally think that they can have a good reason for a male-only facility that wouldn't equally apply to a female-only one - and, that assumes that the facilities will be comparable - which they aren't.

As is trying to combine two disparate groups (males with gender-reassignment, and females without (or more likely, females with any gender-reassignment) - there's no common characteristic there on which to pin your proportionate response to a legitimate aim.

On what basis are they excluding males without gender-reassignment when they allow in males with gender-re-assignment, and females of any gender re-assignment? It will be a very hard case to argue.

Thanks, this is helpful clarification.

Edit - I think I see where the misunderstanding is. You can offer a service for people who 'like pink' but, refusing service to people who don't is where your issue is.

I think it would be difficult to prove that somebody doesn't like pink.

However, from the CoL point of view, I think their main problem would be that their three ponds were now mixed sex, and that is unlikely to please the service users who were not amused by the presence of the Man Friday team.

Good luck with that - because in practise the moment you let someone in to the pink pool who doesn't like pink, you've lost your legitimate reason to provide service.

Discrimination requires a legitimate reason including for non-protected characteristics. I think you'd struggle with a reason for 'likes pink'.

Edit - I think I see where the misunderstanding is. You can offer a service for people who 'like pink' but, refusing service to people who don't is where your issue is.

You absolutely can. Liking pink isn’t a protected characteristic, so on that basis, discriminate away.

The clue is in the name: people are protected from discrimination on the basis of protected charscteristics. Not from discrimination on the basis of characteristics that are not protected.

No you can't, because 'liking pink' isn't a protected characteristic.

You can suggest it, but you absolutely can't stop pink-haters from going in the pink-loving pool.

They can identify as liking pink for the day, and then they’re welcome to use the diving board. What’s wrong with that?

I don’t think “feel like they can” or “feel like they can’t” is relevant. They either can, or can’t.

Discrimination by “liking pink” is obviously lawful.

As to whether you can prove someone likes pink or not, why do you need to prove it? If you say you like pink then you like pink.

The Equality act both specifies what you can't discriminate on, and what you can.

You're allowed to get more specific with AND (eg. Black AND Homosexual AND women = Race + Sexuality + Sex)

but you're not allowed to OR characteristics as there's no common requirement

eg a group for people who are buddists, or women wouldn't be OK (but Buddhist women could be)

When they say 'combine characteristics' - they mean multiple characteristics embodied in one person, not across the group.

Not if it means people with specific protected characteristics feel they can’t use it you can’t.

And how do you prove someone really likes blue and doesn't just want a go on the diving board?

You can say “this pool is for people who like pink, and that pool is for people who don’t.”

whats the substantive difference in law between liking pink and “thinking of yourself as a particular sex”?

Sorry - the gender would have to be masculine or feminine, not male or female, as that might imply a link to sex.

Again, I think the main problem would be that they would have to exclude most of their existing users who just want to go for a swim.

In my imaginary example, I agree that the number of people who could be admitted to the pond would be quite small, as they would all have to believe they had a gender that was distinct from their sex, and it would have to be male or female, not non-binary.

Discrimination exists where you say ‘you can enter, but not you’ and there are only specific situations where this is allowed for protected characteristics. That includes sex specific toilets and changing rooms. It doesn’t matter if both toilets are the same - you are not allowed to say ‘white people in this toilet and black people in that one’. Nor could CoL have divided the pools by race, sexuality or marital status. And you can only rely on sex exemptions if you are using sex to discriminate.

How can it not be when we know from the census that only a tiny percentage of people state their gender differs from their sex? You also only need to look at the use of the pools to see that with few exceptions they discriminate between sexes - with men mostly using the pool labelled men, and vice versa.

I agree that by discriminating on the basis of gender identity it is likely that they might be indirectly discriminating on the basis of sex.

There isn’t a law that’s explicitly says gender-separated services are unlawful.

Now, does it feel like FWS made it clear that “made it clear that you can't legally have a bio women + men with gender feels service (ie woman gender)”?

Do you know the joke about the maths professor giving a lecture who says something like “and so…from lines 27 and 43 above it is obvious that this following result holds…” and writes up a new equation. Then a student says “Professor, why is it obvious?” - whereupon the Professor dives into a 45 minute diversion scribbling equations of ferocious complexity all over the board, until finally he gets the result he said. “Ah, yes,” says the student. “Now I agree it’s obvious”.

IANAL, but surely laws exist in their own right and don't always require precedent for a judgement to be made?

I thought that was only in edge cases that were open to interpretation.

I thought FWS judgement had made it clear that you can't legally have a bio women + men with gender feels service (ie woman gender) as that illegally discriminates against men who don't have gender feels (and possibly also discrminates against women who need the service to be single sex)?

Any legal minds out there who can clarify?

Not all men though, and I think we play into their hands if we judge the biological sex not the actions. It's a bit like what I used to say to toddlers. I'll always love you, but I don't like your behaviour and I won't put up with it.

The sad truth is that women did put up with it while these poor representatives of their sex were young. Mothers, sisters, wives all let them get away with it, and we need to stop doing it and teach our daughters that they are worth the same as a man and that 'nice' is manipulative and any man who just wants us for our looks isn't worth having.

But given TRAs argue most people’s gender identity aligns with their sex then discriminating on the basis of gender identity automatically introduces sex discrimination. I order to not discriminate on the basis of sex there would have to be at least roughly equal numbers of males and females identifying as each (in this case rather binary) gender.

He popped up here:

https://christianconcern.com/news/high-profile-lgbt-activist-removed-from-case-for-perception-of-bias/

What ever happened to Edward Lord, and their side kick Meg-John Barker. At one point Ed seemed to be everywhere. Amateur Swimming Association, Girl Guide policy meetings, Freemasons. Meg-John was invited by my husbands employer to talk about diversity. Ed, as I remember, was believed to have some dodgy acquaintances with PIE links.

The consultation was very dodgy. Mainly promoted on Twitter and with a long personal section at the top which seemed designed to disqualify women. I am a genuine London based open water swimmer - swam in the sea this morning. I swim regularly in South London lidos and have occasionally swam in the Serpentine. Hampstead was on my bucket list. The impression was that twitter users from the US were more likely to have their views taken on board. There did not seem to have been any effort to engage local populations including some observant Jews who might need single sex spaces. Nor pond users. I wrote several times to the City Corporation to complain but never got a response.

I hope, almost a decade later, that Sex Matters can right the wrong.

There is nothing to prevent it either. The default position of the EA is that discrimination on the basis of a PC is unlawful, but discrimination
based on other criteria is not.

The problem is that you would have to be ensure that you weren't unlawfully discriminating on the basis of sex, and if you didn't check and exclude everyone equally on the basis of their gender identity, it is possible that you could be unlawfully discriminating on the basis of sex.

Anybody who doesn't sincerely. believe they have a male or female gender identity could only used the mixed sex pond.

CoL's barrister today put the argument (one among many) that since the division is by gender identity, it's not trying to be a separate sex service.

There is no ability within the Equality Act to discriminate on the basis of gender identity.