Over on trans Reddit, P-t-d has spoken. He always understands what's actually going on. And he has decided:
"Shy of finding that we would be engaged in personal harassment, this is the worst case scenario for us."
Protect-the-dollz
OP • 1m ago
So to give a rough recap of where we are with litigation:
This is the third case since FWS about access to single sex facilities by trans people at work.
There are three pieces of law whose interaction governing this is disputed.
The first is the Equality Act 2010 (EA) as interpred by FWS.
The second is the Health and Safety at Work Regulations 1992 (WRs).
The third is the Gender Recognition Act 2004
There is also an old case called Croft which holds essentially that at a certain point in transition we should be considered legally our new gender.
The previous two cases, Kelly and Peggie came to different conclusions.
Kelly held that the WRs take precedence. That employers can count yrans people as our desired sex for their purposes l.
Peggie held that for an employer to allow access to a single sex space against the objection if a terf will count as harassment of the terf on the part of the employer. It also held that the WRs do not apply to Employment Tribunals and that FWS does not prevent access to single sex spaces for trans people
Peggie however rests on fabricated quotes which the judge made up and do not appear in the authorities he quoted.
Kelly was about the best case scenario for us.
Darlington is the very worst.
It holds that the WRs must be read to be consistent with FWS and that there is no lawful basis for trans access to single sex spaces in the EA
It also agrees with Peggie that while a trans person being allowed to change with terfs is not harassment by the trans person, it is by the employer.
FTT decisions are not binding- however both Peggie and Kelly are being appealed and this creates a precedent which a lazy judge can defer to. This is extremely dangerous.
The High Court case addresses many of the same points and will be binding. It is extremely important that we win that one now.
Some of the worst paragraphs:
314 Mr Cheetham, in oral submissions, accepted that, for the purposes of those Regulations, ‘sex’ ‘may’ have to be interpreted in the same way as under the Equality Act in accordance with the Supreme Court judgment in For Women Scotland. The Supreme Court did not consider that particular piece of legislation in its judgment, although it examined the wider health and safety legislation framework. We are satisfied that, in keeping with the need for a coherent and workable structure, to enable those who have to regulate their conduct and comply with statutory duties, the meaning given to ‘men’ and ‘woman’ in those Regulations must logically be the same as under the Equality Act 2010.
...
430. We accept paragraphs 29 and 30 of Mr Fetto’s closing submissions and conclude that there was and is no right in law for a transgender person with or without the protected characteristic of gender reassignment to use a single-sex changing room corresponding with their affirmed gender. On the contrary, regulation 24 of the 1992 Regulations requires there to be separate changing rooms for use by biological men and women. In the case of For Women Scotland Ltd, the Supreme Court held that the words ‘sex’, ‘woman’ and ‘man’ in sections 11 and 212(1) of the Equality Act 2010 meant (and were always intended to mean) biological sex, biological woman and biological man. They did not include the sex that a person acquired pursuant to the issue of a gender recognition certificate, or a fortiori, to a transgender person not in possession of such a certificate.
431. The reference to ‘men’ and ‘women’ in the 1992 Regulations must, in our judgement, be interpreted harmoniously and consistent with ‘sex’ and ‘men’ and ‘women’ under the Equality Act. This was not seriously contested by Mr Cheetham, who conceded that this ‘may’ be the case. Parliament cannot, in 1992, prior to legislating for transgender recognition, have intended those words to bear any meaning other than biological sex. Nothing in the Equality Act or in other legislation since 1992 changes that.
432. There is nothing in the Equality Act that stands to override the 1992 Regulations and affords Rose or any other trans woman a ‘right’ to access the female changing room. The prohibition against gender reassignment discrimination under the Equality Act does not equate to a ‘right’ to access that space, such that it gives rise to competing rights with women who have rights under the 1992 regulations to be provided with suitable single-sex facilities in the relevant circumstances.
...
The aim of respecting the gender identity of all its employees
436. As we have said, this is unquestioningly a legitimate aim. It is right and proper that Rose Henderson’s (and any other transgender employee’s) gender identity be respected. However, the measure taken in this case to achieve the aim of respecting Rose’s identity was not appropriate – because it was a breach of the 1992 Regulations. Furthermore, absent any consideration of the 1992 Regulations, it could not be appropriate given our conclusion that by permitting Rose use of the female changing room, this amounted to harassment related to sex, in contravention of section 26 Equality Act 2010.
This is the worst case scenario for us.