Sarah Phillimore and Robin Moira White interviewed by Andrew Doyle

Please would anyone who has not yet signed the Sex-Matters petition to Parliament, to update the Equality Act to make clear that characteristic ‘sex’ is biological, not sex as modified by a Gender Recognition Certificate, please consider doing so. You can find it at Sex-Matters, or the petitions board here. Apparently no one is allowed to put a petition link anywhere other under ‘petitions’.

100,000 signatures are needed by 20th April to get Parliament to have a debate.
About 15,000 more are needed. This goal will be missed on the present trajectory.

Perhaps Nicola Sturgeon’s resignation has slowed it down.

Also, on the petition site there is the Government’s initial response saying the Equality Act allows sex based spaces- which is nothing to do with what they’d been asked in the petition, or the obvious point that Lady Haldane’s recent judgement ruled that if sex meant biological sex it would have said so.

It was started deliberately when the words “sex” and “gender” were used in the GRA to be interchangeable when it suited, but different when it didn’t suit.

A bit off-topic, but I saw this ChatGPT thing and it very much reminded me of the way TRAs talk about sex and gender being different but also the same...

Great, no need for the courts of appeal - now that we're sure the law will always be applied correctly, and courts will always be sensible🙄

This has been such an informative thread, both legally and, um, in other ways ...

How much did Maya Forstater’s court case cost, which had to be paid for by ordinary friends and supporters helping as they could? And she still needs money to get her compensation.

Re: OldCrone’s post about what Lord Falconer said here:

“What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

Apart from other considerations, how does he expect, for example, some poor woman prisoner to take the prison to court about men being in her prison in the first place - to see how sensible, or more likely not, the court will be?

Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

The law has already been used as a lever to push harmful self id policies into many organisations. If there wasn’t the idea that a man can get a certificate that says he’s legally a woman (with all the potential disclaims that facilitates), it would have been far harder to convince these organisations to write these policies.

In fact, they were told to ‘get ahead’ of the law by Stonewall as according to them, self id for GRC was inevitable (thanks Theresa May and chums).

It is extraordinary that Lord Falconer is advocating to introduce such a poorly drafted law with such fundamental flaws and rely on the courts to be ‘sensible’ in their interpretation. Laws need to be defined and clarified as far as humanly possible to avoid huge and expensive legal arguments. It is absolutely shoddy work to push through a law you know is hugely flawed and expect the courts to do the work.

His attitude is similar to the debates about the GRA - sensible people raising sensible issues and having them waved away by people desperate to push it through. Now, every negative scenario anticipated (and more) has happened to the detriment of women.

Yes, I think we've destruction tested the jolly good chap principle.

The fact is, given a third of a chance to be bastards, some people will grab it with both hands.

Lady Haldane's judgement kind of let the cat out of the bag on that one, with an extra helping of "but common sense would say that no-one really thinks it's ok for a male to mean a female when it comes to intimate examinations and prisons". Bless you Lady Haldane that you think that common sense comes into it.

That made me think of this article.

www.legalfeminist.org.uk/2023/02/10/sensible-people-and-the-law-going-bonkers/

Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

That would be more reassuring if the law had not already been very bonkers indeed for some years.

I'm so exhausted with the bullshit from trans activists DESPERATE to validate themselves with this.

The law needs to be clarified, which is insane in itself, but there we are.

The Equality Act 2010 rolled around 116 acts into one.
Most of the Equality Act 2010 was already in place in the previous anti-discrimination laws that it replaced. This includes the Race Relations Act 1976, the Sex Discrimination Act 1975, and the Disability Discrimination Act 1995.

Rather than continually using the phrase 'women and girls' or 'men and boys' exactly the same key as used in the 1975 act was provided for the Equality Act that 'woman' means a female of any age and 'man' means a male of any age.

www.legislation.gov.uk/ukpga/1975/65/enacted

From the 1975 Act

"Being a man is a genuine occupational qualification for a job only where—
(a)the essential nature of the job calls for a man for reasons of physiology (excluding physical strength or stamina) or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman ; or
(b)the job needs to be held by a man to preserve decency or privacy because—
(i)it is likely to involve physical contact with men in circumstances where they might reasonably object to its being carried out by a woman, or
(ii)the holder of the job is likely to do his work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities; or
(c)the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in premises provided by the employer, and—
(i)the only such premises which are available for persons holding that kind of job are lived in, or normally lived in, by men and are not equipped with separate sleeping accommodation for women and sanitary facilities which could be used by women in privacy from men

Sex in the 1975 Sex discrimination act is based on physiology, not identity or legal fictions.

"Physiology is the science of life. It is the branch of biology that aims to understand the mechanisms of living things, from the basis of cell function at the ionic and molecular level to the integrated behaviour of the whole body and the influence of the external environment."

It is, literally, laughable to pretend therefore that the Equality Act's definition of woman as 'a female of any age' (when replicating the 1975 Sex Discrimination Act definition) actually was meant to mean not exactly that but 'a female of any age but also including some men who call themselves women and who have a GRC and are legally 'female', some men who call themselves women and don't have a GRC but may or may not have requested to change the sex marker on their passport, not that you can ask to see a GRC anyway oh but not including those females who call themselves Men (with or without a GRC etc).

You just know that the "only birth and death certificates" rhetoric would swiftly change to "you knew what you were signing up for" the second the legislation got assent.

Lady Haldane's judgement kind of let the cat out of the bag on that one, with an extra helping of "but common sense would say that no-one really thinks it's ok for a male to mean a female when it comes to intimate examinations and prisons". Bless you Lady Haldane that you think that common sense comes into it.

Briefing Note: Impact of Gender Recognition Reform on Sex Based Rights
Rebecca Bull
This briefing note concerns the way the Equality Act 2010 (“EqA 2010”) and the Gender Recognition Act 2004 (“GRA 2004”) interact. It is intended to accompany the slides presented in the Scottish Parliament on 29 January 2020
mbmpolicy.files.wordpress.com/2020/02/impact-of-gender-recognition-on-sex-based-rights.-r-bull-11-feb-2020.pdf

I have just been reading through this and it seems to me that all those proclamations about, “All that a Gender Recognition Certificate changes is being able to get a marriage licence …. ( I can’t remember the other thing)”..couldn’t be more wrong, or more utterly misleading.

It changes everything. It makes sex based provisions on the basis of excluding someone with GRC so daunting, because so open to some sort of litigation, that it is easy to see how any ordinary service provider or association might find it more or less impossible.

The situation is bad enough already with Gender Reassignment which is more or less undefined.

As for testing it in court who has time and money for that?

The logical follow through on trans rights are human rights is that we can all pick our own prisons!

If instead same-sex marriage had been legalised alongside a law which said that people shouldn't be discriminated against if they chose to present in a non-standard way for someone of their sex, we'd be in a much better place now.

Yup, that's what we need.

Thing is, the discrimination trans people face is not discrimination by the lae. They have all the rights we all have, plus the protected characteristic of gender reassignment.

What they do suffer from is social prejudice, as do women (aye, 51% of the population!) gay men and lesbians, brown & black people, and so on ...

So the push by Stonewall for "Trans rights are human rights" is redundant. And we need a much more wholesale focus on breaking down gendered stereotypes of masculinity and femininity, rather than putting people in even smaller boxes.

Good to see that I and Lady Haldane agree about what ‘sex’ means in the Equality Act and why. Oh and Lady Hale. Helpful when next in court or tribunal.

This witty school yard response suggests that RMW absolutely hates this tiny corner of the MN universe trying to safeguard and slow down the irreparable harm being done to, predominantly neurodiverse, children, teens and young adult women and men and also to save single sex spaces for the female sex.

And why the passionate inexorable fight to privilege ’legal’ over biological sex? This, to me, is telling… because "If we strengthen “biological”, are we going to exclude trans women from circumstances where they should not be excluded…." Seems some TW really cannot stand the thought of being excluded from anywhere.

Moreover, whilst RMW pretends to acknowledge that there are "…particular circumstances where perhaps an exclusion is justified", there is no explanation forthcoming on exactly what circumstances TW should not be excluded from? Not excluded from women’s sports? Women’s prisons? Women’s refuges? All female short lists? It’d be really helpful, surely, to the discussion to have this spelled out. And that perhaps is, IMO, ominous. Once the EA is deemed to be speaking about legal sex, then that perhaps is erased forever and no exclusion ever justified. How could it be otherwise?

The GRA was based on the idea that pretence is preferable to reality. I just posted on another thread about this, but I'll post it here as well.

To a large extent, I think we are where we are because a law was passed in 2004 which made the assumption that society could not or would not accept men who wanted to present in a feminine way.

The law was based on the assumption that it was better that a such a man disguised himself convincingly enough as a woman, and that this person's true sex should not be disclosed to most of the people with whom he interacted.

Everything else follows from this.

If instead same-sex marriage had been legalised alongside a law which said that people shouldn't be discriminated against if they chose to present in a non-standard way for someone of their sex, we'd be in a much better place now.

It was started deliberately when the words “sex” and “gender” were used in the GRA to be interchangeable when it suited, but different when it didn’t suit.

This was actually discussed during the debate, but was shoved aside as unimportant, along with the questions about the negative effect on women’s rights, which was acknowledged at the time and dismissed as it was argued that only 5000 men in women’s spaces wouldn’t make much difference.

RMW mentioned the ELA. Here, you can see that is the “Employment Lawyers Association.
Robin Moira White: Hello, I’m Robin *White. I am a barrister at Old Square Chambers. To preface anything that is heard from me, effectively I am wearing three hats today because I was part of the team that produced the Employment Lawyers Association consultation response for the Committee, but I have also submitted a personal response and, of course, I transitioned myself in 2011. If I give an answer that departs from the Employment Lawyers Association response because it is more personal, plainly the ELA response is that that is in the document that was given. I am delighted to be called Robin.

Later RMW says:
Robin Moira White: Absolutely. The definition in the Equality Act is that a woman is a female of any age and a man is a male of any age. Forgive me, Karon’s analysis is perfectly intellectually valid, but a different analysis—and we haven’t tried this through—is that all that those definitions do is say that a girl is a woman and a boy is a man. ELA’s view is that there is a complete lack of clarity about that in the Act, so working out who is in which sex for the purposes of the Act is still something that needs to be clarified either in terms of litigation or in more legislation
committees.parliament.uk/oralevidence/1693/html/.

To me it seems surprising that a lawyer cannot see that if a woman in the Equality Act is a female/male of any age, then ‘woman’/‘man’ must mean a biological woman/man because the word ‘female’
or ‘male’ defines binary biological states.

So it would seem likely that an employer seeking advice from the ELA would be told
that there is no clarity in the Equality Act -that sex means biological sex not sex by gender reassignment or Gender Recognition Certificate.

There must already be a lot of confusion around causing a ‘chilling effect’ on sex based services, associations, organisations and sports.

This is epitomised ad absurdum by Edinburgh Rape Crisis which, far from using the exceptions under the Act to keep men/males of the biology male out as intended in the act, is run by a man who identifies as a woman; or Scottish prisons, which would be allowed under the Equality Act to provide sex based housing for women/females/females of the biology female while excluding all male prisoners of any identity, but fail to do so; or Girls/womens’ football which has regulations stating that any male footballer who identifies as a woman may use the women’s changing room if they so choose, even though the Equality Act would allow them to exclude males of any identity.

Robin, do you have anything to say about your disrespectful treatment of Dr Foran and Sarah Phillimore?

You've misrepresented them several times, but that's fine and dandy with you, i suppose.

This is what happens when you start pretending stuff

heaven knows how we got into pretendy law

The irony of RMW talking about misrepresentation.

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

You’d think that everyone who works in the legal profession would understand that this is a pretty obvious requirement. In legal documents much weight is given to definitions of words to avoid confusion and ensure a common understanding.

You would never therefore, have a word with more than one meaning in a law.

Lady Haldane’s judgment makes no logical sense as Michael Foran explains very clearly. If ‘sex’ in the Equality Act refers throughout to ‘legal sex’, then it automatically invalidates the stated intentions of the protected characteristics of Sex and Sexual Orientation.

The intention in the EA is to protect people against or allow certain discrimination on the grounds of Sex and Sexual Orientation. The protections we need (single sex spaces, discrimination etc) are based on our biology. Sexual attraction is based on biology. As Michael points out, he is a gay man attracted to other men, not to a legal category that could contain women.

The only way the protections can be effective is for the definition to mean biological sex as our need for single sex spaces or our sexual attraction to another is based on a biological category of one sex, not a legal category that could contain both sexes.

I’m assuming the people who drafted the EA were genuine in their intentions and this wasn’t all some big subterfuge to pretend they were allowing us single sex exceptions but really not (like their deliberate deception over single ‘gender’ accommodation in the NHS) so if that is the case, then ‘sex’ in the EA has to mean biological sex only and the Haldane judgement should be challenged.

are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly?

No. Men, whether they say they are women or not, can still engage with society, even if that society recognises their sex when they would prefer it didn’t. “Not allowed to engage” is nonsense. Not being allowed to do what they want, whatever the impact on others, is what you are referring to here.

And I bet, if those men had no choice but to use services and facilities appropriate to their sex, they would still engage. It might inconvenience them and doubtless they’d be angry at having their privilege removed, but that is better than women having their rights removed, as has happened already.

Of course, those men could, if they wished, ask society to acknowledge their discomfort when expected to use the spaces and facilities appropriate to their sex and campaign for separate spaces that would allow them to feel more comfortable. However, they would rather women were disadvantaged than to go to that effort, because they regard themselves as more important than women.

I’m thinking of a new banner Beets

Something along the lines of ‘Biological Males BOG OFF’’ and a picture of a ladies lavatory.

Single sex spaces are safer for women & girls - let's protect them!

Please click on the thread below for details of the petition to update the Equality Act

www.mumsnet.com/talk/petitions_noticeboard/4722618-petition-to-update-the-equality-act-thread-2?page=11&reply=124097004