For those who were on Good Law Project

[Tandora]

Please see the highlighted paragraph at the very start of the judgement. The judgement was about how to interpret certain words in the context of the EA 2010. They were not making judgements about what biological sex means, what gender means or how policy should be organised. That is not the role of courts. They are not scientists and they are not government. The role of the SC was to interpret the meaning of the words in the specific statute as it was written. Thats all. The end.

Image is not the most clear but it is parag 2 of the judgement.

https://supremecourt.uk/uploads/uksc_2024_0042_judgment_aea6c48cee.pdfIf

You think any members of the Good Law Project would sully themselves by reading this board? Or would read the judgement here when they have so studiously avoided reading it from official legal sources?

Thanks for starting this thread @Tandora .

I agree that's clear, however isn't it that case that there are various restrictions and obligations throughout culture and society where the only reason that there are separate options for women and men is because of provisions with the Equality Act, so a clarification of meaning of words in the Equality Act will knock on to a number of areas? I'll concede that if there's a scenario where a provision to separate the sexes is done for reasons unrelated to the Equality Act then it might be that this judgement doesn't apply, but I'm struggling to think of a scenario where there's separate provision for women and men that the EA doesn't apply to, can you think of one? I believe we already agreed on the previous thread that there are numerous scenarios where there's no obligation for women and men to be separated and unisex provision is legal and fine.

@NoBinturongsHereMate I think you misunderstood - @Tandora was referring to a long thread that reached 1000 messages and has started this thread to continue the conversation.

link to Good Law Project thread

The people behind the good law project are acting in a way that suggests they don't know how the law works. This is concerning given they are supposedly legal experts. There is a significant lack of knowledge of previous relevant cases which is key to good practice.

They are grifters exploiting transpeople and their allies. This is not cool. I am concerned about this.

I am keen for there to be Good Law.
I am very much keen for laws to exist which do everything reasonably possible to prevent harms to vulnerable and minority groups, without privileging any specific vulnerable/minority group above others.
I am not convinced that the specific people working at The Good Law Project are best placed to bring this about but I am very much in favour that they should bring any case they can to courts for decisions to help further clarify the law or identify areas where new primary legislation might be needed to create Good Law. These discussions bring air and sunlight that is much-needed. Good Laws can be tested in the heat of publicity that points out their real meanings and effects. Bad Laws (hopefully usually law proposals that fall apart before being enacted into law, but sometimes existing laws that need revising) crumble when they are tested in this way and are shown to be crucially flawed. This is a good conversation to have.

Ah, thanks for the clarification. Hadn't seen the previous thread.

I think people misunderstood me- I wasn’t suggesting the judgement wouldn’t have significant real world consequences. I just meant that the court were not purporting to make a determination about what would be a good or coherent policy, or what “biological sex” means, they were just interpreting law as it stands now.

This is separate to my analysis that people are over- interpreting the judgement itself , to presume it mandates the exclusion of trans women from all women’s services.
i believe the judgement only intended to allow that possibility- to say that it could be lawful. Not to mandate it.

People asked what my policy position is and I offered it. That (my) position is the status quo , in the sense that it is how things currently function in practice and have done for a while. The way people are interpreting this judgement, and the way the judgement is interpreted in the ECHR guidance, threatens to change that . however I don’t think that’s inevitable. The judgement allows for possibilities where sex reassignment/ gender presentation may change how a person is treated in relation to the “sex” exemption. Eg trans men may in some situations be treated differently to other members of their birth sex and placed in a category with “biological men”. I don’t see why the same argument couldn’t be made for trans women.

Furthermore, and importantly, for the most part , where services are provided separately for men and women- eg toilets- this is not enforced, but merely customary. Surely there are lots of situations in society where facilities/ activities are organised for different groups?- they aren’t situations where EA rules need to come into it at all, unless there is a concern about discrimination (eg if a cis man brought a complaint that he was being unreasonably excluded from a women’s service, then a provided might have to worry if they refused but allowed a trans woman. But when and why would this be likely to occur in practice realistically?)

Finally, even if the judgement were to mean what people believe/ are generally claiming it does, it still wouldn’t mean that the court believes an alternative policy (where trans women are excluded sometimes, and not other times) is incoherent per se. The court were tasked with elaborating a coherent and consistent reading of the meaning of words as they currently appear in the EA (in conjunction with the GRA). They were careful to state that drafting new legislation is a reasonable and available option .

This is separate to my analysis that people are over- interpreting the judgement itself , to presume it mandates the exclusion of trans women from all women’s services. i believe the judgement only intended to allow that possibility- to say that it could be lawful. Not to mandate it.

Missed the first thread, but I believe the law stacks up like this:

Under the EA act it is not lawful to discriminate based on sex. So in general, woman-only anything is not allowed.

However the EA allows for exemptions where it is lawful to provide for only one sex or for the sexes separately. The SC has clarified that this allowable exemption refers to biological sex.

So I believe a "woman" only service that includes trans women but no other men would be open to a sex discrimination suit by men who don't identify as women because they are being excluded.

The service could not rely on the EA exemption because they are not a biological woman only service.

The fact that men who do identify as women are not excluded is not I believe a defence because men as a whole are being treated differently to women as a whole, ie all women can use the service as a matter of course but men have to pass an additional test.

Additionally, if the service provided men only and woman only versions but both of these included people of the opposite sex with trans identities I think they are at risk of an indirect sex discrimination claim from women if it could be shown that not having single sex provision disadvantaged women more than it did men.

Yes I understand that is the logic people are following.

However, the judgement allows for possibilities where sex reassignment/ gender presentation may lawfully change how a person is treated in relation to the “sex” exemption. Eg trans men may in some situations be lawfully treated differently to other members of their birth sex and placed in a category with “biological men”- i.e. they can lawfully be excluded from female services (discriminated against) using the “biological sex” exemption , even though they are birth females. It directly follows that the same argument could apply to non-trans men, so non-trans men could be excluded from a service on the “biological sex” exemption , even though the service was including some “birth males” - trans women - without necessarily unlawfully discriminating against (non trans) men.

Furthermore, as I said, for the most part , where services are provided separately for men and women- eg toilets- this is not enforced, but merely customary. Surely there are lots of situations in society where facilities/ activities are organised for different groups?- they aren’t situations where EA rules need to come into it at all, unless there is a concern about discrimination.
You are right that the concern is that a cis man could bring a complaint that he was being unreasonably excluded from a women’s service, in which case a provider might have to worry they were making themselves vulnerable to legal action if they insisted on enforcing the exclusion of that man , whilst actively including trans women. But when and why would this realistically occur in practice? How many cis men are upset that they can’t attend activities or facilities designated for women , enough to bring lawsuits? When are access to most types of services- eg men and women’s loos enforced in that way? They aren’t. So when is a cis man likely to bring a complaint that he is being unlawfully discriminated against in relation to a trans woman?

You are also right that the other concern might be that a provider, in allowing trans women in a facility, wasn’t providing appropriate single sex facilities - but the contexts where this is required are limited (eg schools, workplaces). As everyone keeps reminding us, for the most part there’s nothing to stop providers making things unisex.

In a sense you are corrrect. It may take a man (who doesn’t identify as trans) to take legal action to force an organisation to exclude trans identifying men from a female only service. On this site we already have one man who has launched a claim against the Women’s Institute for denying him membership.

Also, women can sue, on the grounds of indirect discrimination.

Further, the EHRC itself can take a variety of actions against such an organisation, of its own volition.

So, to the extent that in any sphere of activity unlawful action isn’t prevented by the courts (judges in wigs don’t physically prevent people) until a disadvantaged party sues and wins damages, it’s a distinction without a difference.

It only takes one person to bring legal proceedings; do you really think that won’t happen? And do you think responsible organisations will or should take the risk?

On the question of making all services unisex. Again, you are correct, to an extent. There’s no rule that you can’t have unisex rape crisis counselling, for example. But if it’s not what women want it won’t be a much used service in comparison with the women-only service.

For profit-making enterprises offering services to the public, they will decide if “all gender” changing rooms encourage or discourage more customers than single-sex ones.

what does have to change is that either all men are admitted, or none. “Women and trans identifying men” services are not lawful.

And workplaces must still provide genuinely single sex toilets and changing and washing facilities. That is not optional.

It’s actually incredibly important and significant that the court specifically mentioned that option to lawfully discriminate against trans men using the sex exemption , as it demonstrates that the law does in fact recognise the significance of sex transition/ gender presentation. - that it’s not just as simple as sex=birth sex in a real world/ applied context.

I think if this were a significant problem we’d have had a tonne of such law suits already by now brought by (non trans) men, since this has been going on for ages. The suits resulting in the arguments about single sex spaces haven’t been brought by cis men. There’s a reason for that.

If I were an ordinary service provider with eg separate loos for men and women , I’d just crack on. If a cis man came along one day really wound up that he couldn’t use the women’s service / facility, I might allow him if I were worried about a law suit. Otherwise I’d crack on without trying to figure out who might be a trans woman and trying to enforce that . This is what people are doing for the most part so far because in the real world most people are not arseholes.

I note you didn’t respond to the more substantive point addressing why the mandate in the EHRC is an over interpretation of the judgement..

I meant to quote @MyAmpleSheep not my own post!

There will be a mixture of court actions forcing the issue (and some are live at the moment, as you’ll know) and organisations that premeptively decide to follow the law. Many service-providers are waiting for the updated EHRC code of practice, although there’s no doubt what it will say.

To the extent that I didn’t address your “more substantive point”, I probably didn’t understand what you were saying, or else I addressed it on the other thread and don’t feel like repeating myself. Don’t read into that that I necessarily agree with you. But please do note I’m looking for points of agreement, as well.

As for who’s doing the suing, it’s mostly women who care about these things, and armed with the crystal clarity of the SC decision in FWS and the forthcoming EHRC code of practice, I’ll just say, watch this space.

the more substantive point was about your statement here:

what does have to change is that either all men are admitted, or none. “Women and trans identifying men” services are not lawful.

which I resolutely disagree with for reasons elaborated above

So, to the extent that in any sphere of activity unlawful action isn’t prevented by the courts (judges in wigs don’t physically prevent people) until a disadvantaged party sues and wins damages, it’s a distinction without a difference.

Also you entirely misunderstood the point here. It wasn’t that “unlawful action isn’t enforced” it’s that most services designated for men and women, along with all sorts of other groups, don’t in fact enforce that designation. It’s simply customary.

its not clear whether you’ve just a moral objection to that but accept that’s the only lawful approach, or if you still think “women and trans identifying men” is a lawful category of service.

If the latter then you’ve not done a good job of explaining how your view is compatible with FWS, because I still don’t understand how you can interpret FWS in a way that shields such a service provider from a claim of discrimination under the EA 2010, either from a woman, a non trans identifying man, or the EHRC itself.

@Tandora you are misreading and misunderstanding the reference to transmen being able to be refused access. They don't get access to men's facilities instead but need appropriate services providing. This is only meant to apply in rare circumstances where someone who is male passing would cause distress ie rape counseling. They would either need a mixed sex group or individual they would not be included with men.

“most services designated for men and women, along with all sorts of other groups, don’t in fact enforce that designation. It’s simply customary.“

So you’re saying that if a non trans identifying man went along to a women-only breast feeding support group, they’d be admitted without a second thought, because the women only bit is customary and not intended to be enforced?

That seems first of all very unlikely.

And secondly and more significantly, a sign that says “no blacks and no Irish” is still unlawfully discriminatory even if the exclusion is only customary, not enforced, and actually black and Irish people are admitted after all. I don’t think your argument stands up.

I understand that- it doesn’t change the point at all.

But it does because they are not being treated as men which is what you are claiming

I’m saying that never happens in practice because of custom.

I disagree that signage designating a service is for a particular group is necessarily discriminatory. If a service says it’s for mothers , is it discriminating against non mothers ?

They (trans men) are being lawfully treated differently to (non trans) women under the sex exemption.

it directly follows from this that it is possible that (non trans) men might in some circumstances be lawfully treated differently to trans women under the sex exemption, without inevitably / necessarily implying discrimination .