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.

Well yes but not in the way you are suggesting because that would be against the single sex exemption.

A pp said it perfectly above, the logic the EHRC and others are trying to apply is “ either all [birth] men are admitted, or none.” (Otherwise it’s unlawfully discriminating against birth men)

Surely it would have to follow that “either all [birth] women are admitted or none”. (Otherwise it’s unlawfully discriminating against birth women)?

And yet the court allowed for the opposite.

🤦🏼‍♀️

“ I disagree that signage designated a service is for a particular group is necessarily discriminatory”

The advertising of a service is a clear part of its provision. If the advertising is unlawfully discriminatory, the service is, de facto.

. If a service says it’s for mothers , is it discriminating against non mothers ?“

Obviously. But motherhood isn’t a protected characteristic. As long as it’s not a proxy for unlawful discrimination on the grounds of sex (as only women can be mothers) then fill your boots and advertise and run a service just for mothers - it’s lawful.

No you are again misunderstanding. Just because something uses the single sex exemption to refuse access to all men it does not follow that they have to allow access to all women. They would need different reasons to refuse access but they can still refuse.

That’s correct. In this case they would be discriminating against the female individual on the grounds of her gender reassignment which would otherwise be unlawful except for the provision of Schedule 3 section 29 (I think), that, in the provision of a single sex service permits discrimination on the grounds of gender reassignment as long as it meets the proportionality test for a legitimate purpose. Frightening the other service users would satisfy that test.

it has always been an explicit intention of the EA2010 since it was passed that this might occur, it’s just that nobody seemed to notice until the SC judgment highlighted it.

This is pretty much the conversation I recently had with my adult DC. I can only hope their eyes will be opened to the fact that you don’t win court cases on grift-fuelled emotional rhetoric. Court cases, particularly in the higher courts, are won clinically, forensically and factually, citing clear precedent, statutes and case law.

the logic the EHRC and others are trying to apply is

“ either all [birth] men are admitted, or none.” (Otherwise it’s unlawfully discriminating against a certain group of birth men)

Surely it would have to follow that
“either all [birth] women are admitted or none”.
(Otherwise it must be unlawfully discriminating against a certain group of birth women)?

And yet the court allowed for the opposite.

Surely you can't be suggesting that it's fine for the EHRC to apply a double standard for (trans) birth females, compared to (non-trans) birth males? 😏

Sorry - my error. it’s paragraph 28 of Schedule 3 of the EA2010 that explicitly permits discriminatory conduct on the grounds of gender reassignment in relation to separate and single sex services, when the conduct is “a proportionate means to a legitimate aim”.

The court allowed for the opposite because it’s explicitly permitted in the EA2010. It always has been. See my prior post.

Right but gender reassignment is also a protected characteristic.

So if we are saying these two protected characteristics (sex, and gender reassignment) can interact for the purposes of enabling lawful differentiation between different groups birth females, why can't they also interact to differentiate between different groups of birth males?

Why couldn't we say, it's proportionate (lawful) to discriminate against non trans men here on the grounds of sex, but - despite their sex - it's not proportionate/ legitimate (lawful) to discriminate against trans women because of gender reassignment.

Why is it all or nothing for "males", but some and not others for "females"?

What about a football group for 10 year olds?

It can be used to distinguish between different groups of birth females. It’s exactly symmetric between the sexes. So a men-only group can legitimately exclude (on the grounds of his gender reassignment) someone they think would negatively affect the rest of the group. Think Dylan Mulvaney in a support group for wife-beaters.

You can legally keep people out of single-sex group on the basis of their gender reassignment. What you can’t do is legally include extra people in on the basis of their gender reassignment.

It could for men to if it was deemed appropriate but it still wouldn't allow a trans identifying man to be allowed into spaces for women the same way that the exceptions that mean trans identifying women can be excluded but still not allowed access to an all male group.

Ok but gender reassignment is also a special protected characteristic.

So why couldn't we say, it's proportionate (lawful) to discriminate against non trans men here on the grounds of sex, but - despite their sex - it's not proportionate/ legitimate (lawful) to discriminate against trans women because of their gender reassignment.

Why is the discrimination more easily perceived when it's directed against cis men?

Equality Act 2010 Paragraph 195(2). Go look it up.

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That's about gender reasignment.
I meant what if I put up a sign that advertised a football club at 9am for 10 year olds, and one at 11am for 9 year olds..

Is that automatically discrimination?

Ok I should go back to sleep now but thought provoking discussion!

Because as the court explained it is incoherent and means the act does not work in the way it was intended.

For the purposes of the equality act sex remains biological/birth sex or how ever you wish to phrase it and that is not changeable.

i can’t get my head around your first question, it’s just too convoluted for me to follow. My bad. But probably the answer is that the Equality Act 2010 doesn’t allow it.

I don’t think I understand your second question. Which discrimination against non trans identifying men do you mean?

The definition of discrimination in the act is to treat one person less favourably than others. Which group is is being less favourably treated, and how?

The 9 year olds who aren't allowed to attend the group at 9am?

Again, Section 195(7). Age discrimination in sports is explicitly allowed.

My apologies, I referenced 195(2) earlier, it should have been 195(7). Hopefully you were able to spot the correct paragraph a little further down.

In order for you to be allowed to discriminate on the grounds of a protected characteristic you have to show it's proportionate and legitimate right?

Surely we could have a service where we say, ok it's proportionate and legitimate to keep biological males (in general) out of this services for x. y, z reason.
However, some of these males have the protected characteristic of gender reassignment, because of this characteristic they actually to all intents and purposes (for example) look like women/ have the anatomy of women, therefore they would not upset the women, meanwhile it would be profoundly upsetting for these trans women to be excluded for x, y, z reason. Therefore for this sub group the discrimination (exclusion) on the basis of sex isn't legitimate and proportionate and therefore it isn't lawful.