Exemptions and the Equality Act

[MaidOfStars]

For any given context, are they automatically assumed, must they be evoked and can they be ignored?

The wording reads, to me, as offering legal protection for spaces who wish to exclude TIMs (providing proportional etc).

So take a rape crisis centre with a clear mission statement that excludes males and TIMs. They can claim protection from legal action on grounds of discrimination under the exemptions listed in the Equality Act.

Now take a rape crisis centre whose mission statement includes TIMs. They are not claiming exemption under the Equalities Act. Can users force them to do so? I don’t see the legal mechanism for it. Of course, users (and allies) can campaign and debate, but how does one force a rape crisis centre to avail themselves of exemption protection if they don’t want it?

Along similar lines re: formal phrasing, I’m seeing a lot of Twitter claims that ‘self ID is illegal’, when what is meant is ‘self ID is not a legally-supported mechanism to acquire sex-based rights’. The strict reading of the former makes for a very different tone.

I’m intrigued by what I see as a subtle nuance in wording, but I’m no legal bod. Was promoted to this post by a suggestion on another thread about having ‘a line’ that we can legitimately (and by that, I mean worded carefully and truly reflecting the law) repeat when confronted by clashes. Just pondering....

I guess I’m trying to come up with a pithy counter to ‘Transwomen are women’ that doesn’t necessitate engagement and debate.

Something like ‘Self-IDed transwomen cannot legally access sex-segregated spaces’. I know, I know, not pithy.

Self-ID =/= legal woman.

Repeat ad nauseum.

In the case of a breastfeeding room, men cannot legally;

• attempt to access the service.
• claim they are being discriminated against when they are prevented from using the service
• claim they are being discriminated against if they are not given an equivalent service.

because the need for a breastfeeding room is based on biological sex.

Therefore other services based on sex, such as a smear test or test for prostate cancer, should have the same protection.

In the case of a trauma therapy group such as rape crisis or domestic violence service, it is a single sex service. It is not appropriate to mix the sexes.
If men want a men's rape crisis they can access one or start one.
If gay men want a rape crisis service for gay men, ditto.

The same rule should apply to trans people. No one is stopping trans people from starting services for trans people.
what we are saying is that it is not appropriate for them to access services for people of a different biological sex.

You are asking if an organisation chooses to use the exemptions or whether they are legally required to use the exemptions.

I fear it is the former hence all this guidance being issued (girl guides / Scottish schools) which entirely ignores these exemptions.

Can users force them to do so?

No they can't.

‘self ID is illegal’

In terms of AWS this appears to be correct. EA part 7, s.104 deals with political party shortlists specifically. You can have a single sex shortlist but not a shortlist restricted to any of the other protected characteristics. TW with a GRC (legally) share the protected characteristic of sex with women but self-ID'd TW don't.

The exceptions all work slightly differently though. For example in some situations it's legal to also exclude TW with a GRC. Fair Play for Women did an excellent analysis here.

I’m trying to come up with a pithy counter to ‘Transwomen are women’ that doesn’t necessitate engagement and debate

A bit off-topic sorry, but I really like "gender is not an identity, it's a tool of the patriarchy" from gender critical greens.

My understanding is that a woman's organisation that excludes men but includes TIMs who don't have a grc (and therefore doesn't use the exemption) could be viewed as illegally discriminating against men who don't self identify as women. I'm not a lawyer though.

*women's

You are asking if an organisation chooses to use the exemptions or whether they are legally required to use the exemptions
Yes, and that would have made my post less rambling! I wonder if there are any situations where a service provider is legally obliged to work within an exemption?

Irk
Breastfeeding, cervical smears and prostate checks are, by definition, predicated on biological sex. Being a victim of rape is not (I am referring to the legal position, not the social position). So I don't see, to the exact letter of the law, that a rape crisis centre is necessarily a single sex service, unless the providers of that service explicitly make it so?

(And I guess the recent developments regarding how we define sex [or rather, how others are choosing to redefine it] may have been a curveball for service providers who have always been de facto single sex services without needing to make it formal policy?)

Is the problem here, from girl guides to rape crisis centres and beyond, that providers don't know about the exemptions, that they don't understand the protection provided by the exemptions, or they are ignoring the exemptions as a ideological position? Is there a difference between public and private providers? Are we more likely, from a legal standpoint, to be able to force the NHS to stop using self-ID as a mechanism for accessing single-sex wards or to force the girl guides to stop using self-ID as a mechanism for access?

Pencils
I understand the legislation of AWS, and why the cry that "self-ID is illegal" is happening (it's shorthand). I guess I was commentating on the premise that, in a statement out of context, "self-ID is illegal" is not true, and could seem to be oppressive (because we allow freedom of expression etc). What we mean is "Self-ID is not a legal mechanism for XYZ". Just thinking about the words themselves.

My understanding is that a woman's organisation that excludes men but includes TIMs who don't have a grc (and therefore doesn't use the exemption) could be viewed as illegally discriminating against men who don't self identify as women
Good point.

Is the problem here, from girl guides to rape crisis centres and beyond, that providers don't know about the exemptions, that they don't understand the protection provided by the exemptions, or they are ignoring the exemptions as a ideological position?

I suspect it is because they have been heavily lobbied to be trans-inclusive and on the right side of history. TRAs are incredibly organised and are issuing guidance and running workshops all over the place.

I don't see, to the exact letter of the law, that a rape crisis centre is necessarily a single sex service, unless the providers of that service explicitly make it so?

Rape crisis and DV services have, up til now, provided separate, single sex services for women and men. That is the norm.
Experience (backed up by research) has shown trauma therapy groups work best as single sex groups, for several reasons, including the fact that men talk over the women.

Men dont like these women only groups but don't seem to want to fund services for male victims.
Not every situation can be listed or included in legislation, people are expected to use some common sense and common human decency.
Except with trans activism, everything is a potential get out clause. Society has never faced a situation like this before and isn't equipped to deal with it.

Our own government has turned on us and set this in motion.

While I don't think organisations are directly obliged to use the exemptions, they do have other duties on them which they may be breaching.

Eg in the case of the woman locked in a psychiatric ward with a man she was terrified of - They have a duty of care and a duty to safeguard their female patient which they have failed to do (and will continue to fail to do as they are standing by that decision). Ditto putting rapists in women's prisons.

Public sector organisations also have a public sector equality duty which applies to 'gender' and requires them to minimise the disadvantages women face and to meet women's specific needs.

www.equalityhumanrights.com/en/advice-and-guidance/public-sector-equality-duty

So basically, yes, I think a lot of organisations are breaking the law but it would need someone who has been disadvantaged by this to be willing to go public and to take them to court. Hopefully, the recent gofundme campaign shows that lots of women are willing to contribute financially to such a case but it would take a brave woman to come forward and face that level of abuse (for merely trying to assert their rights under equality laws).

Society has never faced a situation like this before and isn't equipped to deal with it
I agree with what you wrote and this especially.

After the Manchester meeting, I was talking about trying to understand where the ‘social contract’ (decency, awareness, etc) became a matter of ‘words are more important and let’s stretch that meaning out of recognition’.

We can’t rely on social contract. I guess that feeds into my OP. What is the very definite legal ‘contract’ that we can resort to? Do we need to push Exemptions (deliberate capitals)? Do service providers know these exist? If the Lancashire NHS Trust know they exist, they could have batted that bloke into a different ward, and have complete protection in law to do so. Why didn’t they?

Betti Absolutely agree that there is clash of ‘duty of care’. The thing I got from the Lancashire NHS thing is if she’d been irrationally scared of XYZ, she’s have had care that prevented exposure to XYZ. But not when it’s men.

I may be slow to this... Has anyone asked Lancashire NHS Trust how they weighed up the clash of rights? Do they have ‘balance and checks’? Are they towing a line? Given by whom?

Like Betti says, there may be other things that mean a service provider has to act in a way consistent with the provisions of the exemption

For example, schools in england are required by statutory regulations to provide sex segregated toilets, washing facilities and changing rooms

Oleannas Required by law. So the issue is definition of ‘sex’?

No, the issue is that schools that let TIM use the girls changing rooms are in breach of the education regulations, but no-one (yet?) has taken them to court to pursue it, or Ofsted taken action against a school because they are in breach of the regs.

The more of these threads I read the more I think another poster was right about saying strategic litigation is the way to go.

If a test case can show that schools / girlguides / political parties / NHS etc are acting illegally then there will be a very swift rollback on lots of quarters.

If we have any lawyerly types here I'll happily chip into a crowdfunder.

I agree, ItsAll

I wish the candidate who came second in the CLP Women's Officer election in Rochester had taken the case further. I understand why she didn't, but I would have though that there is a clear case of the CLP breaching its own rules by allowing a transwoman without a GRC to be elected into that post.

The best strategic litigation to win would be to get the Govt to change the Equality Act back to stop trans rights ovveriding those of women.

I can't think of another set of competing rights where one group can erase another in the same way.

Something like ‘Self-IDed transwomen cannot legally access sex-segregated spaces’. I know, I know, not pithy.

Not all trans women are legally women. ?

I really think it has to come down to clearly separating sex and gender. With self-ID be whatever gender you like; it has nothing to do with sex.

This from @diva ex machina on twitter:

Gender identity is protected where it is shown to be reason someone experiences discrimination. It doesn't require that anyone validate gender identity, only that they not use it to deny housing or jobs, etc.

(It's 'gender reassignment' that is the protected characteristic but that has been defined as anyone even thinking about transitioning).

Only people with GRCs are legally women and by law should be treated as such, without a GRC you are (and absolutely should be) protected from discrimination but there is no compulsion for people to 'treat' you as your gender identity.

Just to add what was written yesterday on Twitter (as I haven’t seen anyone else mention it yet ) and is relevant to OlennasWimples post.

Hope the screenshot photo works...

The same rule should apply to trans people. No one is stopping trans people from starting services for trans people.

TRAs, almost above all else, seek validation that they are women. To start any service purely for trans women means they have to concede they are not women.

I really think it has to come down to clearly separating sex and gender. With self-ID be whatever gender you like; it has nothing to do with sex.

To start any service purely for trans women means they have to concede they are not women

I agree with both of these. TIMs are not women. Personally I'm beginning to think we should lose the legal fiction of the GRA as it just confuses issues. Men should be able to "live as women" without discrimination and vice versa, but they should absolutely not be recognised or treated as women.