Feminism: Sex & gender discussions
Want to know why women are livid? (trans thread)
Datun · 22/02/2018 17:01
Want to know why so many posts start with 'Trans people should have full rights...but'...?
Because the equality act is being manipulated to elevate the rights of one protected characteristic over another.
Being mis-used. Being breached, in fact. It smells wrong, it feels wrong, it is wrong.
Because the equality act is designed to be fair. All protected groups have equal value.
It's got the word in the damn title.
But the one thing this doesn't feel like, is equal.
Equality decisions must fairly balance the needs of everyone affected. This does not mean treating everyone the same. Because sometimes treating people differently is the least discriminatory outcome overall.
So when a business wants to implement a new policy they must take into account how it will impact on all the protected characteristics and then work out the fairest and least discriminatory way to do it. Life doesn't happen in a vacuum. A rule for one will impact others too and the Equality Act has been designed to reflect this reality. It is perfectly legal to discriminate against someone if overall it's the fairest thing to do for all concerned. The key phrase here is 'a proportionate means to a legitimate aim'.
And in no-one's book does fairness mean boys' sleeping in girls' accommodation, beating them at sport, making girls uncomfortable or working in a rape refuge.
It is not transphobic to raise this at work, in school, in leisure activities.
The gaslighting has to stop.
What we have been witnessing is no longer about fairness and inclusivity, it's about a cohort of men actively campaigning to hoodwink or coerce the public into validating NOT their identity, but their authority.
Can a refuge for women employ only women staff? Yes, of course they can. We all accept this because despite it being unfair to men it is overall the fairest thing to do for everyone involved. And for exactly the same reasons, it is lawful to exclude people who have reassigned their sex/gender, from that job role. In this instance, the internal gender feelings of the employee is not as important as the impact of their perceived maleness. The needs and impact on vulnerable women seeking refuge are greater than the needs and impact on a transgender person seeking employment. In this instance the balance falls squarely favour of women.
A transactivist will want everyone to draw everyone's attention solely to the impact and unfairness of that situation on the transgender people and claim DISCRIMINATION!. But that's just not how it works. It's written down in law – Occupational Requirements Schedule 9 Part 1.
There a lots of these legal exemptions written into Equality Law. They have been put there to be used and to protect women. We have to start insisting that they get applied. All of us. Now.
Here are some more examples that this time apply to services (Schedule 3, Part 7 Sections 26-28).
Can a woman ask for a female-born HCP? Yes, she can. It's not transphobic to say no to a transwoman in that context. She's not saying no because they are transgender – it's because they were born male and as someone born female she prefers the same.
It's written in law (Schedule 3, Part 7, Sections 26-28) and examples are set out in the Equality Act: “If a service is used by one or more people or involves physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex”.
What about changing rooms? If a TIM wants to use a female changing room with individual lockable cubicles and no-one minds, then fine. The overall balance is fair. But if people do object, and for reasons of privacy, dignity and safety when they in a state of undress, and they don't feel able to use the changing rooms with just a flimsy curtain that doesn't close properly, then the balance of fairness changes.
The equality act does not say oh well, too bad. The retailer must take into account the impact on other people too (women). If there are reasonable options available to the retailer that makes it fairer for all then they must consider them.
Insisting all transgender people must use the facility of their natal sex would be unfair to them, but this doesn't mean the only fair option is to allow them into the facility for the opposite sex or to make the whole thing uni-sex and to hell with how the women feel. It could be enough to provide them with an alternative, just for them. This is a fair balance that considers everyone.
But a retailer doesn't know the impact on us unless tell we tell them. Women are socialised to not object. Which is part of the problem. Let's stop doing that. Let's hold our retailers to account to uphold the equality act by telling them we object, and why. They must take that into account.
Don't wait for it to actually happen. Get them to formalise their policies and insist they take women seriously from the start.
What about fairness in sport?
The equality act is quite clear. It's written into Equality law Schedule 16 Part 1. It's is entirely lawful to restrict participation of transgender people if this is necessary to uphold fair or safe competition.
“A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.
The IOC have issued guidelines that rely on testosterone being the determining factor and deciding that reducing it will eliminate the advantage TIMs have. But when men are routinely beating women, it's quite clear that this is not an adequate determinate.
Sporting bodies, Swim UK, etc, should be able to provide evidence of a level playing field. Otherwise it is neither fair or safe for women and this is in breach of equality law.
What about communal accommodation - Girl Guides, school trips, dorms?
Again there is a exemption in the equality Act to deal with this (Schedule 23). It explicitly states that transgender people can be excluded from communal accommodation for use by one sex if that is that's the fairness thing to do overall. In other words, the least discriminatory option. The needs of all pupils must be considered. The protection of the dignity and privacy of girls, is a legitimate aim. Furthermore, requiring pupils to share accommodation with the opposite sex raises specific issues around menstruation, risk of pregnancy, etc. Any institution which fails to acknowledge and accommodate these issues when formulating policy will risk breaching the EA.
The EA does need tightening up. Not ripping up. TIMs are already assuming they have a whole bowl of fruit and making everyone else assume it, when, in actual fact, they only have a couple of plums.
It's now no surprise that the favoured narrative is that trans people are oppressed, abused, murdered, at risk. Because it is that description that has somehow elevated the protected characteristic of 'gender reassignment' above 'sex' in people's mind. It's completely wrong.
They have equal value As does sexual orientation. Claiming lesbians are transphobic for not sleeping with natal males, is NOT upholding the equality law. And I realise it's only individuals who are mainly saying this, but Stonewall have refused to clarify that homosexuality means same sex attraction.
We have to change the narrative here.
We can change it. We have the right to change it.
We just need to do it.
iamawoman · 22/02/2018 20:11
Standing ovation from me - so eloquently put datun - (not one hint of terfiness in there 😀(now how can we get this message out there - and why are organisations such as wepuk still kicking out women who refuse to agree that a a transwoman is a woman and there is a debate to be had about sex as a protected characteristic!!
whoputthecatout · 22/02/2018 20:26
Well said Datun: you deserve more than , for life and bouquets of .
I am in correspondence with my MP and his latest missive says he has sent my correspondence to Amber Rudd (my last went to Justin Greening). Got a response from her - a bit Meh - still waiting for Rudd.
I think he is sympathetic reading between the lines - or maybe it was that I said I could never vote for him again if he supported GRA - but I would like to refer him to this Mumsnet thread with your permission.
Materialist · 22/02/2018 20:27
This reply has been deleted
Message withdrawn at poster's request.
HaruNoSakura · 22/02/2018 21:00
I hate to rain on the parade, but although you've done an excellent job going through the Equality Act 2010 (EA2010), there is also a lot of Government issued guidance on how the EA2010 is to be interpreted that also has to be taken into account. As I've mentioned in a previous post on this board this guidance (which can be found either through the Equality and Human Rights Commission, or through publications released by by the Government Equalities Office and Dept for Education) is taken seriously by the legal system (less so when the Government themselves are a party in the dispute, but outside of that scenario it's something that has to be factored in) and is given serious prominence when deciding if an organisation has acted legally or not. As a result companies, charities, and other private organisations, will tend to adhere to what's detailed in these guidelines because that is the safest course of action to take, legally speaking.
So for instance, in the literature designed for easy access to employers, the guidelines state that:
" Use of facilities – a trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full time basis they should be afforded the right to use the facilities appropriate to the acquired gender role. Employers should avoid discriminating against anyone with the protected characteristic of ‘gender reassignment’. Where employers already offer gender-neutral toilets and changing facilities, the risk of creating a barrier for transgender people is alleviated"
Note the use of the language: facilities include toilets, changing rooms, and locker rooms. Also note the last sentance: "Where employers already offer gender-neutral toilets and changing facilities, the risk of creating a barrier for transgender people is alleviated". In other words, if the employer only creates gender-neutral toilets/facilities in response to having a trans employee and then demands that the trans employee uses that facility, that would be considered a breach of EA2010.
This also continues into service provision. So for instance the Governemnt issued guidelines for service providers around facilities is that:
"A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender on a full-time basis they should be afforded the right to use the facilities appropriate to their acquired gender. Service providers must avoid discriminating against anyone with the protected characteristic of ‘gender reassignment’."
Likewise with the use of exceptions. The guidance issued defines those areas when exceptions to EA2010 s7 can be made, but also points out that these exceptions should only be made when an organisation has sort ways to enable full inclusion and can only invoke the exception if no other way can be found. Likewise the exception can only be used as an exception (in other words, the exception to how similar services are provided, not the rule) and, as such, the guidelines state that exceptions should not be "treated as something and organisation should do".
This is especially important when considering Seperate/Single Sex Services. Yes, they can exclude trans people but only as an exception, and only in exceptional circumstances, which is kind of a double whammy. Even then, should the organisation in question meet the qualifying condition of 'exceptional circumstances', that organisation is still expected to:
"demonstrate that the way [they] have approached a situation is a ‘proportionate means of achieving a legitimate aim’ and so is objectively justifiable [(and an objective test of if something is reasonable is a tricky beast to get past the courts)]"
^"[They] need to be able to show that there is no less discriminatory way to achieve the aim"
and "the service provider still has to seek a way to provide that service to people with the protected characteristic of gender reassignment."
Probably the most stark part of the issued guidelines is the statement that:
"The Equality and Human Rights Commission provides guidance on how services should apply these exceptions. In general, it is very unlikely that any exceptions will apply in ordinary 'high street' service provision situations."
Wetdogloveshubert · 22/02/2018 21:04
My husband asked me why I don't stop reading trans threads on here as they were making me so ANGRY. But this is the answer to that. As a woman, mother of a daughter, woman in business, and all the rest, this affects me. And I'm so ANGRY about this bullshit.
This thread gives me hope. And fucking AMMO. Thank you.
Ereshkigal · 22/02/2018 21:15
Haru, I agree but I think that is dependent on public perception. Also a question for you - if the EA prohibits indirect discrimination against trans people by asking for identity documents which may out their sex, but other laws mean that employers have to ask everyone for such identity documents to prove they are who they say and have the right to work in the UK - who do you think would win in a discrimination case?
Ouchbirthhurted · 22/02/2018 21:33
Thank you for that clarification.
I think we should fight using the tools we have - so the equality act exemptions should be argued for, pointed out, explained to others etc.
But the fact remains that trans women aren't women, and times have changed. Lots of intact males who are acting like males, some of whom look like males, are demanding access to places they have no business being and claiming they are women. Having lots of entitled people with penises in female spaces is not going to work. Some complicated laws about equality are no use to people getting raped in DV shelters by a penis owner who says they are a woman. They are no use to a teenage girl changing in topshop with no assistant around. Intact males do not get to go into those spaces on their own say so.
Even if we were going to have women with penises and women with vaginas we would still need sex segregated spaces to keep the vagina women safe from the penis people 'falling' on them and such-nonsense like that man who got out of a charge of rape by claiming this. FFS
ExhaustedPigeon · 22/02/2018 21:46
I’ve not posted here before but been reading a lot recently. I’ve just made DH watch the itv tonight with me and he’s finally starting to get that this is an issue. In a previous thread someone posted a link to a page giving information about what is / has happened in the UK today but I can’t find it. Can anyone post it please? He thinks it’ll never actually happen
OlennasWimple · 22/02/2018 21:55
A reminder to MNers in England that the Standards for School Premises summary here are explicit that separate toilet and washing facilities must be provided for children above the age of 8. Unisex facilities are acceptable only where there is a proper floor to ceiling door
boatyardblues · 22/02/2018 22:02
That guidance that HaruNoSakura linked to. There is zero mention of impact assessing waving the TIM into the women’s facilities or recognition of intersecting protected characteristics. What about Muslim and Hasidic Jewish women who cannot share mixed sex facilities? Or facilities used by minors, where safeguarding considerations apply?
PencilsInSpace · 22/02/2018 22:31
HaruNoSakura Guidance, even that produced by the government, is subject to judicial review where it has misinterpreted the law.
It takes a lot of time, effort, money and above all bravery to challenge this shit but it can be done. Sex is a protected characteristic in the equality act and there are exceptions written into law that we are supposed to be able to use. If guidance is preventing us from exercising our legal rights then let's raise legal funds and challenge this.
LangCleg · 22/02/2018 22:50
HaruNoSakura - thanks for the coverage of the guidelines. But the salient fact you're missing is that this guidance has never been tested in the courts. Barely any of the moves to discount women's protections and interests under the EA in favour of trans males have been tested in the courts. We won't know whether the guidelines would stand until someone takes issue with them and brings a case.
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