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.
EQUALITY
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.
HaruNoSakura · 22/02/2018 23:00
@boatyardblues
I'm a bit too tired to want to re-wade back through EHRCs website but off the top of my head the guidance is that religion as a protected characteristic cannot be used as a basis for discrimination against the protected characteristic of gender reassignment for the purposes of EA2010 except where specified under law (which if I remember right those exceptions apply to actual religious institutions {churches, synagogues, mosques, etc} to a very limited degree, and to a broader degree the Church of England as a whole {CofE gets preferential treatment because of the whole baloney about it being the Established Church of the State and Head of State being the Head of the Church, blah de blah [if you couldn't guess, I'm very much for the disestablishment of the Church and putting all religions on an equal footing]). So basically if a Hasidic Jewish woman felt unable to use a shop's changing rooms because it might be being used at the same time by a transgender person that wouldn't count as discrimination.
@Ereshkigal
Legally this is where things get a little bit complex because it's different statutes all coming together. So, it's illegal for any private entity to ever ask to see a GRC under existing legislation. It is not illegal for an employer to ask to see proof of right to work in the UK and this is generally considered best practise where it's needed. However, from what was (still is but not for long) the Data Protection Act, and what is GDPR, almost all the information contained on that proof is considered confidential for the purposes of data protection and that does includes gender. If the employer is also made aware that the employee or prospective employee has one or more of the protected characteristics of EA2010 then that also becomes confidential information for purposes of data protection. So if an employer illegally breaches the confidentiality of protected data that's a data protection violation, and then it knocks on so if the confidentially being breached is a protected characteristic that can then be seen as being a discriminatory action.
e.g. An employer hires two new employees and introduces them to the shop floor, 'Hi, this is Bob, everybody say hello to Bob, he's starting today. This is Alice, she's also starting today but she's got learning difficulties so expect her to be a bit slow.' Spot the problem with that. Unless Alice has specifically told the employer to say this then not only is it i) a shitty thing to say, it's also ii) a breach of data protection, and iii) discriminatory under EQ2010. The employer would never have dreamt about saying that about Bob and we know that because the employer didn't.
Agerbilatemycardigan · 22/02/2018 23:15
Great piece Datun I'll be using it whenever necessary.
Twitter's a minefield CAAKE I've been active on the feminist threads and have been blocked by LM et al.
I also had a delightful trans'woman' send me a dick pic, as well as a load of abuse.
Just made me all the more determined. I don't react well to bullies.
boatyardblues · 22/02/2018 23:19
Gerbil - Are DMs in Twitter linked to the Twitter handle? Could you re-post the dick pic (edited if need be so you don’t get banned) back at the tweeterto show them up? (I guess you’d get another 200 abusive pics, but it feels like these twats need showing up for what they are.)
Ereshkigal · 22/02/2018 23:19
If the employer is also made aware that the employee or prospective employee has one or more of the protected characteristics of EA2010 then that also becomes confidential information for purposes of data protection
Thank you. Yes I didn't think they could disclose. That wasn't really the scenario I was thinking of though. So through seeing ID the employer and potentially someone or others in HR are allowed to find out that a someone appearing to be a woman is a TIM if they only have a male passport etc?
Agerbilatemycardigan · 22/02/2018 23:24
Not sure I'd know how to do that boatyard plus, I wouldn't want you to have nightmares. It was a lot of penis for a 'woman' 
He also sent it to other people on my Twitter feed. Including a lovely transwoman who gets abuse for saying transwomen are men. Like sending a picture like that would change their mind.... 
Datun · 22/02/2018 23:27
HaruNoSakura
Thanks for your post.
It's really useful to have people who understand the law to this depth.
As far as I was aware EHRC produce guidelines, but they are not legally binding.
And that if a company adheres to the guidelines in their processes and policies, their decision making can't be, or can rarely be, contested. It's a form of protection, for them.
But that doesn't mean they have to be followed?
Can you clarify that?
It's undeniable that the guidelines were written at a time when transgender meant a few thousand homosexual transsexuals with gender dysphoria.
Not, any Tom, Dick, Harry or fetishist.
And not to enable said Tom, or fetishist, to become a rape crisis counsellor or beat Serena Williams in the Wimbledon ladies' final.
The guidelines are there for a purpose. And that purpose is no longer tenable. It just isn't.
And the only way to make that public knowledge, and entirely clear to politicians (who seem to be living in a fucking cave), is to demand that exemptions are invoked, irrespective of guidelines.
Women are protected under the law. Because their sex is acknowledged.
And if these guidelines aren't working? Well, then they need to write new ones.
In the meantime, every single woman can push back and force the issue.
Because we're talking about half the population here.
And a handful of piss takers who are managing to right royally shaft all of them.
If a change is what needs to happen, then a change is what we're fighting for.
Because this is old news really.
Women have fought, incrementally, for every single change to legislation that we now have.
All of it. Every last bit.
They fought for political representation and they fought to contribute to the economy.
And now they have the leverage that this has brought them. The leverage it was designed to bring them.
And now they're going to use it.
Datun · 22/02/2018 23:35
As an aside, when Theresa May originally announced on the Pink News platform that she was supporting self ID, a woman from the audience shouted 'you must keep the exemptions!'
Theresa May broke off from what she was doing and fixed her gaze on this woman and said yes! Quite vehemently.
She knows.
She knows if they're going to tinker around with the equality law and the GRA, it's now going to be open to wider scrutiny.
All it needs is numbers.
HaruNoSakura · 22/02/2018 23:38
@PencilsInSpace
So then, judicial reviews. Judicial reviews are tricky. They can't be used to challenge the decision that a public body, like a Government Department, has come to. It can only challenge the legality of the process that led to that decision. So a Judicial Review could look at the process that the Dept for Education and EHRC used to come up with the guidance that they've issued, but as long as the process used was legal then a Judicial Review would do nothing about the conclusions arrived at by the departments (i.e. the guidance issued by those departments). Realistically the only way that would be possible would be if the Judicial Review found that the public bodies were in breach of the Human Rights Act 1998, and that would be unlikely in this case as it was the Government first being found in breach of the Articles 8 and 12 of European Convention on Human Rights ( Goodwin v The United Kingdom 2002, I v The United Kingdom 2002 ) and then the finding in law that the Matrimonial Causes Act 1973 was incompatible with the Human Rights Act 1998 ( Bellinger v Bellinger 2003 ) that resulted in the creation on the Gender Recognition Act 2004 and a little more indirectly the inclusion of Gender Reassignment as protected characteristic in the EA2010. So in effect we already know that through case law both ECHR decisions and what is effectively the child of ECHR, the HRA1998, are tilted in favour of offering both recognition and protection towards transgender people rather than away from them when a conflict in law may exist.
Agerbilatemycardigan · 22/02/2018 23:38
The thing with the TRAs, is that they're a bunch of narcissistic arseholes who only think of themselves.
They were expecting the rest of the female population to behave like their handmaidens do. But what they didn't allow for, which will be their undoing, is that we're fighting for our children and our grandchildren as well as our sisters, friends and mothers.
We're not backing down.
Elletorro · 22/02/2018 23:50
Haru re judicial review
If the government’s equality impact assessments can be shown to be at best slip shod and at worst negligent as per my what is going on with the GRA in Scotland then the process can be challenged?
I don’t think either Goodwin or Bellinger dealt with sex based protected characteristics though? So they could be distinguished?
I think it’s possible to get the Equality and Human Rights Commission to intervene before laws are changed as per what happened with the proposed detention of terrorists without charge?
HaruNoSakura · 23/02/2018 00:21
@Datun
Guidelines issued by a Government Department or Government Office aren't directly legally binding but the weight that a court will give them when making it's consideration as to the legality of something cannot be underestimated, except when it's the Government themselves who are in Court when such guidelines are given a bit less weight (not hugely less mind). As a quick and dirty guide I find it's always worth checking to see how The Law Society implements legislation and guidance when it effects them. The Law Society has as a high a stake as it's possible to get as a non-government organisation in making sure that it acts legally. It also happens to know where you can find the best legal minds around to help you reach those decisions because those minds are members of that society. Of course, they could still be wrong, but I wouldn't want to put my money against them.
As to when the guidance was issued - they were only published 27 months ago. That's why it feels like this has all come out of nowhere. The guides get published, it takes for people as individuals to find them. They then raise it with whatever private organisation, who might or might not act on it immediately but will eventually forward it on to HQ, who hands it over to Compliance, who consult and draft new guidance for company based on Government guidelines, which then gets distributed down and implemented. This happens in a handful of big companies, word-of-mouth spreads, the whole thing picks up steam, the media eventually pick up on it, and then it snowballs. If you aren't aware of it, it looks like it comes from nowhere, but you start to trace it back, you find that the guidance was published 26th November 2015, and then you ask, who was Prime Minister at the time, and who was in the relevant Cabinet positions? And all of a sudden a lot of questions get answered.
Datun · 23/02/2018 00:41
you find that the guidance was published 26th November 2015,
Which is right around when Maria Miller was working on and publishing the transgender equality report?
Which they now know was unfairly written, and the trans organisation they consulted advocates for violence and one of their members allegedly smacked a pensioner in the face, as a result of the report. And its implications.
And who is now going to trial.
Justin Greening backpedalled on TV to say they need to take a further look at this.
So what are those implications?
They know the report was woefully one-sided. They also know that no women's groups submitted written evidence.
And they have promised to take a look at the exemptions. As a result of feminist action.
What can they legitimately do? I believe they have said they won't touch the exemptions.
Would they make that assertion, whilst knowing that they had no teeth?
What power do they have, if they truly think that the tide is turning against them and women are not going to stand for this?
Sorry for all the questions HaruNoSakura, but you are an absolute mine of information. Thank you.
Datun · 23/02/2018 00:48
Ereshkigal
We all know if the ruling party thought it might win them the election, those guidelines would be rewritten to be fairer to women.
That's exactly what I think.
I honestly can't see them being able to justify legislating for a fetish.
A cross dressing fetish is now part of the trans umbrella. It's really not complicated.
HaruNoSakura · 23/02/2018 01:05
@Elletorro
Goodwin v The United Kingdom, 2002 created a ruling where the UK Government was required to produce a mechanism that allowed for official Government recognition of the change of gender of post-operative transsexual. The Act that was produced became the Gender Recognition Act 2004 which removed the requirement for surgery to have been carried out and contained within it a mechanism that allows a person to legally change their gender and have that recognition of that new gender legally enforceable, except that exactly the same mechanism also meant that the person also legally changed their sex and that recognition of their new sex is also legally enforceable, because the mechanism deliberately conflates sex and gender.
And then rolls in the Equality Act 2010, with a change in language from transsexual to transgender, and many protected characteristics, two of which are Gender Reassignment and Sex. Now it gets a bit trickier. And then comes the Government guidelines on how EA2010 s7 is to be interpreted and it's very clear from them that the direction of travel from the Government on this is that apart from the exceptions provided in EA2010 anybody who falls under the protected characteristic is be treated as being the gender that they present, and that they don't a GRC for that to happen. So now comes the crunch question. Legally, does that mean that that person should also be treated as having that sex for the purposes of a protected characteristic? And this is why I keep on coming on back to the point about not being in a rush to take this into a court. All because of the mechanism that deliberately conflates gender and sex in GRA2004, the wording of EA2010 which does not specify that sex is not gender, and the wording of the guidance which sets out a clear direction of travel for interpretation of the law, a clever barrister could a make a really good case out of that and as a result have a court set judicial precedent that determines that a person's presentation of gender under the protected characteristic of gender reassignment also counts as their sex under the protected characteristic of sex, except where otherwise prohibited under EA2010. And if that happens you're looking at having to get primary legislation passed to effectively overturn the decision and at the end of the day which party are you going to trust to do that?
As to whether the Scottish Government has acted legally in its consultations on it's reform of whatever it's equivalent of GRA2004 is, I don't know enough to say. I'd have to go through everything, all the minutiae of it, and even then the complexities of the legality of Government consultations is too far away from the areas of law that I deal with for me to be confident in coming to an opinion about it.
HaruNoSakura · 23/02/2018 01:35
@Datun
Oh, and conflation and sex and gender. There's an impish part of me that wants to say 'yes' with a wink, but actually a really banal explanation for it, and I will try and shorthand this as much as possible, because I'm off to bed soon.
Basically the law needed to ensure that when somebody's gender was officially recognised as being changed that change would also be legally enforceable to all areas where 'sex' was being recorded and vice versa. That way just on a Governmental level departments weren't going to have to rewrite masses of forms, and laws themselves weren't going to have be rewritten to make accommodation for the changes that GRA2004 brought in (in other words laws weren't going to have be rewritten to say gender instead of sex or vice versa).
And with that I'm going to call it a night.
Datun · 23/02/2018 02:41
It's probably me, because I'm tired.
But I'm not sure I follow.
Are you saying they talked about changing gender (because you can't change sex), whilst realising that it gets instantly translated into sex, in terms of rights?
So not bothering to be specific, because they're lazy arses. And not letting it matter anyway, because it was rights based on the opposite sex's, sex that was the goal all along?
DoctorW · 23/02/2018 08:40
I'd like to comment on the law and guidance:
The Equality Act is the legal document that sets out the principle of the law. It is up to the courts to rule on whether someone is in breach or not.
Guidance comes in many forms. It has been written to help people interpret the law but it is not legally binding and does not limit what a court can rule. Some guidance however carries more weight than others and this is crucial to understand.
- When the Act was approved by parliament so was a set of explanatory notes. These notes are highly influential and the first port of call for reference.
- There is also guidance produced by the Equality and Human Rights Commission (EHRC). This is a non-departmental public body and works independently to government. One of it's roles is to advise on and to enforce the Equality Act. It is not a court - but it can take institution to court to address a significant breach. It has produced:
a) Statutory Code. This is parliamentary approved guidance and a court will look to see if this has been followed. There would have to be a very good reason why not.
b) Technical guidance. This is not parliamentary approved but should still be considered important because it has been written by the EHRC.
I have written a summary document setting out Equality Law and all the relevant explanatory notes and EHRC guidance in one place. fairplayforwomen.com/equality-act-2010_womens-rights/
- Then there is guidance produced by the Government Equalities Office. This is a government department. It is not independent. You'll notice that it's transgender guidance is written with (by!) transgender lobby groups like Gendered Intelligence. You'll also notice is it heavily focused on transgender people. It is biased. Courts will look to see if organisations have followed this so it will have influence. Haru has kindly quoted some of this guidance up thread.
So yes we have a mountain to climb. The translobby have been influencing policy makers for years. They have been involved in dictating the guidance that's out there. It's unfair and unbalanced.
We either roll over and let them take womanhood or we start to speak up. It's all we can do and mumsnet is uniquely placed to do this. I can help with advice but I'm a lone voice on my own. I can meet with the government to raise concerns (which I've done) but I can be dismissed as fringe and unrepresentative. The only way things have any hope of changing is when the numbers of women speaking up significantly increases.
Equality Law is based on fairness for all - its about being proportionate and reasonable. All this is subjective and based on public opinion. Society dictates what what's reasonable. The pendulum has swung too far and we need to pull it back so women and biological sex is given the weight it (we) deserve.
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