This advice isn't right from Stonewall, is it?

[yetanothertranswoman]

www.stonewall.org.uk/help-advice/discrimination/discrimination-consumer

From that:

A clothes shop must allow trans women to use the female changing room

I was always under the impression that the Equality Act meant that someone could not be discriminated against if they were undergoing gender reassignment. So they couldn't be sacked if they were under going reassignment and they couldn't be refused service - except in limited areas.

I didn't think it meant that a transwoman could be treated 'as a woman' - I thought that came from the GRC.

So it wouldn't be discrimination if a transwoman was not allowed in the female changing room but was offered alternative changing facilities.

It wouldn't be discrimination if someone under going gender reassignment was refused entry to a woman's group. But if they got a gender recognition certificate, then it would be discrimination (except for reasons of legitimate interest)

That's what I've always thought - there's a difference between the Equality Act - where it's illegal to discriminate against someone undergoing gender reassignment (but you don't have to treat them the same as someone they are transitioning to) but once someone got a GRC, they are now a member of the new sex (although exceptions can be applied)

Stonewall's advice is wrong, isn't it?

I have no idea but nothing that Stonewall does either surprises me or includes me and I'm a lesbian. They've drunk the koolaid.

I thought that even with a GRC, the single sex exemptions still apply ..

Sorry actually you are right - I think there is no legal distinction between sex & gender

I thought that even with a GRC, the single sex exemptions still apply

I don't know - the GRA states that once you get one, you acquire the sex of the new certificate.

But the Equality Act states that it's legal to have single sex exemptions if you are a transsexual

Legally - what happens to someone undergoing gender reassignment when they aquire a GRC and acquire the new sex certificate?

But I'm not sure about the Stonewall advice at all.

X-post

You are right about stonewall - the single sex spaces are allowed to invoke the equality act exemptions to discriminate in those cases (women's refuges etc)

What about changing rooms in clothes shops?

I was under the impression that it was not illegal to tell someone undergoing gender reassignment that they could not use the changing rooms they wanted to - if an alternative was offered - as the service is still being provided to the customer but it's not the same as that of someone of that sex

A person doesn't need to have a GRC to have the protected characteristic of gender reassignment under the Equality Act. According to the guidance to the act, they just have to live as that sex or propose to do so.

Stonewall has alluded to the fact that sometimes it would be for the courts to decide in an individual circumstance, so I guess that the limits of the law won't be clarified until people challenge it in every day situations.

No, it's unlawful in nearly all circumstances for high street-style businesses to not allow somebody with the protected characteristic of gender reassignment to use the facilities of their acquired gender. So that would be things like toilets and changing rooms.

It seems very confusing. No one should be discriminated if they are undergoing gender reassignment.

But what does that discrimination look like - and why bother getting a GRC if there is not much difference between being protected from discrimination under the Equality Act and 'being treated as a member of the newly acquired sex' ?

why bother getting a GRC

For stuff like pensions, I guess.

I can't imagine people are asked to show them in shop changing rooms very often.

I thought the Equality Act was very clear that single-sex spaces could lawfully exclude people of the opposite sex - even when they a
had a GRA and were legally of the same sex - when it was a proportionate way to ensure the provision of that service.

This resource page... thewomensresourcecentre.org.uk/wp-content/uploads/how-legislation-protects-women-only-spaces-and-services-an-overview-june-2016-1.pdf

....says that the notes accompanying the Equality Act actually cite changing rooms in department stores as an example of a space that is a lawful single-sex space.

The Equality Act specifically mentions changing rooms as spaces that can remain single sex and exclude people with a GRC. Stonewall is wrong.

I like that under the schools it says they must respect gender identity but only should defer to oronouns and changing rooms.

No, it's unlawful in nearly all circumstances for high street-style businesses to not allow somebody with the protected characteristic of gender reassignment to use the facilities of their acquired gender.

With respect that is utter bollocks.

TIM denied access to a toilet, police say there is no case to answer.

www.southwalesargus.co.uk/news/16113934.Trans_woman_wants_to_push_for_more_gender_neutral_toilets_in_Gwent/

@ArcheryAnnie

The Equality Act 2010 can be confusing to navigate. Confuses the hell out of me and I'm used to working with the Disability sections of it.

In this case some confusion arises out of the fact that a service provider can show that it is objectively reasonable to provide a separate or single-sex service, but that justification isn't in itself enough to lawfully allow the service provider to stop somebody with the protected characteristic of Gender Reassignment of that acquired gender (transsexual in the terms of the Act) from using that service. To be able to lawfully exclude somebody who is transsexual the service provider must pass a second, more onerous, test to be able to objectively justify it.

So if you look at the link you've provided, pages 2 & 3 deal with what we are talking about. Page 2 deals with setting up a seperate/single-sex service, and the top of page 3 then deals with when a transsexual person maybe excluded from that service. If you look at the examples given for the second part, it's talking about rape and sexual assault group counselling sessions, and domestic violence organisations, a far cry from something like a high street chain dressing room or toilet.

@titchy

per the EHRC (emphasis mine):

Circumstances when being treated differently due to gender reassignment is lawful

• A service provider provides single-sex services. If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender. In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing or has undergone gender reassignment.

A shop that refused changing facilities to a trans person on the basis of their identity would of course be breaking the law. But as long as they provided some facility for changing they wouldn't be. But that facility doesn't need to be the women's for a TIM.

HaruNoSakura
Under the EA2010 is there any difference between the way someone is treated who has a GRC vs someone who does not?

HaruNoSakura I've read it very carefully, as have many others, and come to a different conclusion.

@OldCrone

No, no difference at all for the Gender Reassignment category. Sex as a category is trickier. The differences that we do know about as the result of court cases highlight narrow, technical differences (and these differences are getting narrower all the time). So say we take the example of when somebody can claim a state pension, there will be no difference between somebody with a GRC and without on (I think) the 6th May 2019.

But Haru

Transgender protections extend to those contemplating transitioning. No proof required. By your logic they cannot be denied entry to their preferred changing room.

My understanding is that single sex exemptions can be extended to encompass exemptions of a transgender person. Yes it needs to be justifiable but the fact that women need reassurance that interlopers are barred from entry would strike me as a justification. In addition we have the target study which shows the need for single sex changing in order to prevent sexual assaults. Again justification.

Also section 29 says that service providers should not subject a person with protected characteristics (sex in this instance) to any detriment (subsection 2 c)

Detriment in my view is the exposure to voyeurism again evidenced by the Target study.

There are ways to provide a service to transgender people which do not negatively impact women. Third space.

Are you playing devils advocate here?

My understanding is as follows. I'm just going to refer to transwomen in the following to keep things simple.

A) If it's a transwoman who has been through the full process of getting a GRC (although nb this does not necessarily mean that they will have had surgery), then they have legally become a woman in accordance with the Gender Recognition Act 2004. However, service providers can still rely on the exemptions in the Equality Act 2010 to refuse access to single sex spaces where doing so is objectively justified (the test for which is defined as a proportionate means of pursuing a legitimate aim). In the case of enclosed changing rooms in eg clothes shops which will often have staff nearby, IMO it wouldn't be justified to refuse to allow a transwoman with a GRC to use the women's changing rooms. In the case of a communal changing rooms eg at a gym/swimming pool where the transwoman has not had surgery, then IMO it could be justified to refuse access even if they have a GRC. Although the service provider would still need to see if there is some arrangement that they can come up with in order to minimise the affect on the transwoman (in order to show proportionality as part of their defence) - eg allow use of a private space if there is one or perhaps somehow arrange it so the changing rooms can be closed for 10 minutes whilst they change).

B) In the case of a person without a GRC, they legally retain their original sex. I vaguely recall there was a case a little while ago where some transwomen were refused access to single sex female spaces and there was no breach of the law (I can't recall the name of that case but I'll have to dig it up again and re-read at some point. I think the judge basically said something along the lines of just wanting to be a woman doesn't mean you are one). However, if there is a third unisex/private space that the transwoman wants to use then IMO they would be entitled to use that space (assuming there is no objective justification for refusing that request).

Having said the above, I can imagine that this would be an absolute nightmare for service providers to put into practice, and obviously if a transperson does try to bring a legal challenge then it will be costly to defend it even if the court ultimately decides that there is justification for their treatment. I can see why so many places are just having policies relying on self-ID as you cannot go around asking androgynous customers whether they have a GRC or not, and I imagine that if you tried to have a private conversation about whether they had surgery so you could assess what should be done re: use of changing facilities, it would be very easy to say something wrong and end up with a harassment claim.

I imagine that this wouldn't be a problem with what people refer to as "old school transexuals" as they would probably eg let the swimming pool staff know if they haven't had surgery so suitable arrangements can be made. But I don't know how this will work with the new breed of TRAs who don't think anyone should have a problem with "lady dicks" in women's communal changing rooms etc.

@Elletorro

Not my logic. Just the legislation, the Statutory Codes issued by ERHC (which will be followed by the courts unless an obvious HRA1998 breach occurs, or if following the guidance laid out in the Codes would lead to a perverse outcome {incidentally, I can't think of a single instance when that's happened)), and existing case law.

We already know (there was a post on a thread I think about a year ago under FemChat) that there has already been a case in front of the courts where a landlord barred a transgender customer from using the toilets of their acquired gender, and the court ruled this was a breach of civil law as a result of an unlawful act of discrimination, not only by the landlord, but also by the owner/licensee of the pub. Here we have a case of a high-street style business, lawfully offering separate-sex facilities, barring a transgender person from accessing the facilities of their acquired gender, and being found to have acted unlawfully in doing so for the purposes of the Equality Act 2010. It's no stretch at all to say that exactly the same ruling would also apply to nearly every high-street style service provider.

Hi Speedy

I don’t completely agree about completely enclosed changing spaces. my mother was a design manager and she has horror stories about how members of the public use completely enclosed lockable spaces. It’s not a great solution and often creates a more dangerous and unpredictable environment.

I’d be interested in knowing the case if you can dig it out?