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?

Haru

But the exemptions can be invoked if they are objectively justified and meet the test no? I’m not sure the relevance of the landlord case because I’m talking about providing a third space.

Also failure to address the issue of creating an unsafe space for women to my creates a detriment for women for which the service provider is liable

HaruNoSakura the reference in the EHRC code to 'acquired gender' means the new gender that had been acquired through obtaining a GRC.

Whilst I agree that there are limited circumstances in which a transwoman who has a GRC can be lawfully treated differently from other women, that part of the guidance is not at all relevant in relation to people who have yet to obtain a GRC.

Speedy, I'm just trying to get my head around all this but I couldn't see any reference to needing a GRC to be protected in respect of gender reassignment under the equality act - I read it as saying that a person just needs to be living as another gender or proposing to do so to be protected. I can't see the GRC reference - where did you see that please?

@Speedy85

No. Because the Codes were written in specific reference to the Equality Act 2010, which does not require somebody to have a GRC to have the protected characteristic of Gender Reassignment. Interestingly enough, the Statutory Codes use the phrases "according to the gender role in which they present" and "acquired gender" synonymously and interchangeably within the same relevant segments when referring to anyone with a s7 characteristic. I just use "acquired gender" in my posts because it's a sum total of two words, as opposed to nine.

@Elletorro

The provisioning of a third space doesn't come into the equation. Either the service provider meets the qualifying threshold that allows a service provider to exclude a transsexual person from the service, in which case the service provider is under no legal requirement whatsoever to provide an alternate space for that transsexual person, or the service provider doesn't meet the test, in which case only offering the third space instead of the use of the single-sex service would be ruled unlawful. Note that this applies specifically to service providers, and because of the OP post, this response has been specifically tailored to high street type service providers.

Speedy, I'm just trying to get my head around all this but I couldn't see any reference to needing a GRC to be protected in respect of gender reassignment under the equality act - I read it as saying that a person just needs to be living as another gender or proposing to do so to be protected. I can't see the GRC reference - where did you see that please?

This is not straightforward unfortunately but will do my best to explain my understanding:

1. If you are a transwoman with a GRC then your protected characteristic of sex under the Equality Act 2010 is female (by virtue of the Gender Recognition Act 2004) and you will also have the protected characteristic of gender reassignment. If you are being treated differently to other female people (ie biological women) then this would be either discrimination on the basis of the protected characteristic of gender reassignment. Such discrimination must be justified (eg relying on Sched 3, para 28 re: provision of single sex services) in order to be lawful.

1. In the case of a transwoman without a GRC, their protected characteristic of sex will continue to be male but they will have the protected characteristic of gender reassignment. Therefore, it is not as simple as showing that you are being treated differently from a biological woman in order to show discrimination. A biological woman is arguably not an appropriate comparator for indirect discrimination because they are different from the GRC-less transwoman both in terms of the protected characteristics of sex and gender reassignment. It's still important that people undergoing the gender reassignment process have access to services etc, but if these can be provided through the use of separate unisex facilities this will often be acceptable.

No. Because the Codes were written in specific reference to the Equality Act 2010, which does not require somebody to have a GRC to have the protected characteristic of Gender Reassignment. Interestingly enough, the Statutory Codes use the phrases "according to the gender role in which they present" and "acquired gender" synonymously and interchangeably within the same relevant segments when referring to anyone with a s7 characteristic. I just use "acquired gender" in my posts because it's a sum total of two words, as opposed to nine.

I disagree although it's possible we're talking at cross purposes. As my posts above indicate there are subtle differences in the application of the Equality Act depending on whether you have a GRC or not. Further, my view is that the majority of the references in the EHRC codes to transexuals are intended to refer to people who have been through the process and got a GRC (the Govt's expectation was originally that most trans people would do this). There are some references to treating people in the gender in which they present, which would have been intended to include those going through the process of living in the opposite gender prior to obtaining a GRC, but it's important to note those references are often qualified.

Let's take the service provision guidance as that is what the OP was asking about.
www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

13.57
If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present...

13.59
Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

Points that I think are important to note are:

A) The paras above are written on the assumption that the service provider provides for both sexes with no gender neutral provision. It does not consider situations where there may be a gender neutral option in addition to single sex services. It's worth noting that eg the EHRC guidance for schools does approve of private gender neutral spaces being offered to trans pupils when changing for PE. So I wouldn't take the above paras as evidence that third spaces are never an option.

B) Whilst both of the above paras are framed in a positive way, the obvious implication from para 13.59 is that if a transwoman is clearly distinguishable from biological women then it may be appropriate to treat them differently. The obvious example as in my posts above is a transwoman who has not had surgery in a communal changing room. A more subtle example would be someone who looks very much like a man (eg because they are just beginning their transition) wanting to use the female changing rooms in a clothes shop. IMO, if there is a private gender neutral space it then it may not be a breach of the Act to ask them to use it.

As mentioned in my post above though, whilst I think the GRC could be relevant to whether a person is likely to be able to successfully sue a service provider if they have been excluded from a single sex space and offered a gender neutral space instead, in reality this probably won't inform any shops' transgender policies etc. because it isn't obvious who has a GRC and who does not. The guidance above does say that service providers can ask to see a birth certificate where they need to know someone's legal gender (para 2.27) but this obviously isn't something which people are going to ask to see in order to access the changing rooms at a clothes shop.

Behold my complete lack of surprise that Stonewall may be deliberately misrepresenting what the law requires.

Behold my complete lack of surprise that Stonewall may be deliberately misrepresenting what the law requires

I agree that Stonewall is misrepresenting the law

I also agree that there seems to be possible confusion about 'proportional and legitimate aim'

There are the notes from the section on single sex services - where it is legal to discriminate based on single sex.

Then there is the GRA which by law allows someone to be treated as a member of the newly acquired sex.

Then there is the part where a provider is allowed to discriminate if it is proportional.

And seperately to that - gender reassignment is loosely defined - has there ever been a test case to determine what gender reassignment is and isn't?

I've seen people say they've had gender reassignment surgery and it turned out they meant facial feminization surgery, which, um, what? None of these terms can be reliably interpreted to mean anything clear, which I suspect is not an accident - easier to push through the edge cases if the language is deliberately unclear.

yetanothertranswoman I'll try to summarise the law in case this makes it clearer:

The Gender Recognition Act 2004 provides for a process for people to obtain a GRC. It says that if you obtain a GRC you legally change sex. However, it also says that this is subject to other provision in the GRA 2004 or any other law (see s9(3) www.legislation.gov.uk/ukpga/2004/7/section/9). So this basically means that transwomen with GRCs are treated as women, except for where the law provides for them to be treated differently.

There are a number of situations in the Gender Recognition Act 2004 where it says it's OK to treat trans people differently, ranging from inheritance of peerags to government pensions.

Then you have the Equality Act 2010 which has a concept of a protected characteristic of gender reassignment for people who are planning to undergo, are undergoing or have undergone gender reassignment. It bans direct discrimination, indirect discrimination, harassment and victimisation on the basis of gender reassignment in certain contexts (eg employment, provision of services etc).

Direct discrimination is treating someone differently just because they have a protected characteristic - eg 'you can't shop here because you are transexual.' Direct discrimination can never normally be justified but in the case of gender reassignment there are some specific situations where the Act says it could potentially be justified such as in the provision of single sex services. It's still up to the service provider to prove that their discrimination is a proportionate means of achieving a legitimate aim if they want to do this - it's not a blanket exemption.

Indirect discrimination is doing something which appears neutral but negatively impacts a group with a protected characteristic more than others. Let me give an example from the employment context for the sake of simplicity, if an employer has a strict attendance policy with limited absesnces permitted this is likely to negatively affect people going through the process of gender reassignment as they are likely to need time off for surgery. As I've said in my posts above, I think that there are some real nuances about how indirect discrimination applies to transpeople in the context of service and my view is that it could be affected by whether they have a GRC or not, as for indirect discrimination you need a hypothetical person to act as a comparator to see whether transpeople are negatively affected worse. If you have a GRC then the comparator is straightforward (you compare your treatment to someone who was born the sex you acquired through obtaining a GRC), but if you don't have a GRC then it is more complicated. Indirect discrimination can always potentially be justified if the test mentioned above is satisfied (ie proportionate means of achieving a legitimate aim).

Then you also have harassment (there's a complicated definition of this but basically it would cover things like subjecting someone to verbal slurs) and victimisation which is treating someone badly because they have complained/brought a claim under the Equality Act (eg 'you are completely banned from being in this shop because you complained about the changing room policy and threatened to sue us').

I hope that's clearer. Not an easy area of law to get your head around IMO!

*peerages not peerags.

Urgh I wish we could edit!

I've been thinking of a number of scenarios - just from a legal point of view.

A transwoman who did not have a GRC could go into a male space that has been designated as male for legitimate aims as they have not got a GRA.

If a pool said that they had decided to make changing rooms for people who were only for male or female and they decided to say that there was a legitimate aim, would there be discrimination for someone with a GRC if no alternate changing rooms were provided?

Im just gonna lurk as i work in a dress shop

We do have a few trans customers but to my knowledge they have never asked to use the changing rooms (lodas of our customers dont to be fair)

They are rubbish changing rooms for security and privacy, i have asked a man to come out of them as he was talking to his wife...another was 'allowed' to stay as his wife is disabled

One lady was unable to come out on to the main floor to look in the better mirrors if there was a man out there...one of us had to stay lookout

@Speedy85

No. Where the Codes specifically cover gender reassignment they cover gender reassignment solely under s7 Equality Act 2010. It makes no difference where the person covered by the codes has a GRC or not. Those sections of the Codes are not dealing with s11 characteristics, which are covered elsewhere. It's really important to know this because this is part of the determining factor in deciding if any act of discrimination is a s7 breach, or a s11 breach, or a breach of both.

It should also be noted that Education and Service Provision are covered by separate sections of the Act. As a result, if you read through Services, public functions and associations Statutory Code of Practice you will note that the Codes specifically mention that they don't cover a large swathe of the Equality Act as it relates to education. As a result, any conclusion drawn from guidance issued to schools won't apply to the guidance issued in the Services, public functions and associations Statutory Code of Practice where the Code offers guidance otherwise.

Section 13.9 (which is the section used in tertiary guidance stating that challenging somebody's use of facilities should be done with care). There's a classic mistake to make here. When following statutory codes issued by EHRC care must be given to what is written, and never to what is not written. At no point in the Code does it state that if 13.9 doesn't apply then a transsexual person should not be treated as as their acquired gender, and care should always be given to ensure that store policies reflect this. Requiring a person with a s7 characteristic to use a third option instead of the option matching their acquired gender would still amount to discrimination as discrimination occurs at the point when that person is barred from accessing the service of their acquired gender. Indeed, in this situation that person is still covered by sections 13.6, 13.57, and 13.58 of the Code.

i.e. "Where an exception permits discrimination in relation to one protected characteristic, service providers, persons exercising public functions and associations must ensure that they do not discriminate in relation to any of the other protected characteristics" and "If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present", and that "The intention is to ensure that the transsexual person is treated in a way that best meets their needs". As I mentioned in my reply above, if a service provider is found to have acted lawfully in regards to a SCH3 Part 7 s28 Equality 2010 exemption they are not required to provide a third space, and if they have not acted lawfully in regards to the same, then forcing a person with s7 protection to use facilities that does not match their acquired gender amounts to unlawful discrimination under the Act.

Likewise, as mentioned previously in this thread, there is already case law in this regard to the provisioning of seperate-sex services in the context of of a high-street style environment. The case hinged on the fact that the claimant had been barred from accessing the facilities designated for use by women, and the judgement ruled in favour of the claimant.

And again, I'll point out that because of the OPs first post, I'm talking about the provisioning of separate- and single- sex services in a high street style environment and how this relates to the Equality Act 2010.

If a pool said that they had decided to make changing rooms for people who were only for male or female and they decided to say that there was a legitimate aim, would there be discrimination for someone with a GRC if no alternate changing rooms were provided?

Would that ever happen? I suspect most pools will have mixed family changing facilities (or they should) for reasons of inclusion: my daughter has autism. Without a family changing room her father wouldn't be able to take her swimming. I'd be surprised if there were many pools (or indeed any) without some sort of gender neutral provision.

But I realise you're specifically talking about the legal aspect so that's probably not all that relevant.

HaruNoSakura I think we'll have to agree to disagree. I think your approach is incorrect and too simplistic, ignoring the mechanism for indirect discrimination claims. Whilst in disability claims it is possible to rely on s15 to avoid the need for a comparator, the same is not true for the other protected characteristics.

I think that it is also not right to refer to breaches of ss7 and 11. They are the protected characteristics and it is not possible to breach them.

The parts of the Act which can be breached are the sections which prohibit different kinds of discrimination in different contexts (eg s29(2) which prohibits direct and indirect discriminatio on the grounds of gender reassignment in the case of services). In the case of indirect discrimination it's vital to identify the correct comparator which is where the GRC comes into play as explained.

Aha! This wasn't the case that I was looking for (I'll continue to look for that) but I think it proves my point in respect of comparators for discrimination claims. It's in a very different context, but that the context does not change the way that discrimination is judged by the courts.

www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

68. Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.

69. A male prisoner (who wishes to remain male as most do) does not need to express his gender identity in any purposeful way. He does so innately through the male clothes he wears and certainly does so via prison clothing. Transsexual prisoners are treated differently (and wish to be so) and as such have a number of advantages in terms of clothing and lifestyle not available to the remainder of the male prison population absent privileges.

70. I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner – indeed the reverse. Consequently, the second question I posed does not arise.

Sorry for the typo - the post should have said that the context does not change the way that discrimination is judged by the courts (ie through the use of an appropriate comparator).

@Elletorro you may be interested in that case. I'll continue to look for the other one that I have seen (I'm pretty sure I didn't imagine it...).

@Speedy85

The case you've cited. It's a prison case. You should know that there is as wide a gulf as it's possible to get when consideration is being made of what is objectively justifiable between the consideration of what is an objectively justifiable exemption being applied in a prison setting and the same exemption in a high street setting. The scenarios are so utterly different, I'm struggling to see any points of comparison a judge would use when making consideration as to whether an exemption would be lawful in a high street scenario.

No, my approach isn't simplistic, as it takes into account Chapter 5 of the Code, as does the EHRC when it approaches ss13.57 - 13.60. 13.60 specifically references the beginning of the chapter, as the beginning of the chapter deals with when exceptions can be applied, what the test is and, very importantly, linking back to 5.25 - 5.36, which deals with "When can a provision, criterion or practice be objectively justified?" in the section specifically reserved for, yep, you guessed it, Indirect Discrimination. To make it easier for service-providers to understand the law and follow the guidance the EHRC has already incorporated the work of taking into account Indirect Discrimination as it relates to when it is lawful or unlawful to exclude anybody from a service based on a protected characteristic.

As for referencing a breach of ss7 and 11, you should be able to work out that's shorthand so that everybody else reading this thread who doesn't have a legal background know which protected characteristic is being discussed for whichever act of unlawful discrimination is under discussion. This isn't the legal board. Making the discussion too technical only seeks to drive people away from the discussion.

HaruNoSakura These are technical matters and providing a simple but incorrect analysis does not help anyone.

As I say, it doesn't matter that the case was in the context of a prison. The point is that you need to find someone to compare the trans woman's treatment to in order to show discrimination. In the case of a transwoman with a GRC using a shop, the comparison is female shoppers. In the case of a transwoman without a GRC, it is male shoppers. The Equality Act 2010 does not give transwomen without a GRC the right to complain that they have not been treated in the same way as women. It is through obtaining a GRC in accordance with the Gender Recognition Act 2004 which grants transwomen the right to be treated as a woman in most circumstances. The protections prior to that point are more limited and IMO could include use of a gender neutral private space.

As I've said, we'll have to agree to disagree.

You know, you think that those who write the law might be able to clearly outline terms.

Imagine writing a law relating to sex and gender and identity and reality and then allowing a complete mess to result by NOT DEFINING TERMS ACCURATELY.

Don't lawmakers have an obligation to truthfully reflect reality?

What is their definition of
SEX
GENDER
IDENTITY
FEMALE

anyone know?
There should be no concept of 'trans' 'sexual' in law. Its a fiction.
The law has granted that two disparate groups of people be in a constant conflict over a single identity.

I'm also going to say, that the ONLY way out of this mess is to create a watertight legal category for SEX which can neither be 'identified' into nor out of.

The law had little trouble establishing which sex was which when the vote was being denied.

I think we'll have to agree to disagree

No, please don't - this feels like it's potentially more important than all of the self-ID stuff and I don't know how people (myself included) can form an opinion for the purpose of the GRA consultation if they don't understand how the GRA is currently applied.

I don't know whether this was deliberate on the part of the legislators but the law seems very hard to follow in this area (and I say that as a lawyer) and there seems to be a lot of misinformation out there (and on MN) around it, which is not doing anyone any favours.