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?

Been reading this debate with interest. Not sure I can add anything constructive but can answer an earlier question.

I have had a Gender Recognition Certificate since they were introduced in 2004. At no point since then have I ever had to produce it for any specific purpose.

I also have an amended copy birth certificate and have only once used that, voluntarily, as proof of age to get a bus pass.

The birth certificate is a copy for such day to day use. The unaltered original is not destroyed.

Thanks for the case law tip Speedy I’ll print it when I get home.

For me this shows how important self id could become in prison particularly as prisons will be exposed to direct discrimination claims

Thanks to pp for explanations! Trying to process, but I'm still not totally clear (i.e. the legal situation).

At the moment, though, trans rights seem to be getting prioritised over women's rights (e.g. see Girl Guides, Swim England, some schools policies, etc). but the underlying legislature is woolly and vague. And therefore frustrating, to me.

So - here, we have two laws - the Gender Recognition Act 2004, and the Equality Act 2010; both have been written in such woolly terms, that lawyers (and non-lawyers) could be argue back and forth eternally, and this is what is happening, at the moment.

I believe the answer is contained in the Court of Appeal case of Croft v Royal Mail www.bailii.org/ew/cases/EWCA/Civ/2003/1045.html. Although this is a pre Equality Act case and in the context of employment, I believe it is still good law, not least because it is referenced in the case of Green, R (on the application of) v Secretary of State for Justice [2013] EWHC 3491 (Admin) mentioned by @Speedy85.

Sarah Croft was legally male in the process of transitioning. Her then employees, the Royal Mail, insisted that she used the disabled toilet. She brought a case for discrimination under the Sex Discrimination Act.

LJ Pill found that whether a legally male transwomen was entitle to use the female toilets depended on "all the circumstances" including the stage reached in the treatment and the employees own presentation.

LJ Parker explicitly rejected the notion that the comparators were male employees and instead stated the comparators were both male and female employees who weren't transsexuals.

Croft was decided before the Gender Recognition Act became law. The evidential requirements for a GRA are so high (2 years RLE, medical reports, statutory declarations etc.) that I am sure that following Croft, for any transwoman with a GRC the comparators would be non-transgender women - regardless of the legal status the GRC confers.

On the other hand, should obtaining a GRC become as simple as filling in a web form (note this is never going to happen whatever David Davies may think), I am sure the courts will have no difficulty in using Croft to ignore the legal gender of the applicant.

Returning to the OP question. I believe that the advice from Stonewall is broadly correct. However, in the case of a communal changing room and a pre-op transwomen, I would expect the exceptions to the Equality Act to apply. I would also expect a transwomen at the start of her transition (i.e. looking very male) to not be protected either under the logic in Croft or under the exceptions. In Stonewall's defence they do refer to the exceptions at the bottom of the web page.

If getting a GRC becomes really simple but someone has transitioned medically, then what happens to the comparator then?

You could have 2 people with a GRC - but one has all the evidence that would have got the comparator with a woman for discrimination cases and another just got a GRC and has little evidence.

2 very different people with a GRC.

Which is why self id is dangerous for transsexuals

Might be that if self ID comes in they sensibly retain the current stricter requirements to apply for an altered birth certificate. Thus needing medical support for that.

Depends how they word the act if it ever gets to that point. As if self ID = total legal status of new gender then a birth certificate change might have to occur.

Though a birth certificate specifically states sex and is I think the only place legally where that changes on documents?

Might be wrong.

Thank you.

Croft was decided before the Gender Recognition Act became law.

I think that's the problem though. There is some stuff in Croft that is still persuasive, but at the time there was only the Sex Duscrimination Act 1974 containing the anti-trans duscrimination provisions and nothing in law saying at what point someone should start being treated as a woman. Now there is - the GRC.

I do think the creation of the GRC helps clarify the comparator issue as in the Green case. Before getting a GRC, transwomen are treated as a man who might need special treatment. It might be unfair to make them use the men's bathrooms/showers because they have rejected that identity, but nor does it mean that they have a right to use the women's ones until they officially become a woman.

Speedy85 we are not going to know for sure until there are more cases in the higher courts.

I am not persuaded by Green. It is only High Court, a very specific context and not fully reasoned.

It is my view the courts will continue to reserve the rights to deal with these issues on a case by case basis.

• It is a difficult area to be prescriptive without risking perverse outcomes.

• It would be strange if the courts treated the passing of the GRA as removing rights that transgender people previously enjoyed.

• The EA is backstopped by the EU Equal Rights Directive. And in the pensions cases, the EU courts have not been too bothered by a lack of GRC. Having said that we are told the EU's jurisdiction is going to end in 18 months so this may be less of an issue in the future.