‘No suggestion of amending the Equality Act’

[Thelastempressofconstantinople]

I’ve just been looking at the consultation documentation. One of the things that struck me about it is the repeated ‘reassurance’ that there is no intention of amending the Equality Act exemptions.

Er, isn’t this completely disingenuous and misleading? So misleading that it suggests whoever framed the consultation had a very poor grasp of the legal issues?

At the moment the Equality Act exemptions effectively permit the exclusion of transwomen from certain female only spaces and services if certain (fairly demanding) tests are met. Unless these tests are met, transwomen (but not men) have to be admitted.

But at the moment the transwomen who benefit from this have a GRC. The effect of the change to self id is that a far wider range of transwomen (self identified) will have to be admitted to female only spaces and activities unless the tests for exclusions in the Equality Act are met.

Presumably this effect could be avoided by doing exactly what the consultation boasts won’t be done - amending the Equality Act to provide for a far wider range of circumstances in which transwomen may be excluded from female only spaces and activities.

If the sole intention behind amending the GRA really was to ease the ‘bureaucratic’ process of applying for a GRC, why wouldn’t this corresponding amendment be made to the Equality Act? After all, if the concern really was just bureaucracy, that would deal with the problem, wouldn’t it? Protect women and single sex spaces while assisting transpeople by permitting self id?

It seems that (a) whoever issued the consultation hasn’t understood how the Equality Act and the GRA fit together and (b) that what is driving this isn’t just a wish to avoid bureaucracy, expense, etc- but a wish to invade women’s spaces.

Why not deal with this by amending the Equalities Act too? What is the excuse given in the consultation for not doing this? Have I missed it?

IMO they have understood it and the Tories are in this to erode and eventually dismantle discrimination laws.

This provides them with an opportunity to weaken all discrimination laws that are rooted in sex (women, trans, homosexuals) whilst looking ‘socially liberal’ which they hope will get them votes from disillusioned centrists.

They are doing what politicians do and using weasel words so that no-one catches on.

Obviously it is possible they are just not very bright but I never assume that about any government even if the individual politicians may seem to be...

Transwomen benefit from the right to access female only spaces if they have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment. They do not need a GRC to get this protection.

Therefore, the GRA reforms have no impact on the Equality Act or whether transwomen can access female spaces.

Therefore the consultation document is correct. This is not surprising as the government's legal advisers will have helped prepare it.

Therefore, the GRA reforms have no impact on the Equality Act or whether transwomen can access female spaces.

They do. For many reasons, not least because excluding a GRC holder under the EA exemptions is a higher bar.

Transwomen benefit from the right to access female only spaces if they have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment.

That's not really how the Equality Act is supposed to work, though, is it? Transwomen and transmen have the protected characteristic of gender reassignment. They have this if they intend, are undergoing, or have have undergone gender reassignment. This means that they can't be discriminated against for being transgender, not that they have the right to use spaces designed for the opposite sex.

They only have the right to use spaces for their acquired "gender" if they are indistinguishable from a person with that "gender", or if they have a GRC.

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.

Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services.

www.equalityhumanrights.com/sites/default/files/what_equality_law_means_for_your_business.pdf

Of course, people spouting the same misinformation as Sarah have been persuading businesses that they can't exclude anyone who claims to be trans, whether or not they have a GRC.

This is what will change with the proposed changes to the GRA - there is a much higher bar to exclusion of people with a GRC compared to those without.

For many reasons, not least because excluding a GRC holder under the EA exemptions is a higher bar

Today any woman with a GRC had a diagnosis of gender dysphoria, has lived in "role" for two years or longer, has provide a legal panel with details of their medical transition, and where there has not been GRS has provide a good explanation, and has convinced a legal panel that they intend to live as a woman for the rest of their lives. The strict requirements to obtains a GRC sets the higher bar.

There is nothing in statute law or case law to suggest that the legal effect of having a GRC sets a higher bar.

There is nothing in statute law or case law to suggest that the legal effect of having a GRC sets a higher bar.

There is very little in case law full stop. But although neither surgery nor a GRC are required for males to access women's spaces, the feeling from both transactivists and feminist law experts I've spoken is that both would strengthen a case against discrimination.

Why do you think they spell out that it's possible to exclude biological males "even with a GRC" from becoming rape counsellors of females where a single sex service was desired?

@OldCrone

The statutory guidance from EHRC, which courts need to follow unless they have very good reason not to, states:

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.
However, the Act does permit the service provider to provide a different
service or exclude a person from the service who is proposing to undergo, is
undergoing or who has undergone gender reassignment. This will only be
lawful where the exclusion is a proportionate means of achieving a legitimate.

So this is the starting position. Trans people have to be treated in the gender role in which they present in the case of single sex services unless they fit into the exemptions.

The code then goes on to say

^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.

This is then a warning that in this case a trans person is unlikely to fit into an exemption. The "visually and for all practical purposes" comes from case law. It was the standard the courts applied to defacto recognition of the new gender prior to the GRA.

The quotes that @OldCrone come from general guidance (which does not need to be followed by the courts).

The entire section is

Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the physical sex they were born with), as it is unlawful to discriminate against someone because of gender reassignment. Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so.

^A business may have a policy about providing its service to transsexual users, but this
policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.^

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so

^Where someone has a gender recognition certificate they should be treated in their
acquired gender for all purposes and therefore should not be excluded from single sex
services.^

It is clear in this non-statutory guidance that the "visual and practical purposes" test and the GRC are warns about the exemptions in the EA.

So trans people do have the right to use single sex spaces (in effect sue under the EA for discrimination) without a GRC or meeting the "visual and practical purposes" test.

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so

Where someone has a gender recognition certificate they should be treated in their
acquired gender for all purposes and therefore should not be excluded from single sex services

You're contradicting yourself. Those two statements suggest the higher bar of having a GRC.

Your post makes no sense, Sarah. Have some sleep and try again in the morning.

What I am taking from this is that we need to go back to analyse the wording of the legislation itself in detail, specifically the EA. Guidance is too variable and unclear. OldCrone is right, though: there is considerable diffference between normally being treated as female, unless good reason otherwise (non GRC) and necessarily being treated as female for all purposes (GRC).

Ok -in the past I've gone on walking holidays with an all women group. Usually I book a single room but have shared with stranger in the past. It's a small group of about 12. So how would that organisation know if a transwoman is booking in the first place. Would they be able to ask for proof from everyone booking? How do I prove I am not a transwoman if all documents are changed. Could I find myself sharing with a transwoman without my consent. Mind exploding again.

^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.^

But that paragraph uses both terms sex and gender. Does the legislation define them both, or explain the difference?

The quotes from law above refer to transsexuals. Not transgender. And the transgender people and the government seemingly want to eradicate that term as it is not in the consultation.

As a transsexual that's fine with me as I refuse to self ID as being transgender anyway and am happy with my medical diagnosis as transsexual.

At present only those with a GRC (4990 of them, 3000 transsexual women) have obtained a GRC under the criteria of transsexual.

If the Equality Act is not being touched I would argue those are the only people who WILL be covered by those protections and the rest who get the new version - or GRC lite as we might call it - will not on the basis they are doing so via a lower bar of being non medically diagnosed and so just self declared transgender people.

I knew the attempt to kill off transsexuals and medical assessment would end up backfiring on the activists one day.

Maybe it just has without them noticing.

I don't agree that they will get a less effective version of the GRC. I think it will be considered as having the same weight as the current one. I don't want anyone without a diagnosis of gender dysphoria to be legally considered a woman for most purposes. I don't want the protected characteristic of sex diluted by a large influx of biological males who suddenly find it easy to get "female" status.

I totally agree that's how it should be. And you may be right that the assumption is it is just about words.

But I have wondered why the whole GRA and EA is framed around the word transsexual and that word has been eliminated in the consultation. Apart from by those who have been so diagnosed who have seemed to reclaim it recently one by one.

Legally it could be argued that the act refers to transsexuals which is something that involves a specific medical diagnosis. Which existing GRC owners have but future ones will not if it is eliminated. Transgender is not a medical diagnosis but a broad, rather vague spectrum.

A test case at least could be based upon that difference if there is no alteration to the wording and problems ensue after wider access from self ID who have never been assessed.

IMO the erasure of transexual and replacement with transgender is part of the wider movement to replace sex with gender.

I don’t believe you should trust that transsexuals will still be protected after any changes simply because the word is used anymore than women and homosexuals should trust they will be protected simply because the words are used/defined in relation to sex.

These changes are a Trojan horse IMO.

I agree with Ereshkigal 100%
I think we are being lied to.
It's bad for transsexuals and women.
Go back to articles written a few years ago - getting a GRC was written about almost as guaranteeing you be treated as your acquired gender at all times and get access to all the facilities of the opposite sex. Specifically prisons.
Now they're telling me getting a GRC really won't matter?
Something doesn't smell right.

I think the government are in the same position with this as with Brexit - they just haven't a clue what they are doing.

GladAllOver, I agree with that analogy. And they have handled both about as badly as each other with no real plan or direction in mind and reacting only to who shouts loudest as the latest path to follow until someone says the opposite and they think - oh, wait a minute.

And in both major decisions, if we are not careful, we will end up with a fudged mess that will advantage nobody and make things worse than they were before.

Re: the OP

It's a lie, and we must proceed on that basis.

They know what they are doing re both this and Brexit.

Re Brexit they have calculated that it is better to spend years making it look difficult to achieve and positioning the EU as ‘to blame’ for what, IMO, they have known for years was always going to happen; we keep the customs union including free movement etc and we agree on paper to keep social contract and oversight by courts but have no say in the democratic structures and the government then sets about finding creative ways to dismantle social policy etc (if they don’t get kicked out). They will make a big deal about how oppressive the EU is and how hard they have worked but that ultimately ‘if we want to leave we don’t have any option because bad EU who we all know is bad’

Re this they will position it as a marker of how socially liberal they are, nice tories, use it to get centrist votes and then set about using it to as a weapon against discrimination protections.

Pretty convinced of all that TBH.

I can’t stress how dangerous it is to believe those in power just don’t realise what they are doing...

I think we should note that if 'gender' wins, there is no going back. Women will have all the rights on paper, but none in reality. We will be in a worse position than when we had no rights in reality and none on paper. We won't be able to fight to get our rights back because the language we want to use will be illegal. It will be illegal to fight for women's rights. And if we try, we will be told those rights are already in place. Except the 'women' in the legislation won't be us.

Yes pratchet, can no-one see why that would appeal to the tories?