Equality Commission on Sex

[Snappity]

I have had an email today from the Equality and Human Rights Commission which will please nobody. Their understanding of sex in the Equality Act 2010 is that it means sex on a person's birth certificate, either issued at birth or under the Gender Recognition Act.

That's narrower than trans people would want (and I still think they haven't properly reflected the latest MB judgment in the ECJ) but it also confirms that it is not the biological definition gender critical feminists want so excluding someone with a GRC will be extremely difficult.

They say that they are in the process of formulating new definitions of sex, gender and gender reassignment.

Or would a safe house for women be able to send you away as long as it was a proportionate

I think this is the case.

So can someone confirm: if you have a GRC your sex is counted as the acquired one and, legally, you connot be refused admission to sex-segregated spaces eg a safe house for women?

Or would a safe house for women be able to send you away as long as it was a proportionate...whatever

The intention behind the exemption in the legislation was that in most circumstances a transwoman with a GRC is to be treated as female, but there are situations where it can be proportionate to exclude them even with a GRC, but the onus is on the service provider to demonstrate that proportionality

However, in practice we have slipped from "transwomen with a GRC can access female only spaces" (the India Willoughbys of the world, I believe) to "transwomen who have had surgery can access female only spaces" (the Paris Lees of the world) to "anyone who says that they are a woman can access female only spaces (the Lily Madigans of the world). And even to "anyone who says they are a woman can access female only spaces, even if they are female today and male tomorrow" (the Travis Alabanzas of the world)

Practice is out of step with legislation

This ended up being long. Sorry.

You are aware that case law doesn't change statute I am assuming?

It merely adds a layer of interpretation under the circumstances of that particular case. Not to all cases I hasten to add. Only ones that might share similarities.

At present the GRA says that if you hold a GRC you are entitled to access the services of the gender on that GRC. It doesn't change your sex. It changes your gender. Hence the EA exclusions still apply. Which is why it's so grey at present.

The general public don't support trans issues overall. The political landscape is not currently conducive to significant legislative moves against public opinion. Particularly given a general election is very likely within the next 12 months. And given we have a very weak government being propped up by the DUP.

This will get kicked into the long grass and reviewed again at some point. Seen it happen a million times with other potentially controversial legislation. The government isn't going to want to be fighting simultaneous multiple controversial issues at the same time. Not when one happens to be brexit. It's too divisive. Adding another divisive issue to the legislative agenda is not happening.

If changes are made they are likely to be along the lines of other similar legal protections for beliefs I.e. for religious beliefs. The right to believe them but not for those beliefs to override anything else. So pretty much what is in place now. It will be left to the courts to arbitrate the details. That will take years.

Don't forget that as soon as this starts to progress all the other minority groups such as the disabled who potentially stand to be the ones to lose some access to their toilets etc will start to shout. As well as those who want single sex only facilities for religious reasons. And they will shout loudly.

The equalities commission are likely to be awaiting the government's decisions on what happens after the consultation closes in October.

Whether they are right or wrong that must be the case in that the proposed changes to the Gender Recognition Act are intended to increase the number of GRCs issued and someone with a GRC manifestly has more legal rights than someone without one.

I agree that the intention must surely be to grant more GRCs (because the narrative is that there are lots of people out there who would apply but the process is too cumbersome so they don't)

I also agree that a GRC brings legal rights and protections - most of the conversations on here are around where the rights of a GRC holder butt up against the rights of a woman (or, to a much lesser degree, a man). It's also why I would love to see the legal advice obtained by the Labour Party regarding AWS, given that the legislation is explicit that there is a distinction between a) women and transwomen with a GRC; and b) transwomen without a GRC and men

At present the GRA says that if you hold a GRC you are entitled to access the services of the gender on that GRC. It doesn't change your sex. It changes your gender. Hence the EA exclusions still apply. Which is why it's so grey at present.

You are wrong. S9(1) of the Gender Recognition Act with emphasis added

"Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)."

...for legal purposes. People cannot actually change their sex.
Forcing women to continually use qualifiers such as 'biological sex' is not helping the case of trans campaigners.

That bargaining isn't going so well, eh?

However, in practice we have slipped from "transwomen with a GRC can access female only spaces" (the India Willoughbys of the world, I believe) to "transwomen who have had surgery can access female only spaces" (the Paris Lees of the world) to "anyone who says that they are a woman can access female only spaces (the Lily Madigans of the world). And even to "anyone who says they are a woman can access female only spaces, even if they are female today and male tomorrow" (the Travis Alabanzas of the world)

I agree with this, but has IW a GRC and has PL had any surgery?

...someone with a GRC manifestly has more legal rights than someone without one.

More legal rights? Nice skirting around that issue...

You know full well that they are granted pre-existing sex based rights....

This is the whole point because it makes every person in the country into an interested group who should be consulted on any changes...

It is not sustainable therefore to continue pretending that transgender people are the only interested group.

Also, I vehemently disagree with all the ‘living in the role’ requirements for granting of legal rights to transpeople. This is, IMO, sexist and transphobic because it reinforces oppressive gender stereotypes and is a way of forcing non-conforming people to conform in order to access rights.

It is a requirement that only exists because of the conflation of sex with gender.

This will get kicked into the long grass and reviewed again at some point. Seen it happen a million times with other potentially controversial legislation. The government isn't going to want to be fighting simultaneous multiple controversial issues at the same time. Not when one happens to be brexit. It's too divisive. Adding another divisive issue to the legislative agenda is not happening.

I think long grass is the likely outcome too.

I think the political narrative is that the Government knows that trans people have a lot of legitimate grievances and promised trans people that they would do something. The (mis)calculation was that the Gender Recognition Act was an uncontroversial change which could be thrown as a sop to indicate activity while not upsetting any apple carts.

I think Self-ID will go through in Scotland but not England and Wales. My guess is that instead we will get something on conversion therapy.

It does not represent progress re acceptance, it basically says ‘OK if you prove to us you are really committed to the gender caste system by adopting the gender role attached to the opposite sex then we’ll grant you rights’

You realise the whole point in self id is the you don't have to conform to the gender. You can have a beard and wear mens clothes but say 'I am a woman on the inside' and you are one. It's a self declaration it has nothing to do with how you look, present or live your life.

Erm, no. The consultation doesn't suggest that at all (as I read it).

That's kind of what I said about the sex/gender thing but I take your point. I wasn't trying to start anything about definitions!

It was the broad overview I was trying to say really, just that was why the EA still applied and it was grey.

I agree re the conversion therapy comment. Plus the rules for inter sex people should be sorted out too.

I agree too that it probably appeared to be a simple way of dealing with a very complex issue.

Erm, no. The consultation doesn't suggest that at all (as I read it)

Erm yes... There is no requirement to send in photos of one wearing a dress, or a stash of receipts from Coast showing that one has started wearing typically female attire...

Baroque - I think that IW has a GRC (has definitely had bottom and top surgery). PL definitely doesn't have a GRC - they have said repeatedly that they don't see the point in them. I think PL has had bottom surgery, but has definitely had facial surgery but claims that the boobs are solely as a result of hormone therapy

I could personally seriously consider option 1 if it was full SRS surgery + 1 year or option 2 gender dysphoria diagnosis but not option 3. I know others have different views after all that has happened though.

Long grass won't work with sex exemptions. Govt needs to do something about clarifying sex vs gender with ridiculous stuff like non binary male bodied people demanding access to teenage girls changing rooms, plus guides and other youth orgs frankly irresponsible hidden mixed sex guidelines.

I don't see the govt doing something on gender Id conversion therapy in a hurry for various reasons. Anything that supports trans rights without impacting others rights and safety I'm very supportive of. I've found I've become very suspicious of anything proposed now because of the silencing, threats, denial etc from some.

Erm, no. The consultation doesn't suggest that at all (as I read it).

But the proposal allows it and gives no gatekeeping at all to stop it (unlike your suggestions at least two of which do).

Would you please tell me what constitutes "evidence" and who checks it in your option 3 Snappity?

Long grass won't work with sex exemptions. Govt needs to do something about clarifying sex vs gender with ridiculous stuff like non binary male bodied people demanding access to teenage girls changing rooms, plus guides and other youth orgs frankly irresponsible hidden mixed sex guidelines.

I don't think so because it would inevitably lead to recognising the need for individual cubicles for changing etc which would have major cost implications for the Department of Education, Department of Health and probably prisons. I think in legislative terms we have probably reached stasis. That's not particularly a desirable outcome but any Government is going to be very reluctant to do something which might have a big impact on public spending.

*Long grass won't work with sex exemptions. Govt needs to do something about clarifying sex vs gender with ridiculous stuff like non binary male bodied people demanding access to teenage girls changing rooms, plus guides and other youth orgs frankly irresponsible hidden mixed sex guidelines

The thing is this is the most controversial element. So they have a few options to address this and none of which are necessarily appealing.

1. Make it up to the place (ie swimming pool , refuge, clothes shop) to decide if an exclusion is proportionate. Anyone wishing to challenge what that place decided has to go to court to arbitrate and it would be for the court to decide if the exclusion was lawful under the new act

1. Be definitive and exclude certain groups despite self id

1. Leave it as is under the EA. Which is very similar to number 1.

All three above are based on the assumption that self id is included in any change to the GRA.

If self id isn't included number 3 stays in place as is, basically.

Agree re the cost issues in snappitys post.

Would you please tell me what constitutes "evidence" and who checks it in your option 3 Snappity?

As now - the Gender Recognition Panel is my suggestion and they tend to be very demanding. So something like a driving licence wouldn't be enough, they would probably want to see payslips or benefit letters in the new gender.

But the proposal allows it and gives no gatekeeping at all to stop it (unlike your suggestions at least two of which do).

The proposal in the consultation suggests both a statutory declaration and a waiting period. They suggest 6 months - I think that is too short.

As a woman I really do share the same reservations as everyone else but, through my partner, I have spent a lot of time with trans people and believe that the balance is presently wrong and that a) there ought to more emphasis on surgery rather than a diagnosis of gender dysphoria and b) for those people where the medical route is inappropriate or cannot be evidenced, there should be a (slow) backstop of Self-ID

Their understanding of sex in the Equality Act 2010 is that it means sex on a person's birth certificate, either issued at birth or under the Gender Recognition Act.

Yes, that's the law. s.212(1) EA defines a woman as a female of any age; s.9(1) GRA defines a male-born person with a GRC as a female.

I'm slightly surprised that this is news to anybody.

there ought to more emphasis on surgery rather than a diagnosis of gender dysphoria

I see what you're saying but I think this would be illegal.