Consultation of Equality Act enforcement open : Womens' and Equality Committee

[theOtherPamAyres]

"We've heard that enforcement of the Equality Act isn't working. Today we're launching an inquiry to find out why not and what needs to change. If you have information that can help us answer these questions, you can find out more and submit evidence here:

www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/enforcing-the-equality-act-launch-17-19/

Sounds like the City of London and other councils need to examine their policies of gender identity's primacy.

Hoorah

What is the EHRC doing adding in additional hoops to the Equality Act then? Who wrote or informed that guidance? Who is representing my interests as a female at the EHRC and who do they get legal advice from on this?

I currently have no confidence that the EHRC represents - or has been representing - my interests in the increasingly obvious clash of rights between some trans lobby org demands and female rights.

I can't see any reference to case by case in EHRC guidance, where is that?

2. Croft v Royal Mail

That case was 20 years ago, long before the introduction of the EA and before the GRA. I think this needs properly looking at.

Guidance changes. It isn't the primary legislation which only refers to " proportionate" and "legitimate". I consider women only spaces to be both proportionate and legitimate. It's a subjective test and it could change with public perception.

I consider women only spaces to be both proportionate and legitimate.

Me too. This should be the starting point of the discussion: why do we have single sex spaces? Who are which ones important to and why? How do we ensure they keep that choice while supporting the trans community?

Who are the different males without a gender dysphoria diagnosis who may wish to use female changing rooms, shelters, etc? What reasons would they have? What are the risks to women and girls?

Although Ms Croft lost her appeal, the Court of Appeal adopted a more realistic attitude than the EAT's blanket approach that all pre-operative male to female transsexuals, whatever their circumstances, must be treated as men. The Court of Appeal has left it open, in some circumstances, for pre-operative male to female transsexuals to use female facilities. It will require employers to consider all the circumstances, rather than use the crude distinction of pre- and post-operative.

www.thompsonstradeunion.law/news/lelr/weekly-issue-82-september-2003/pre-operative-protection

I'm guessing you think this is why. Note in some circumstances and the fact that it specifically refers to a known quality, being employed and being in the early stages of physical gender reassignment. Not some random bloke in the loo.

So even if I accept the case by case basis for women's toilets, I don't accept it for women's refuges that are strictly female only, and I think the legislation suggests that it is proportionate to restrict a rape counselling service role to females only, and I see no need that that should be on a case by case basis at all.

And I don't see that Croft v Royal Mail has anything to add there.

This is my understanding of one of the problems with using the single sex exemptions in the EA.

The case law that is often referred to is the Kirklees law centre case concerning a transwoman who had been living in their chosen gender role for over 20 years and had full SRS. I can’t see if they had a GRC but they would have met all the criteria needed to get one. They used the women’s toilets in a pub, a female customer complained, the pub told them to use the men’s, they complained about this and were subsequently barred from the pub. This was found to constitute gender reassignment discrimination.

The problems (as I see them) are:

A) first of all, would this still have been considered discriminatory if they had been asked to use a third, unisex facility, and if they hadn’t been barred from the pub? This is not at all clear and on this part I would contest the case being used as an example of anything aside from not forcing people to use the male toilets and then barring them from pubs.

B) there is presumably a point when it would not be discriminatory to ask a male bodied person not to use the female toilets?

Thinking about B, as this is relevant to the single sex exemptions, we could say that the transwoman in this case was a level 7 or 8.

Level 0: man wearing fancy dress who uses women’s toilet for a laugh and pretends to identify as a woman when challenged.

Level 1: man who has made no changes and has not disclosed intention to transition to anyone until pub asks them not to use women’s toilets.

Level 2: man who has made no changes towards transition but has disclosed to their friend that they want to transition.

Level 3: man who wears dress and has disclosed to their friend that they want to transition.

Level 4: transwoman who has neutral name like ‘Alex’ and is attempting to ‘widen the bandwidth’ by not shaving and still wearing stereotypically male clothes etc but is ‘out’ to friends/ family/ work as trans.

Level 5: transwoman on hormones, wears dresses and who is ‘out’

Level 6: transwoman who has GRC so has lived for over 2 years as a woman etc etc.

Level 7: transwoman who has lived for over 2 years as a woman and has had full SRS but doesn’t have a GRC

Level 8: transwoman who has a GRC and full SRS.

I realise this is a fairly basic and crude way of classifying transition, but my point is, at which point does it become unreasonable to discriminate? And crucially, how do the pub tell the difference between what is going to get them sued for discrimination and what is a proportionate means of achieveing a legitimate aim?

A) first of all, would this still have been considered discriminatory if they had been asked to use a third, unisex facility, and if they hadn’t been barred from the pub? This is not at all clear and on this part I would contest the case being used as an example of anything aside from not forcing people to use the male toilets and then barring them from pubs.

Good question. I thought that too when I was reading your description. This person clearly didn't look female or no one would have complained. Neither was it clearly the done thing for male people to use the ladies in that pub. As you say it's incredibly arbitrary where the line would be drawn.

My focus will be around the definition of "gender re-assignment".

This needs to be updated to exclude transvestites and those whose idea of transition means hormones, epilation and feminisation surgery only.

I'm for Transvestite Exclusion. I'm against a protected characteristic called Gender or Gender Identity. The legal fiction, courtesies and statutory protections ought only to apply to a very small number of people.

The misinterpretation of "gender reassignment" has allowed Trans Extremists to declare that they already occupy single-sex spaces and have a right to do so via the Equality Act.

I would hazard a guess that the abuse of the term has led us to where we are now. I want the government to come up with a better definition.

Agree. I want clear blue water between sex and gender.

Sorry, I think I'm being a bit thick- can any individual respond to this? It's so woolly and mealy-mouthed- "we've heard..."- I can't tell if this is a positive thing for biological women or not. Or has it the potential to weaken the EA sex exceptions even further?

AccioWine Anyone can respond, its likely that they are trying to dilute protection for women.
They didn't support strengthening the Act recently after a dotgov petition called for more support for women in the workplace who had faced discrimination after refusing to wear high heels.

I can't see any reference to case by case in EHRC guidance, where is that?

Still keen to see the reference to this a PP made. Has anyone else seen this or aware where to find it?

Thanks, Upstart. The timing is interesting, coming straight after "we won't be changing the EA", isn't it?

We need to bump that thread about the Equalities Act consultation and the GRA link again. Harrop is leading us up the garden path.

this thread, in other words
Doh

I want clear blue water between sex and gender.

Definitely. Part of the deliberate blurring of the lines is the conflation between:

A) a person having the protected characteristic of gender reassignment as soon as they disclose to a third party that they wish to transition, so that they are protected from being fired, denied housing etc on the basis of their gender reassignment status. I don’t think there is anybody who opposes this whatsoever.

And

B) the same person being allowed instant access to all single sex provision that matches their gender identity as soon as they disclose their intention to transition.

These are two separate issues.

The timing is interesting, coming straight after "we won't be changing the EA", isn't it?

Yes, but it’s incredibly helpful to have that statement to hold the government to, particularly as it mentions safeguarding as a framework for the single sex exemptions.

I agree with Jello.

I am even happy for the definition of gender reassignment to be broadened or changed to include all people who are GNC. I think trans people should be able to be trans and to live their life without discrimination. There is no doubt that gender neutral facilities would ensure that trans people can access facilities that afford privacy and dignity.

I also want sex as a protected characteristic to be more clearly defined so it is clear that natal sex is what it refers to.

Clear water is needed to de-mark the difference between sex and gender and so provision can be made for all.

I want clear blue water between sex and gender.

Yes please. The vision of a beautiful future for all.

There are a vested interests that have too much to lose by the inquiry into the EA.

Lobbyists may not only lose their political influence and an open door to government, but there are threats to funding, training contracts, sponsorship and so on.

If Gender isn't a thing for businesses/councils/schools/service providers to cater for, then the whole Gender industry is in danger of collapsing.

Frightening, isn't it? Not frightening, though.

Wanderabout - sorry, just catching up with this thread. The 'case-by-case' thing is in the statutory code here (page 198):

13.60 - As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often 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. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.

Statutory code is not the law but it holds a lot of legal weight in courts and tribunals - you'd have to be able to show a very good reason for not following it. This is the code for service providers etc. I haven't looked at the one for employers yet.

As you can see this goes a lot further than the EA itself and makes the exceptions virtually unuseable in practice. What's frightening is how much things have been pushed even further in the last couple of years. Nobody bothers balancing needs any more or having discussions with other service users.

Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available

This is where I, perhaps naively, think that it should be more straight forward than it appears to be. Noting differences in sexed bodies, when it comes to changing rooms, prisons and hospital wards, surely cannot be deemed as ignorant or prejudiced? If it did, surely the argument would be against single sex changing rooms, prisons and hospital wards per se?

I thought there has to be a legitimate aim for providing sex segregated services in the first place. I presume that any such aim would need to be based on concrete sex based differences. In which case, what would the subjective experience of a male or female have to do with access to a provision that is based on object physical attributes?

The upshot of 'case-by-case' is that if a women-only service wishes to use this exception and is legally challenged by a tw, the case becomes personal.

The test is no longer whether it's justified and proportionate for women to have female only space in a specific circumstance.

The test is now whether this particular tw is 'woman enough' for female service users to be expected to turn a blind eye to their maleness and accept them personally into what was a female only space.

So you'd end up with a nasty, personal legal battle about how well a particular tw performs femininity.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but case by case overrules your policy so you can never guarantee female only space to your service users.

The closest wording to 'case by case' in the EA itself is in the explanatory notes for schedule 3, part 7, para 26. This is the bit that says it's legal to provide single or separate sex services in some circumstances.

730.A provider can deliver separate services for men and women where providing a combined service would not be as effective. A provider can deliver separate services for men and women in different ways or to a different extent where providing a combined service would not be as effective and it would not be reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex. In each case such provision has to be justified.

...

734. Single sex services are permitted where:

- only people of that sex require it;

- there is joint provision for both sexes but that is not sufficient on its own;

- if the service were provided for men and women jointly, it would not be as effective and it is not reasonably practicable to provide separate services for each sex;

- they are provided in a hospital or other place where users need special attention (or in parts of such an establishment);

- they may be used by more than one person and a woman might object to the presence of a man (or vice versa); or

- they may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex.

735. In each case, the separate provision has to be objectively justified.

Quite obviously 'in each case' means here 'in each context'. It doesn't mean services have to consider letting individual men into women only spaces and services on a case by case basis.