Legal question about consultation

[theodora1972]

Hi, I'm trying to fill out the GRA consultation. I've looked at the fair play for women guidance, and at the GRA and EA. Despite over 20 years in law I'm struggling with this impenetrable legislation. So, here is a question for anyone familiar with the legislation.

Let's say Amber was born Steve, a man. Also, let's say self Id has triumphed. Amber does not have surgery or take hormones. But she lives as a woman, in that she calls herself Amber and sometimes wears skirts heels and make up. And she has a GRC. She goes to her local swimming pool, which astonishingly is run by feminists. Poor Amber is told to take her willy out of the ladies changing room. So, how does the law apply?

My reading of the EA and GRA is that paras 26 and 27 of schedule 3 to the EA have no role here. None at all. This is because Amber is female for their purposes, by virtue of section 9 of the GRA. But nor does para 28, because Amber does not come within section 7 of the EA - remember, no surgery, no hormones, all she's done is put on a skirt and some lippy (contrast the wording of section 7- 'a process for the purpose of reassigning sex by changing physiological or other attributes of sex'). So, the pool has no defence whatsoever. They can't rely on the 'proportionate means of achieving a legitimate aim' defence in the Schedule 3 exceptions because it is irrelevant. This is simply a case, for the purposes of the law, where a female (Amber) has been excluded from female facilities.

Is this right? If so I think this is an even worse outcome for women than that suggested by FPFW in their commentary on the consultation.

But, is there case law that would bring Amber within section 7? Is there anything to suggest this is the case?

Apologies if this is obvious.

My interpretation is that self-ID (everyone is free to choose their legal sex, by simply making a statutory declaration) would mean that the protected characteristic of sex in the Equality Act would be meaningless.

If any man could self-identify as female and acquire a female birth certificate, there would be no way (in legal terms) to distinguish between someone born female and someone born male who had changed his birth certificate.

I have no legal training whatsoever, though, so I don't know if my interpretation is correct - although I posted something similar a while back, and someone with legal expertise said they though I was right.

OldCrone

That's my interpretation, which makes all the claims that the 'protections remain in place' nonsense and meaningless.

If self-id comes in, ANY man can get into women's spaces - including people like the man on another thread who just got 22 years for appalling abuse of a child.

We all know the lengths predators and sex offenders are willing to go to to get at their victims - this will be a feckin' walk in the park for them.

Link to Julian Norman's article
manfridayuk.org/2018/08/22/is-everyone-really-wrong/

Theodora

I like you have a lot of legal experience yet find the law very difficult to get my head around. I hate the way both the EA and the GRA conflate sex and gender - I am surprised this got past parliamentary counsel. And I also find the codes of practice really problematic, I think they go much farther than the legislation and are downright inconsistent with it.

It's not really my area of law so I'm not completely up on the case law. However my understanding is that s. 7 EA is to be construed broadly so that your hypothetical Amber would probably hold the protected characteristic of gender reassignment (i think this is from the Code of Practice). The steps taken to "reassign" don't have to be medical in any way.

So with regards to s.7 there is already a high degree of self identification. Amber can say "I have (or even "I propose to") reassign my gender therefore I am protected under s. 7".

However Amber cannot claim she is a woman for the purposes of claiming the protected characteristic of sex. For that PC she is still a man.

To do that she must have a GRC (issued under the GRA 2004), which for all purposes makes her legally a woman.

Therefore if there is self ID, men will be able to identify themselves not just into the PC of gender reassignment but also into the PC of sex.

Sorry I forgot you had said amber has a GRC.

Doesn't the fact of having a GRC bring you within the definition of s7, even if you have taken no other steps to 'transition'?

Amber has two protected characteristics - sex and gender reassignment. She's a woman, but she's being excluded on the basis of being a woman with the protected characteristic of gender reassignment. The pool can rely of para 28 of Schedule 3, if they can show it's a proportionate means of achieving a legitimate aim - trans activists rely on this to show that there are safeguards to self ID.

But whether it is practical for every service provider to make a call every time someone with a male appearance accesses a woman's service as to whether than person is a man, or a transgender woman, is the real problem.

I'm a lawyer, btw, although I don't specialise in equality law.

But whether it is practical for every service provider to make a call every time someone with a male appearance accesses a woman's service as to whether than person is a man, or a transgender woman, is the real problem.

I agree. The code of practice is clear that the exemptions should be applied only on a case by case basis. There appears to be no scope to say "this refuge (or whatever) is for natal women only" - rather a decision has to be made every time a transwoman seeks to use the refuge.

On the one hand I can see the merit in that - equality and human rights law is founded on the principle of proportionality and I can see how blanket bans might be disproportionate. On the other hand it does seem onerous on service providers to make this judgment. And there might be legitimate reasons to exclude all male-bodied people (e.g. due to fears of vulnerable women).

That's really interesting. ofew, I think we should remember that Codes of Practice are of doubtful standing, though tras try to rely on them, because they are more accessible.

I'm really struggling with this section 7 point. The EA does distinguish (albeit in a lame way) between sex and gender (a court's starting point will be that different terms are intended in the absence of contrary evidence to have different meanings) and section 7 refers to reassignment of sex and attributes of sex. So I am really doubtful that Amber is within it. (Happy to be corrected.) But from our point of view this is a bad thing because the exemptions in Sched 3 are not in play. There is no possible justification for excluding her.

What this brings home is how insane it is to propose amending the GRA in isolation. The consultation doesn't bring out these issues- why not? Because they haven't thought about them. No thought given to the existing practical and legislative landscape, and how this enormous change will fit with them.

You're right, it is more complicated than I thought.

s9(1) of the GRA states in relation to the consequences of being issued a GRC, that:

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).

I agree that the EA confuses/conflates sex and gender, but it's clear that the effect of having a GRC is that your sex becomes that of the gender that you have acquired.

So for the purpose of s7 EA you have undergone a process of reassigning your sex. The difficulty is your point about reassigning physiological or 'other attributes' of your sex. I think that's arguable. But wouldn't the counter argument be that changing your legal sex is changing an 'attribute' of your sex. The question is whether your legal status as a woman is an attribute of being a woman, or just a description of being a woman.

I don't think anyone has thought about this in regard to self-ID. It's clear that the EA envisages some steps being taken towards changing something about yourself. Presumably the GRC process at the moment also requires you to change something. So anyone who has one now probably meets EA description. Not necessarily true post-self ID, unless you can make out the argument about legal status being an attribute.

For clarity, I should have included the relevant bit of the EA.

(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

I think I misunderstood your question, theodora. If Amber has no intention of changing their body using surgery or hormones, then they are not 'proposing to undergo ...a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological ... attributes of sex.'

But what are 'other attributes of sex'? If this includes wearing lippy and high heels, then Amber does have the protected characteristic of gender reassignment.

As I understand it, 'living as a woman' (whatever that means) is all that is required for a man to claim the PC of gender reassignment. If someone has a GRC, under self-ID they would have to declare that they intended to 'live as' the opposite sex for the rest of their lives, so they must also have the PC of gender reassignment.

www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

According to the code of practice she does benefit from section 7 - see p.33 on the attached.

This section of the EHRC guidance also creates huge problems for relying on the exemptions in para 28.

^2.27
Transsexual people should not be routinely asked to produce their Gender Recognition Certificate as evidence of their legal gender. Such a request would compromise a transsexual person’s right to privacy. If a service provider requires proof of a person’s legal gender, then their (new) birth certificate should be sufficient confirmation.^

A person enters the women's changing room in a swimming pool during a female only swimming session attended by muslim women.You're not sure that they're a woman - you think they are a transwoman. You know that you can exclude a transwoman from the session if it's a proportionate means of achieving a legitimate aim. You decide to ask for proof of their sex, and they show you their birth certificate, which says female. What do you do? Ask to see a GRC too? Or just give up and let them swim?

That should have said "you're NOT sure they're a woman"!

This is actually straightforward.

If Amber does not have the protected characteristic of gender reassignment and is legally female, the swimming pool can just exclude her as she is unable to bring a discrimination claim. She cannot bring a sex discrimination claim as she is being treated no differently from the guys. And she cannot bring a gender reassignment claim. Tough on Amber but there you are.

If she does come under s.7 EA, then the exceptions apply and this seems to be just the type of situation where it would be legitimate and proportionate to exclude her.

Nonetheless if she is allowed to use the women's changing room, she would be well advised to keep her penis hidden. The offence of exposure under the Sexual Offences Act is drafted in gender neutral terms.

A person enters the women's changing room in a swimming pool during a female only swimming session attended by muslim women.You're sure that they're a woman - you think they are a transwoman.

Well you could just exclude her.

If they are a natal woman, they won't be able to bring a claim for discrimination. Tough on her, but at least your muslim women can swim in peace.

If she is trans, you could seek to rely on the exceptions, but you might struggle. See EHRC guidance for why this might be difficult.

One final point, the muslim women might be from Iran. In Iran trans women are viewed as women.

How is Amber "being treated no differently from the guys" and can therefore not bring a sex discrimination claim if she is legally female? Respectfully, this does not make sense.

How is Amber "being treated no differently from the guys" and can therefore not bring a sex discrimination claim if she is legally female? Respectfully, this does not make sense

For a woman to bring a claim of sex discrimination you need a comparator - a man who is treated better than her. For example for an equal pay claim, a woman would need to find a man on the same grade/experience who is paid more. [This is a simplification]

The gym presumably excludes men from the women's changing room. So if Amber is excluded from the women's changing room she is being treated no differently from the men and hence she does not have a claim for discrimination based on her legal sex being female.

sarahAr I think your analysis, although expressed differently, is the same as mine; but that you are not following this through to see how disastrous this is for every woman who does not want Amber's parts in the changing room.

If Amber has a GRC but not the protected characteristic of gender reassignment, she is as you say unable to bring a discrimination claim if excluded; but the pool has no grounds to exclude her, because for all legal purposes she is a woman, just like me. The legitimate aim exemption is thus completely irrelevant. If excluded, Amber can complain, in exactly the same way that I can (and would) complain if my local pool arbitrarily refused to let me in. She's a woman: what ground for exclusion is there? So, if excluded, Amber can make life very difficult for whoever runs the pool. No pool will want to deal with this. So the pool will let the Ambers of this world in. This means admitting transwomen will be the pool policy, even if the individuals in question are in all appearances men, with full beards and wearing trousers.

If however Amber does have the protected characteristic of gender reassignment, she can bring a claim. And as you point out this can be defended by the pool. But it will be defended on a case by case basis, Amber by Amber. No pool will want to do this. Local authorities are cash strapped. They can't afford this. So the policy will be to let the Ambers in.

Either way, if your analysis is correct, the women who don't want Amber in the changing room are fucked.

As for the indecent exposure point- the public interest test, in deciding on prosecution, will be affected by self id, if it goes ahead. This is because the legislature will have sent out a strong message, and the public interest test will be interpreted in light of that. A prosecution of Amber for showing her penis is unlikely and should not be relied on.

If your analysis is correct, self id looks very frightening.

So if Amber is excluded from the women's changing room she is being treated no differently from the men and hence she does not have a claim for discrimination based on her legal sex being female.

If you use that logic you could exclude all women from the women's changing room, but you would not be able to exclude women from the men's changing room.

And presumably you would be able to exclude all men from the men's changing room but not from the women's.

Is that really what you're trying to say, SarahAr?

woulddolly goodness that is an interesting point: the argument that the GRC itself brings you within section 7, i.e. that the effect of section 9 GRA, the legal fiction, is a reassignment for section 7 purposes. I am going to go back and look at the provisions, but have to admit I am doubtful. Interesting question of statutory interpretation! (And I imagine Amber, if sensibly advised, would want to argue this is certainly not the effect of section 7, as it brings para 29 of Sched 3 to the EA into play!) Honestly, what a legislative snarl up.

If Amber has a GRC but not the protected characteristic of gender reassignment

I don't see how this can be possible. Under the present rules, someone has to have a diagnosis of gender dysphoria and 'live as' their preferred sex for a period of two years before gaining a GRC. The living as the preferred sex requirement means that they have the protected characteristic of gender reassignment, doesn't it?

Under self-id they would have to sign a declaration that they intend to 'live as' their preferred sex for the rest of their life. Again, this would give them the pc of gender reassignment.

I can't see how anyone can be living as a member of the opposite sex, but not have the pc of gender reassignment.

From the EA2010 www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/1/4/3

A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act.

Presumably the same would apply to a male who wants to 'live as a woman', whether they 'pass' or not.