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.

oldcrone yes, this is what I meant about sarahAr not following the argument through. The pool can't arbitrarily exclude women from the women's changing rooms. So although Amber won't have a claim under the Equality Act, she can't be excluded. And to take the point a bit further- even if she has the protected characteristic of gender reassignment, how would a court apply the para 29 exemption tests in a context of legislative intention expressed by permitting self Id?

I don't think this is just technical detail. These points need to be worked through because otherwise tras can confuse the issue. I'm going to try a diagrammatic analysis/flow chart of Amber's position. I suspect all ends of it will have free willy in the ladies changing room.

Amber definitely does have the PC of Gender Reassignment. See for example www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

I am wondering who the comparator is if she is excluded from the women's? A woman without gender reassignment? If she has a GRC then I think that would be right.

However if she didn't have a GRC would the right comparator really be a man without gender reassignment? That seems to make sense to me because she hasn't legally become a woman. If so, no discrimination. Is that right?

oldcrone sorry me again, thanks for sharing the explanatory notes. I am loath to rely on them as I think explanatory notes often say what the government would like to have been achieved- not what has actually been achieved. But of course they are relevant. Thanks.

Theodora

I'm not sure I agree about this

The pool can't arbitrarily exclude women from the women's changing rooms.

Presumably a private company, for example, can do just that. They have no obligation to admit anyone to their service/premises. Of course they might find such arbitrary behaviour is bad for PR, but absent some discrimination or other unlawful element there's no legal obstacle is there?

Hi ofew - interesting thought- in my example, the pool is run by a local authority. So they would be susceptible to an application for judicial review on grounds of unreasonableness (not something within most of our budgets, but I suspect Amber just might be assisted by campaigning organisations). So in this sense, I think yes, even without discrimination there is a legal obstacle for public bodies in the way of excluding all women. There would probably be other routes Amber (or any other excluded woman ) could use in terms of local government legislation - I'm not sure about that as thankfully am not familiar with that area. But I would think she could successfully tie up the local authority in dealing with expensive complaints and legal action - which of course the authority won't want, hence the policy of not arbitrarily excluding women from changing rooms. Presumably the same is true of any other public body.

Where the premises aren't run by a public body, I agree. The sanction would be bad pr and, again, dealing with complaints. In reality these are important sanctions: so in this sense yes, I think there is an obstacle, albeit not a legal one.

What do you think? Does that sound right? (In the case of a public body excluding people arbitrarily, I wondered if there might also be a human rights claim, not based on discrimination, which is interesting but I'm not sure that it is relevant to Amber.)

On comparators- I think Scenario 1 is Amber has a GRC, and the protected characteristic of gender reassignment, and is excluded from the changing room. So she's legally a woman; yes, surely the comparator is a woman without the characteristic. Bingo for Amber.

Scenario 2: as above, but no GRC. So Amber is legally a man with the protected characteristic of gender reassignment. Comparator surely a man without that characteristic? Oh dear, says Amber putting her towel back in its bag.

So the vital point is the self Id and the GRC, isn't it?

I'm still fretting about the protected characteristic of gender assignment though. Putting aside all the notes and guidance etc, is there case law demonstrating Amber has the characteristic?

theodora1972
Thank you so much for this thread. And this amazing statement:

I'm going to try a diagrammatic analysis/flow chart of Amber's position. I suspect all ends of it will have free willy in the ladies changing room.

Nothing to add, but following with interest.

I think oldcrone and ofew are right. The process of getting a GRC in itself acquires you the pc of gender reassignment. Even if you get a GRC by self-IDing under the new rules, your self ID is a process to change attributes of your sex.

Yes, I don't think any judge would be swayed by the argument that someone with a GRC is not considered to have the PC of gender reassignment, even if they haven't had any surgery and they have now given up on wearing heels and lipstick. The clue is kinda in the name of the GRC

On comparators- I think Scenario 1 is Amber has a GRC, and the protected characteristic of gender reassignment, and is excluded from the changing room. So she's legally a woman; yes, surely the comparator is a woman without the characteristic

I am not sure this is correct. Imagine a trans man who has completed gender reassignment (and has the protected characteristic of gender reassignment) but does not have a GRC and decides he will use the women's changing room. The pool exclude him. Would the comparator be a woman without the protected characteristic of gender reassingment?

Scenario 2: as above, but no GRC. So Amber is legally a man with the protected characteristic of gender reassignment. Comparator surely a man without that characteristic

The approach in the Court of Appeal case of Croft v Royal Mail is that the comparator depends on a case by case basis. It could be a man or it could be a woman. The EHRC statutory guidance implies the comparator would be a woman.

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.

That would be the case, but there is another set exceptions that allow you to exclude women from the men's changing room.

I agree, getting a GRC requires 'living as the opposite sex' (whatever the hell gender stereotypes that means) and changing name etc, and the GRC itself grants a new birth cert with the new sex, so gender reassignment is an essential requirement of GRC as well as being the legal goal.

The aim of self ID seems to be to bring the legal status of womanhood to anyone who wants it.

Recognising non-binary as a legal sex status is the ultimate VIP access-all-areas pass, because it does away with the need to visually 'pass' in order to benefit from the PC of gender reassignment; "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".

Legally speaking it must be impossible for any human to be indistinguishable from a person of the oppoite sex for all practical purposes since a doctor would necessarily recognise and treat them according to their biology not their gender.

Hence the idea to widen the GRC criteria and allow non-binary then some people can just do and go and be whatever they want.

If the threshold for inclusion without a GRC is being "visually and for all practical purposes indistinguishable from a non-transsexual person of that gender", but that this does not always apply if there are "strong reasons to the contrary", then it follows a non-passing transwoman, or a transwoman with a penis can be excluded from women's changing rooms/ toilets, for failing to meet this threshold.

so gender reassignment is an essential requirement of GRC as well as being the legal goal

Yes, but, I think the point being questioned is: once someone DOES hold a GRC then they are (arguably) not in situation of "gender reassignment" any more. If a GRC says that "in all respects the person is now of the acquired gender" (have not checked for exact wording) then Amber is no longer a man with the protected characteristic of gender reassignment; can't be, because the law says Amber is a woman.

That is: if Steve is now Amber (who the law says is a woman because of the GRC) then Amber can now only have the protected characteristic of gender reassignment if he is planning to go back to being Steve (and hence "he" is the right pronoun).

I thought that somewhere (in the EA? Hopefully someone experienced will know) it had stated examples of when a transwoman with a gra could theoretically be excluded from female spaces (eg refuges).

And that part of the issue is that organisations aren't using these exemptions?

Acorn yes, that's paragraph 28 of Schedule 3 EA. It allows you to exclude a person with the protected characteristic of gender reassignment from a single sex space if it's a proportionate means of achieving a legitimate aim.

But what is being argued here is whether a person with a GRC has the protected characteristic of gender reassignment.

It's an interesting argument - I think what mostbeautifuldog is saying is that having got a GRC means you've become the other sex, so you are no longer having your gender reassigned. You are a woman now.

But s7 EA defines gender reassignment as "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."

So if you have undergone that process, you are still protected. I think this protects anyone with a GRC. Subject to the exemption in para 28.

Yes, but, I think the point being questioned is: once someone DOES hold a GRC then they are (arguably) not in situation of "gender reassignment" any more.

The code of practice is clear that the protected characteristic of gender reassignment remains even after transitioning is "complete", so I don't think getting a GRC means Amber is no longer protected by virtue of her gender reassignment even if she is also protected under the PC of sex as a woman.

Placemarking to try to get my head around this..

So if you have undergone that process, you are still protected. I think this protects anyone with a GRC … The code of practice is clear that the protected characteristic of gender reassignment remains even after transitioning is "complete", so I don't think getting a GRC means Amber is no longer protected by virtue of her gender reassignment

But if Amber does still have the protected characteristic of gender reassignment this means that the law does not in fact view Amber as a woman "in every way". And a case could be made for single sex exemptions to be applied, in that case.

(I agree that it makes no sense for a GRC holder not to have the protected characteristic of gender reassignment; I'm just looking at the logic, which I think is what Theodora was getting at).

Can I just say that I am really enjoying this thread. I sometimes feel like a bit of a law geek when I wade into threads with my "this is what the law says blah blah" comments. It's nice to come here and discuss the law in depth.

(Still not the foggiest what's right though...)

But if Amber does still have the protected characteristic of gender reassignment this means that the law does not in fact view Amber as a woman "in every way". And a case could be made for single sex exemptions to be applied, in that case.

I think it is more straight forward than that. The EA was passed after the GRA so under the doctrine of implied repeal the exceptions would win over s.9 GRA.

Also the genuine occupational requirement exceptions in the Sex Discrimination Act did not apply to people with a GRC. The exception to the exception was removed when the EA came in. This indicates to me that there needs to be explicit language in the EA for the exceptions not to apply to people with GRCs.

You would need to fit Amber into a very narrow exception. My view is that if she fits, I think her legal gender is not going to make much difference either way.

Great thread.

To think this entire steaming pile of horsemuck could have been avoided if the most brilliant legal minds in the land had thought to:
a. Provide a clear legal definition for the biological class 'female'
b. Deny any legal fiction allowing he who is biologically male from being legally recognised as a member of that class, reflecting biological reality

Each and every time I reacquaint myself with the fact that our laws have enabled the concept 'gender' to be recognised, yet not defined in any way other than the strong internal feeling that one is something which patently is not the case, I genuinely feel disoriented.
How the hell did we create laws that said we must recognise and honour a person's delusion as if it were true?

We did it by failing to define sex properly in the first place.

My consultation response will include a demand that if we are to recognise 'gender', a nefarious concept, then we MUST recognise SEX also. By defining it and asserting clear and unambiguous terms for it.

Enough of this poppycock.

It's time to have a Sex Recognition Act.

How the hell did we create laws that said we must recognise and honour a person's delusion as if it were true?

We also have laws which enshrine religious belief as a protected characteristic (and in schools in England, at least, the requirement for a daily act of collective worship of a broadly Christian nature)

It's time to have a Sex Recognition Act

Excellent idea. I could not agree more.