Trans Women are Women for Equality Act 2010 purposes (Penny Mordaunt MP)

[stephLDS18]

Well the Secretary of State has made her view absolutely clear!

I've said quite a few times that I can't get my head around the argument that trans women (without a GRC) can hold the protected characteristic of sex as a woman.

My reading of the EA 2010 in combination with the GRA 2004 is that without a GRC a trans woman holds the protected characteristic of gender reassignment but would not be classed as a woman with regard to the protected characteristic of sex.

With a GRC, because this makes a trans woman a legal woman I accept that they hold the protected characteristic of sex as a woman.

This isn't my area of law and I am not confident about coming out at GC at work so I haven't discussed this with other lawyers. I'd love to know what the counter argument is and how a lawyer would argue that I am wrong. In order to be a good lawyer I believe in trying to see all the possible viewpoints. But the truth is I can't see how a trans woman can be a woman under the EA unless they have a GRC.

The only other thing I can think of is that a trans woman could claim sex discrimination because they are perceived to be a woman. For example, if they applied for a job with a female name and were not interviewed because the prospective employer believed them to be a woman. But this is a completely different scenario.

I'd rather not say if that's ok.

Of course! Completely understand.

Under the EA, surely for a transitioner without a GRC the comparator ought to be a natal male (in the case of MtF) who is not transitioning ? Wasn’t there a case to that effect recently (something with “Green”?)

@Ofew

You may be looking at the wrong protected characteristic.

The one to look at is "gender reassignment" in conjunction with the government's guidelines on how to interpret gender reassignment.

In one or two of my posts (above) I've quoted the govt's guidance on what 'transgender' means, what reassignment means and the actions that follow. I read it that employers, councils, the police etc must treat trans women as women ..... if they say so.

And that's how transwomen are women for the purposes of the Equality Act.

They do not derive their rights from their sex but from their gender presentation.

Under the EA, surely for a transitioner without a GRC the comparator ought to be a natal male (in the case of MtF) who is not transitioning ? Wasn’t there a case to that effect recently (something with “Green”?)

Yes, I agree when considering gender reassignment discrimination.

I also think the correct comparator for sex discrimination for a MtF transitioner with no GRC is a natal female because they are legally still a man. But if "TWAW" means non-GRC holders are women for the purposes of the protected characteristic of sex (and as per my last post I don't think this is a correct interpretation of the law) the correct comparator is a natal male.

PamAyres yes that is what they think (I think?).

But I still think they are wrong. The guidance seems to me to be inconsistent with the legislation. I don't see anything in the EA, whether in relation to GR or sex, that means that TWAW (unless they have a GRC).

It is a big leap to say, as the EA rightly does, that someone who is reassigning their gender should not be discriminated against, to saying that they should actually be treated as a different sex.

This is the response I mentioned earlier justifying why they wouldn't change the EA to "gender identity" to cover non binary etc:

Discrimination, as defined in the Equality Act 2010, means treating someone less favourably because of a protected characteristic; it is not necessary for the person actually to have that protected characteristic themselves. Wider categories of transgender people, such as cross-dressers, non-binary and gender fluid people are protected if they experience less favourable treatment because of gender reassignment - for example, if they are incorrectly perceived as undergoing gender reassignment when in fact they are not, or incorrectly perceived to be male or female, perhaps because they do not comply with what society normally expects of men or of women.

The Government is working to ensure that everyone is treated fairly and with respect, including those within the wider transgender community. In November 2015 the Government published two pieces of guidance to help employers and service providers to engage with transgender people effectively. The guidance for service providers2, produced in partnership with Gendered Intelligence, sets out guidance and good practice examples to help ensure transgender people are welcomed, included and valued as customers, clients, users or members, and to ensure that they are treated fairly and appropriately. It also aims to help service providers comply with the law. The guidance for employers3, produced in partnership with Inclusive Employers, is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also a useful guide for managers to comply with the law, and for transgender staff themselves.

Government response to Miller Trans Inquiry report.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmentdata/file/535764/GovernmenttResponsetootheWomennandEqualitiessCommitteeReporttonTransgenderrEquality.pdf

@Ofew

For a long time now transgender people have been telling us that they are entitled to access women's spaces, without a GRC. They quote the Equality Act 'gender reassignment' characteristic, not sex.

They never mention sex or pretend that they want to be included in the sex protected characteristic. They focus on 'gender reassignment' all the time (with the ambition to introduce the word 'identity' instead of reassignment).

Their main fear is that women will challenge the existing practices promulgated by the government. (ie no GRC required, use of facilities compatible with their gender, transgender includes cross-dressers etc) This is what they mean why they talk about their 'erasure' - banishment from women's places because a loop-hole is exposed.

The sex thing is a red herring. The damage was done in 2015 when transwomen became women without a GRC, and under the Equality Act by 'gender reassignment'.

Since 2015, this view has been spread throughout the public sector and elsewhere by Stonewall, Gendered Intelligence, Mermaids and the rest.

And this section was in response to the recommendation to get rid of the provision that even GRC holding males could be excluded from women's spaces and roles in some cases:

We agree with the principle of this recommendation, that those who sought and have completed a gender transition - and who have secured a Gender Recognition Certificate - should be afforded the full legal and social status of their acquired gender.

The Government welcomes the good practice highlighted to the Committee, for example, by providers of services to domestic abuse survivors that include transgender women as far as possible. We will continue to encourage service providers to share good practice within their sectors. To support service providers in treating transgender customers appropriately and lawfully we recently published Providing Services for transgender customers: a guide4. This new guidance, produced in partnership with Gendered Intelligence, sets out guidance and good practice examples to help ensure transgender people are welcomed, included and valued as customers, clients, users or members, and to ensure that they are treated fairly and appropriately. The guide explicitly addresses the sensitive issue of separate and single-sex services, making it explicitly clear that the exception can only be used in exceptional circumstances and where there is no less discriminatory way of providing the service. It also notes that it is very unlikely that any exceptions will apply in ordinary ‘high street’ service provision situations. The Equality Advisory and Support Service, funded by the Government Equalities Office, can provide advice in those cases where service users feel they may nonetheless have suffered discrimination.

In addition, recently published guidance, The recruitment and retention of transgender staff – guidance for employers5, produced in conjunction with Inclusive Employers, states clearly that: “very careful consideration should be given before applying a genuine occupational requirement. Such restrictions are rare and, if wrongly applied, unlawful.” The EHRC provides advice for employers on the use of genuine occupational requirements (GORs) in the relevant section of the Employment Statutory Code of Practice6

We understand the concerns being raised by some transgender people about the provisions. The Government is keen to ensure that that law in this area operates fairly and is not abused, therefore we are keen to receive further representations and evidence on the availability and use of the exceptions in the Equality Act 2010 from all affected parties to take into account for future policy discussions.

So as affected parties it seems they will want to receive our representations and evidence?

As Pam says, the 2015 Gendered Intelligence guidelines that they have unquestioningly accepted and promoted are the point where they threw women under the bus.

Ofew you are pretty much where I am thinking on this. It makes no sense at all!