ECHR and GirlGuiding - single sex is fine

[TigerDrankAllTheWaterInTheTap]

Caroline Farrow tweeted this earlier. Not sure if anyone else has posted it, but I thought it merited a bit more attention. She says the European Court of Human Rights has confirmed that it's fine for Girl Guiding to remain a single sex organisation and also that if they do in fact change from single sex to single gender they should change their website.

Does anyone know what the wording was when guides were asked whether to admit boys? They voted on it. right?

No idea. I've seen no mention of consultation with their members or their parents/guardians. Can't remember ever hearing of any consultation with their volunteers either. Surely they must have tried to get legal advice from someone who understood the difference in law between sex and gender identity, and who sought definitive guidance on whether an under 18 could ever be said to have the protected characteristic of gender reassignment.

That's interesting. I just posted this on the other thread:

single sex spaces. Perfectly legal under the equalities act in order to satisfy a proportionate need. Thus, single sex rather than gender showers and changing rooms in a gym club, for e.g., are perfectly legal.

There is an additional danger [of allowing self identified legal men] that is not much discussed. If GGs allow those without a GRC (i.e. legal males) to be guide leaders, another legal male could claim they are being discriminated against by not being permitted to be admitted. The GG would find it difficult to claim it is permitted to exclude some legal males but not other legal males as they have already established that there is no justification in excluding some legal males. This would be likewise for any organisation which seeks to exclude some legal males but to include some legal males. Clearly this is preposterous but we are not short of absurdity in TRA land.

By allowing some legal males to be treated as women, organisations that purport to be women-only are in danger of undermining their justification under the EA for maintaining their space as single sex, as they clearly don't think all legal males need to be excluded.

Very interesting.

Does she mean EHRC or ECHR? (There's quite a difference!) I am pretty sure it must be EHRC (the UK Equalities body, not the European Court)?

The problem is the definition of 'girl' though isn't it?

Some believe that a boy can say the magic words 'I identify as/man, I feel like/ a woman' and shazaaaam, they are a girl.

I think she will mean EHRC

Sorry, I didn't check about the acronym! I'm assuming from the reference to sex that the shazaaam moment is not relevant here.

I have seen somewhere on another thread that it is guidance from the Euro Human Rights Commission so EHRC not the court. Bloody confusing whilst also remembering bastard false pronouns and not being able to type T I M.

It’s the Equality and Human Rights Commission.

From their website:

As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

We use our unique powers to challenge discrimination, promote equality of opportunity and protect human rights. We work with other organisations and individuals to achieve our aims, but are ready to take tough action against those who abuse the rights of others.

I've just had a brainwave.

If the guides go through with "managing out" transboys or non binary females they may very well be discriminating on the basis of gender reassignment.

Gender reassignment is a protected characteristic. I don't believe it requires a GRC just an intention to transition.

This is why the Masons are not expelling trans women who joined as men. It would discriminate against them on the basis of gender reassignment.

The problem with all these laws is that they have never been tested in court. In England no one knows what the law actually is until it has been seen working in the courts. So it comes down to what different lawyers guess a court would say.

We need cases. But they won't be very nice.

dolorsit I think you might be right on that point. It has always seemed doubly unfair that a young girl struggling with their gender identity is kicked out of the very organisation that should be supporting her.

If the guides go through with "managing out" transboys or non binary females they may very well be discriminating on the basis of gender reassignment.

Not just that. Since the Guides now admit some boys, they will be discriminating (on the grounds of sex) if they don't allow all boys to join.

We will have to wait to see details of what the EHRC did say (I imagine that Fair Play For Women, who I think are the actual recipient of whatever it is, are pretty busy right now!). And, I am definitely not a lawyer, please note. But: it seems to me that it would be impossible for the EHRC to state that under 18s are legally opposite sex; in the context of under 18s, where a GRC cannot be held, the sex of the child can only be its sex; it cannot be confused by GRA2004 fudging. So if the EHRC have said that GG could have used the EA2010 single sex exemptions, but that as they chose not to they must clarify that they are now a mixed sex organisation, that must I think mean that EHRC are saying exactly that. "You have chosen not to be single sex; therefore you are now mixed sex. You cannot exclude some boys and not others".

There was a transman yesterday (possibly Fox Fisher?) who posted on Twitter how saddened they were that GG were getting so much flack when they were so supportive when they were going through gender confusion as a teen. Loads of people pointed out that if that had been now, they would have been managed out of the organisation.

It's a complete mess

Their Royal Charter refers to ‘women and girls’. It uses ‘she’ throughout.

So it depends on the definition of ‘women and girls’.

How is the female sex defined (or not) in law?

I think GG can discriminate on both sex and gender reassignment grounds. Much like a LGBT group could discriminate on sexual orientation and gender reassignment grounds.

From EHRC:

As a single-characteristic association for the purposes of schedule 16 of the EA 2010, Girl Guiding UK can choose to refuse membership to trans girls, or choose to admit trans girls as members.

I think (and hope) that what EHRC want GG to clarify in its description, is that in doing this, it cannot claim to be single sex any more. So, even although it is perfectly legal to discriminate on more than one characteristic, it is not legal to claim you are single sex when you admit people who are legally male.

But who knows, we need to see the letter from EHRC.

I am responding to the email to members to ask simply this:

Can you confirm that Girlguiding is now a mixed sex organisation for leaders, helpers and members?

That’s my one question.

To clarify re EHRC

They have pulled GG up on lack of clarity on their website in how membership criteria are being expressed (I know it's confusing, the whole things a wibbly wobbly world of contradiction).

FPFW's original letter to EHRC is pretty much summarised by their original report fairplayforwomen.com/guide-leaders-call-for-halt/

That was checked by three barristers and five safeguarding experts, all concuring with FP's view. However, that's no guarantee that lawyers at the other end will take the same view, the only way you'd get a ruling one way or the other is through the courts.

EHRC then replied, that letter is not yet in the public domain as work is still on going, however EHRC said GG's website was confusing and they needed to change it re membership criteria - to make it clear they admit girls (sex) and some males (gender reassignement, ie transgirls). Transwomen with a GRC have ALWAYS been able to apply as leaders.

Then a parent also wrote to the EHRC - not sure how much of that correspondence is here.

The two letters are different in tone, and emphasis, and from a first glance, possibly interpretation but both now need going over with a fine tooth comb.

And I know, I know, the thread could run for years with all the permutations of what this all means, but until this whole process has run, it's best not to speculate too much about what the EHRC said or didn't say.

You can see what Dr Nic said about the whole GG affair here: twitter.com/fairplaywomen/status/1043739310325936129

There is no case law in this area, we're in the realm of legal opinion, which basically means one lawyer says this, another bats it back with that. EHRC as you know are a public body charged with INTERPRETING equality law, and helping organisations implement it, so they and their legal experts take a view on what they think the courts would be likely to do, or how they would likely perceive a situation, or what they think the EA permits etc, so the EHRC gives an opinion ...

I haven't read this whole thread, so apologies if I've repeated someone else's replies, busy day so this is a bit of a hit and run post, but the bit from the EHRC that Dr Nic tweeted about is GG's website - that it lacks clarity re membership criteria.

FPPW argued that allowing males with gender reassignment into female only groups was discriminatory against other boys who don't have the characteristic of gender reassignment. Barristers FP worked with also agreed. That doesn't mean barristers at the other end also agreed, as we're now in legal opinion territory.

However, there are, if you think about it, some organisations which are two characteristic - ironically LBGT orgs themselves - LBG = sexual orientation and T = gender reassignment.

So the EHRC takes a view or formulates an opinion on what view they feel the courts would be LIKELY to take, and how rigid an interpretation they would be likely to apply to EA.

As I said, there are TWO EHRC replies, the second does confirm GG could CHOOSE to invoke the single sex exemptions, however, the question is (which is the realm we are in) is it legal for them to not do so but limit to only two characteristics?

To be honest, it makes my head hurt! But that's where we are. I'm sure FPFW will update once they've got into the nitty gritty of it all.

Sorry cut and pasted from another thread, just spotted this, Caroline jumped the gun slightly.