A legal analysis:
'The saga of Girlguiding UK and the Equality Act exemptions'
(extract)
GirlGuiding UK appeared yesterday to confirm that the effect of their new trans inclusive policy is to exclude trans boys, who should be “expected… to move on” from the organisation. Whether trans boys would or would not, in practice, wish to remain Guides is beyond the scope of this blog, which is looking solely at the law here.
GirlGuiding UK holds itself out as a single sex organisation – that is, one which invokes the single sex exemptions permitted under the Equality Act 2010 (EqA). Such exemptions are permissible, as long as exclusion of members of the opposite sex is a proportionate means of achieving a legitimate aim.
This is generally simple, until the effect of the protected characteristic of gender reassignment is also taken into account. GGUK, in common with many other organisations, seem to think that as soon as someone proposes gender reassignment (and thereby gains the protected characteristic of gender reassignment) they should be treated as though they have already acquired the protected characteristic of their preferred sex. In common language, that as soon as a male says they are female, they must be treated as a female, and as soon as a female says they are male, they must be treated as a male.
This is not what the law says. The law says that it is impermissible to discriminate against someone due to a protected characteristic (save for when it is necessary, back to our legitimate aims). Once someone has a Gender Recognition Certificate (GRC) they become a member of their acquired sex “for all purposes” and therefore gain the protected characteristic of their new sex. Prior to getting a GRC, their legal sex remains their original sex. None of this, of course, materially affects how someone moves through the world in terms of their expression and presentation, and nor should it.
There are few cases which deal with this, but support can be found in the comments of HHJ Richardson QC in R (Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin) at §66 – 70, and in MB v SSWP (RP) [2013] UKUT 290 (AAC) at §47. Protected characteristic of membership of a sex is restricted to those who share it by birth or by acquisition of a GRC.
Of course, children at Guides will not have a GRC, because they are too young to acquire one. So the legal sex of children entering or leaving Guides will be their birth sex, although they may also have the protected characteristic of gender reassignment." (continues)
"I have also seen it suggested online that it is somehow illegal for the Guides to allow male children with the protected characteristic of gender reassignment into their group. It is not. They can have whatever admissions process they like, as long as they can justify any arising discrimination, and it is perfectly legal for them to have a single gender, but mixed sex, organisation. If that is the case then they would need to make it clear that they are not in fact a single sex organisation, as this may affect the decisions of some parents to permit their child to join. Those parents may well have protected characteristics of their own in relation to, for example, religion, or have other more personal reasons for wanting their daughter only in single sex spaces, such as themselves or their daughter having experienced male violence. No doubt the Guides have considered this already." (continues)
www.legalfeminist.org.uk/2018/09/27/38/