“Providers may exclude trans people from facilities of the sex they identify with, providing it is a proportionate means of meeting a legitimate aim”.
Proportionate: It must be reasonable - in proportion, and of an appropriate size, extent, amount, or degree
Legitimate: It must be a legal aim i.e. not a spurious or false grievance.
In other words
- those who are managing single sex spaces may refuse access to a trans person, so long as the response is reasonable and based in real facts and circumstances, and lawful. But that is a very high barrier to reach.
A Case Study
Trans woman AB has a Gender Recognition certificate. She is living with her child Ch, and a partner Z. Z owns the house they have all been living in for last year. AB has no personal resources or family to call upon.
After 12 months of repeated smaller incidents, the police have just rescued them AB+Ch from a particularly violent incident at the hands of Z. Turns out Z is a persistent serious abuser of partners and children, which AB did not know when she and Ch moved in with Z.
Police take AB+Ch to a local Women’s refuge, as there is no other emergency accommodation which can take in both a woman and a child.
AB has no personal resources (family or money) to call upon. Let’s assume AB is a kind, sensible helpful person.
Can the managers of the Women’s Refuge refuse to house them?
Yes - If they have no space.
Can they refuse to house them purely because AB is a trans woman?
I believe the ANSWER is NO in almost ALL circumstances.
Explanation
As AB has a Gender Recognition certificate, the Gender Recognition Act 2004 is quite clear. The relevant section in the Gender Recognition Act 2004 is:
Section 9. Subsection (1) 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).
Subsection (2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
In other words, for all lawful purposes, AB is now a woman. Any exclusion because she has a medical history of transsexualism, would be discriminatory according to the provisions of the Equality Act 2010. It could never be a ‘legitimate’ exclusion (we don’t even need to consider the question of proportionality).
What if AB did not have a Gender Recognition certificate?
She could be excluded but ONLY if the exclusion is proportionate and legitimate.
The refuge manager must ascertain whether excluding AB is in proportion (i.e. of an appropriate size, extent, amount, or degree) and lawful.
The refuge manager couldn’t just ‘second guess’ what the residents thought about housing AB. Any conclusion reached must be based in real hard facts.
Clearly to get an answer to this question, the manager should
(a). Introduce AB (maybe informally e.g. have her sit in a waiting area through which people passed) and
(b) Ask the residents the question:
- Would inclusion of this woman, AB, and her child make you feel real and justifiable discomfort or fear?
If a resident(s) answer yes, then the refuge manager should ask;
- What are the reasons for your discomfort or fear?
The manager should then evaluate whether those reasons are real and justifiable.
Only if they are, could the manager CONSIDER refusing AB+Ch a place in the refuge, but the reasons would have to be BOTH proportionate and lawful.
So the final evaluation might be:
Excluding AB+Ch might cause them some discomfort (e.g. a night in a police cell to protect them),
but against that: inclusion would seriously impact the mental health and wellbeing of resident(s) XXX
Then exclusion of AB+Ch could be proportionate. But it would also have to be legitimate.
e.g. AB+Ch will not come to harm, but resident(s) XXXX may experience serious but short-term distress,
i.e. Legitimacy comes from the wanting to cause the lesser of two evils.
But, what if excluding AB+Ch meant they would either have to return home and face a very violent man again, who has threatened to kill them, or alternatively spend the night on the freezing streets.
e. g. AB+Ch is highly likely to come to harm, but the resident(s) XXXX might experience serious but short-term distress;
In this case, the line is very fine – but I would think that excluding Ab+Ch is probably not legitimate, but that would be for a court to decide based on the balance of probabilities,
NOW - What if the reasons really are given are unreasonable and unjustifiable – and in fact any potential claim of distress really amounts to prejudicial attitudes.
That would call into question the legitimacy of any exclusion of AB+Ch,
The manager should then over-ride that/those resident(s) who makes the objection.
The manager should consider counsel the resident(s) explaining the provisions of the Equality Act 2010 to them. If the residents still strongly object, then consideration should be given to whether it would be best to exclude them, rather than AC+Ch, as it would be difficult to claim that prejudice was the basis of a legitimate action.
Conclusion
What Ministers are doing is using fudge words (as indeed they are used in the directive and in the Equality Act 2010), because no one really wants to say ‘No’ to either side.