So on what legal grounds does a man/transwoman have the right to enter women-only spaces?

[ThePrincipal]

And on what legal grounds can women change them?

Seems like trans don’t have the right to (legally) but people act as if they do?

Please break it down for me.

Protected doesn’t have to = access to women only spaces surely.

They can demand to be included in men’s spaces...a possible solution and suggestion....

They say it is the nasty terfs that they need protection from after all.

Protected doesn’t have to = access to women only spaces surely.

They can demand to be included in men’s spaces...a possible solution and suggestion....

Yes, this - surely. It is up to men to sort out men's situations and problems.

They say it is the nasty terfs that they need protection from after all.
Therefore they'd be better far off in men's facilities, rather than risk those nasty terfs?!

PencilsInSpace

"You're also protected if you're not trans but are perceived to be trans."

Do all the other protected categories in the Equality Act also work on the basis of applying if you are perceived as qualifying for them? You may not know.

They do Italian, it's in the explanatory notes of the EA.

Protected doesn’t have to = access to women only spaces surely.

No it doesn't. It means you are protected from discrimination (being treated less favourably because of a protected characeristic).

The single sex exceptions make it lawful in certain circumstances to provide separate or single sex services for men and women, and to (in theory) exclude TW from women only services.

Do all the other protected categories in the Equality Act also work on the basis of applying if you are perceived as qualifying for them?

Yes, except for marriage/civil partnership. It's not spelled out in so many words in the EA itself, but the explanatory notes say:

59.Direct discrimination occurs where the reason for a person being treated less favourably than another is a protected characteristic listed in section 4. This definition is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic (for example, is disabled), or because the victim is wrongly thought to have it (for example, a particular religious belief).

60.However, a different approach applies where the reason for the treatment is marriage or civil partnership, in which case only less favourable treatment because of the victim’s status amounts to discrimination. It must be the victim, rather than anybody else, who is married or a civil partner.

No it doesn't. It means you are protected from discrimination (being treated less favourably because of a protected characeristic).

Okay. So on what basis is the male toilet, 'less favourable' than the female? Or a rape refuge that never caters for men, 'less favourable' than one which occasionally does.

And secondly if they are talking about discrimination and being treated differently from someone without that characteristic, wouldn't they be compared to any other man without that characteristic?

Why compare them with women without that characteristic? And couldn't you argue that women with that characteristic, i.e. transmen, use the gents anyway? So they are not being discriminated against, after all.

And secondly if they are talking about discrimination and being treated differently from someone without that characteristic, wouldn't they be compared to any other man without that characteristic?

YY. This is barrister Julian Norman's argument. That the comparator in a gender reassignment discrimination case for a non GRC holding male person would be a male person without the protected characteristic of gender reassignment.

This is where it gets complicated Datun.

There isn't any law, as far as I know, around which toilets people use (although I believe there are H&S laws around the provision of single sex toilets in the workplace and possibly other legislation that affects schools?). Generally this is just a very strong social convention which self-ID is breaking down.

Refuges use an EA exception (Schedule 3 part 7) to offer services to women only, or separately to women and men, where this is a proportionate means of achieving a legitimate aim. Para 28 allows the exclusion of TW from women only services, again where it's a proportionate means of achieving a legitimate aim.

This is where the EHRC statutory code starts adding in extra hoops:

13.57
If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate.

13.58
The intention is to ensure that the transsexual person is treated in a way that best meets their needs. Service providers need to be aware that transsexual people may need access to services relating to their birth sex which are otherwise provided only to people of that sex. For example, a transsexual man may need access to breast screening or gynaecological services. In order to protect the privacy of all users, it is recommended that the service provider should discuss with any transsexual service users the best way to enable them to have access to the service.

13.59
Service providers should be aware that 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.

13.60
As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.

Julian Norman has written about which is the correct comparator to use in discrimination cases. It appears from her analysis that where a TW does not have a GRC, the correct comparator is a man. However if a TW has a GRC and is therefore legally of the female sex, the correct comparator would be a woman. There's almost no case law though so it's not clear how the law should apply in practice, especially if we're not allowed to ask for a GRC anyway.

Aside from discrimination, the EA also makes it illegal to harass someone because of a protected characteristic. No comparator is needed here. Harassment is engaging in unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating the person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

TW could claim it was harassment to make them use male facilities.

Women could claim it was harassment to make us accept male bodied people in what are supposed to be female only facilities.

We need case law!

Ereshkigal

I can't imagine why one would ever compare them to the opposite sex. Surely the only time to do that is over sex discrimination.

ManFriday proved that single sex spaces can be upheld by law, when they identified as men to go into the men-only Hampstead swimming ponds.
The police were called and swiftly removed them for "breaking a bylaw".
Bylaws are created and regulated by local authorities and in this case seemed to protect male-only spaces.

Curiously, the women-only Hampstead swimming ponds are still open to self identified women.

So it is possible to uphold same sex spaces if the organisation or LA actually want to.

WRT loos, it has always been my understanding that choosing male or female loos was a matter of custom and not law. It's not actually illegal for a woman to use the men's and vice versa.

It's not actually illegal for a rape crisis centres or refuges or prisons to exclude all transwomen without a GRC if they actually want to, either, seeing as they legally exclude males. TW with a GRC get more complicated because their exclusion would be crossing into discrimination territory.

Women could claim it was harassment to make us accept male bodied people in what are supposed to be female only facilities.

And we need to start making this argument. Agree we need case law.

Because the GRA says: (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).

So if a TW with a GRC is excluded from female only services they could try to claim that the comparator is a woman without the PC of gender reassignment. This, it would be argued, would be gender reassignment discrimination, not sex discrimination.

However.

GRA also says (3)Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

Meaning that exceptions within the GRA itself, and any other legislation (e.g. the EA) apply.

The only place in the EA where a GRC is mentioned wrt women's services is in the occupational requirements exception. The explanatory notes give the following as an example:

A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.

It could be argued that if a GRC makes no difference in that example it also should make no difference in the single sex services example:

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

But it's all as clear as mud, especially with EHRC's meddling dumped on top, and we need case law.

One thing is certain, NO WAY should we be reforming repurposing the GRA when there is so much uncertainty in how it interacts with the EA.

And we need to start making this argument

Yes definitely. It's not within our power as individuals to demand the single sex exceptions are used - they give rights to organisations. Any of us who are directly affected could claim harassment.

And sexual harassment is covered by sex (NOT GENDER) as a protected characteristic under EA 2010?

Sexual harassment is different though from being harassed or a victim of violence and death because of your sex.

Organisations have a responsibility to all people with protected characteristics. It is my belief, that when it comes to competing needs, most will follow the money. At the moment, I don't think many fear litigation. In third sector organisations they will do what is likely to least damage their funding streams. In commercial businesses, they will be looking to protect their image/ brand.

Sexual harassment is a separate prohibited conduct and does not have to be linked to any of the protected characteristics.

For harassment on the grounds of the PC of sex, we could argue that being made to share facilities with males violates our dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for us.

For sexual harassment there would have to be unwanted sexual conduct involved. It doesn't matter what sex the perpetrator or victim are.

Great thread. Have bookmarked.

At the moment, I don't think many fear litigation. In third sector organisations they will do what is likely to least damage their funding streams. In commercial businesses, they will be looking to protect their image/ brand

At the moment most organisations are under threat of litigation by transwomen who are refused access to a spaces or service provided for women.

A completely male-bodied person known as JY who identifies as a woman, has brought over a dozen cases against women who perform Brazilian waxes on women-only, who have no experience waxing male genitals and so turned the person away. LM famously sued his school for not letting him wear the girl's uniform.
A person in Canada fought for 12 years, nearly bankrupting a women's rape crisis centre, who eventual women the case, when they refused to employ a male identified as a woman. This person was already employed by another rape crisis shelter.
Transwomen are frequently and routinely trying to bankrupt/close down/sue individual women and organisations who recognise sex differences.

We women need to step up and start fighting for our rights to provide and/or use same sex spaces/services.

GNCQ
I don't think the overseas examples reflect what is happening here at the moment, although it could go that way.

I work with lots of schools and they do not fear litigation around this issue. They do have struggles and concerns but litigation is way down the list.
It is relatively easy for schools to make reasonable adjustments to uniforms and facilities in order to cater for all, they just need access to people who haven't drunk the cool aid.