The EHRC's own guidance is incompatible with the law. How do they get away with it?!?

[candidpeel]

This blog post from a legal expert is useful http://ohrh.law.ox.ac.uk/uk-reform-of-gender-recognition-and-the-commission-for-equality-and-human-rights/

it spells out that the Equality & human Rights Commission's own guidance to allow people to access facilities for their gender identity is inconsistent with the law.

TheEquality Actcontains prohibitions on sex discrimination, and also discrimination against those possessing the protected characteristic of gender re-assignment.

A person can be a transsexual under the Equality Act without a GRC.

The Commission’s guidance states:

“Generally, a business which is providing … single-sex services should treat a transsexual personaccording to the sex in which the transsexual person presents(as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment”

But their response to the GRA consultation states:

“15. Individuals are treated under the sex discrimination provisions of the EA 2010in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discriminationbecause of gender reassignment.”

In other words a male undergoing gender reassignment (aka a transwoman without a GRC) should not be discriminated against but treated like any other male

"The single-sex service provider has no obligation to serve that person. Indeed, to do so would be inconsistent with the single-sex nature of their service."

That our MPs, the EHRC, academics, media and orgs making policy on this do not understand or make clear this basic interpretation of the law is so bloody irresponsible

Trying clicky again ohrh.law.ox.ac.uk/uk-reform-of-gender-recognition-and-the-commission-for-equality-and-human-rights/

No justification is required to exclude trans persons not holding a GRC from single-sex services beyond them not being (as a matter of law) the sex for whom the service is dedicated. But separate justification is required for excluding GRC holders, because their GRC alters their legal sex.

That's how I always understood the Equality Act to work. Someone with the protected characteristic of gender reassignment but no GRC is regarded as the sex on their birth certificate, so it it easier to exclude transwomen without a GRC from female-only spaces.

Extending the availability of GRCs (and birth certificates in their acquired sex) to anyone who wants one, with no gatekeeping, renders the sex-based protections in the EA completely meaningless.

Here you go - we've replaced the lock on the door (safeguarding and single sex spaces) for which you needed the key (female or holder of a GRC) with a digital lock. A lock for which we've left in a default access code so notionally everybody can can access if they fancy. But we're relying on people to only use the code if they feel entitled to use it.

What could possibly go wrong?

Not just we've replaced the lock on the door with an open access code arran, but we (MPs, EHRC, journos etc..) are pretending there was never a lock to begin with. Nothing to see here. Don't worry your pretty little heads... Its just admin....

EHRC are full of shit and make it up as they go along.

Up until few weeks ago (within 2 weeks of the GRA consultation closing) they had this advice in a document on their website:

Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services.

It was removed after women complained (FPFW have full details I think).

EHRC were among the many local authorities and other public orgs that had unlawfully replaced sex with gender in their list of protected characteristics, most of which I think have changed back to sex now, after women complained. Here's EHRC's statement.

As they say in that statement, this is the 'national body charged with protecting and promoting equality and human rights in Britain' which makes all this all the more shocking. Statutory code produced by EHRC is almost but not quite law. If you end up in court in an equality case you need a bloody good reason for not following it.

The EA itself says that the single sex exceptions can be used as a proportionate means of achieving a legitimate aim. That's a fairly high bar. However, EHRC's Statutory Code adds an additional requirement. In order to use this single sex exception, not only does a service provider have to be able to show it's a proportionate means to achieving a legitimate aim, they must also only apply the policy on a case-by-case basis.

The effect of this additional requirement is that if a women-only service wishes to use this exception and is legally challenged by a TW, the case becomes personal.

The test is no longer whether it's justified and proportionate for women to have female only space in a specific circumstance. The test is now whether this particular TW is 'woman enough' for female service users to be expected to turn a blind eye to their maleness and accept them personally into what was a female only space.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but 'case by case' overrules your policy so you can never guarantee female only space to your service users. Little wonder that women's organisations are afraid to use this exception.

There's evidence that the additional requirements in the EHRC Statutory Code were added under pressure from tra organisations.

Solving issues in a case by case process, sounds like a dangerous tactic to me.

If the law is based on precedent, then case by case is a dripfeed process in the wrong direction.
And under the radar too.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but 'case by case' overrules your policy so you can never guarantee female only space to your service users. Little wonder that women's organisations are afraid to use this exception.

This is where I've read it so differently to how it's being interpreted.

I always read 'case by case' to mean case by case for facility - not by person - so the case would be 'can we have female only changing' not 'can this individual access the female only changing' for each and every person who wants to access it.