Times removes inaccurate story about trans women's right to use female toilets

[valleysval]

Good to see the Times pulling an inaccurate story claiming that trans women were not allowed to use female toilets when, as we all know, that right is already protected by the Equality Act.

The Independent Press Standards Organisation ruling said:
“The article’s headline and standfirst had stated that the city’s toilets were not currently open to trans people. The publication had accepted that it had no basis for this claim; there had been a failure to take care over the accuracy of this information…”

www.pressgazette.co.uk/sunday-times-pulls-trans-toilets-article-after-accuracy-complaint/

Having the protected characteristic of gender reassignment, however, is not in any way contingent on a GRC.

I do agree here though. But a GRC may give you more rights in practice because the bar will be higher to exclude a legal female from a female single sex space.

Which is why self ID is not just "tidying up a bit of admin".

The comparator in a discrimination claim for a male with GRC would be a woman, not a man. You would have to therefore have a strong basis for demonstrating a proportionate means (exclusion of legally female male person) of achieving a legitimate aim (single sex space where particularly needed)

(exclusion of legally female male person)

There is a man, and there is a woman..what does ^ mean?

A male female? Or female male?

Only gender is changed, not sex. The role,not the biology

"No GRC changes a person's sex in law. "

Irrelevant distinction. For legal purposes they are 100% interchangeable. This is defined in the GRA s9

www.legislation.gov.uk/ukpga/2004/7/section/9

www.transgendertrend.com/uk-transgender-rights-legislation/

"Note: the words ‘gender’ and ‘sex’ are used interchangeably throughout government legislation documents,"

"This is inaccurate, since Section 7 is very specific that it refers to "transsexuals" when referring to the protected characteristic of 'gender reassignment'"

No.

It says 'A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.'

In other words, a 'transsexual person' is someone who has 'the protected characteristic of gender reassignment'

Not the opposite way round!

That characteristic is clearly defined as "a person [who] is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

I.e. it is anyone. A 'transsexual person' or a 'protected person' or a 'transgender person' in the Equality Act, is anyone at all who claims to be transgender.

You are erecting distinctions which simply do not exist.

I appreciate reading all the various opinions on this, and thank you to all who are taking the time and effort to try to explain various interpretations.

But.

This is supposed to be law. Law should be clear. But this business is as unclear as unclear could ever be.

I find myself agreeing, to a greater or lesser degree, with most opinions given here, regarding the legal logic of when is a man a woman to all intents and purposes in UK law, and when he can be rightfully and legally excluded.

But it is a mess, isn't it?

And until the matter is clarified in law, it will remain a mess.

I just want women and girls to have spaces protected for born women and girls only. I hate the fact that I have to use the phrase "born women and girls". "Women and girls" should need no adjective.

I agree, Bubonic. It is confusing and at times inconsistent and unworkable. For instance, the "legal gender being treated as sex for all purposes" is not quite true, because there are possible exemptions provided for in both the GRA (e.g. Primogeniture, religious belief) and the EA (single sex services and spaces, occupational requirements)

"The comparator in a discrimination claim for a male with GRC would be a woman, not a man. You would have to therefore have a strong basis for demonstrating a proportionate means (exclusion of legally female male person) of achieving a legitimate aim (single sex space where particularly needed)"

I honestly don't think it makes a difference.

Some scenarios:

a transman with a GRC is rejected for employment in a nursery on the grounds of 'we don't employ men' - the transman would have a claim for sex discrimation, because their sex is 'male' and the other staff are 'female'

a transman without a GRC is rejected similarly - no case of sex discrimination, because their sex is legally female, however you could claim for 'gender reassignment' discrimination on the basis that a person of the female sex who did not identify as transgender would not have this issue

a transwoman with a GRC is rejected to work with female rape victims - no case for sex discrimination because TW w/GRC's sex is female, but has case for gender reassignment discrimination, which could likely be defended against

a transwoman without a GRC is rejected similarly - could claim for both sex discrimination as (male) AND gender reassignment discrimination, both claims could be defended against.

Note that there is no longer a Sex Discrimination Act, it's under the same Equality Act 2010

In terms of the differences between sex discrimination and gender reassignment discrimination:

1. you can provide single sex services IF

(a) only persons of that sex have need of the service.
(b) you also provide mixed sex services, but offering single sex services as well is 'more effective'
(c) a joint service would be 'less effective', and your service is disproportionately required by one sex
(d) at hospital/care facility/similar
(e) you provide services to two or more people at once, and one of those people might 'reasonably object' to a person of the opposite sex
(f) the service involves physical contact, and the service provider might 'reasonably object' to providing it to a member of the opposite sex

AND this is a 'proportionate means of achieving a legitimate aim'

Whereas gender reassignment discrimination is allowed in:

(a) providing separate sex services

(b)providing different services to each sex

(c)providing single-sex services

where this is a 'proportionate means of achieving a legitimate aim.'

It would seem that given that you must show that a single/separate sex service is of itself 'more effective', as in a hospital ward, then there isn't really an obvious difference between a 'man' and a 'transwoman' given that the 'transwoman' may appear to other service users to be a 'man', although perhaps this varies from case to case.

Otherwise in terms of the hypothetical TW with GRC, if they are excluded from a female service, that exclusion would therefore be on the grounds of 'gender reassignment', which does not reference a GRC, or the person's sex - it purely stands on the fact that the person is transgender.

I think there is considerable confusion, because the original transgender discrimination legislation was the Sex Discrimination Gender Reassignment Regulations 1999, which modified the Sex Discrimination Act of 1975 to apply to employment

www.legislation.gov.uk/uksi/1999/1102/regulation/2/made

however it specifically did NOT cover Part III of the SDA, which covers services.

So 1999 introduced SDA 1975 2A 'Discrimination on the grounds of gender reassignment' but created exceptions on the basis of 'genuine occupational requirement'

However the GRA 2004 said, at schedule 6, www.legislation.gov.uk/ukpga/2004/7/pdfs/ukpga_20040007_en.pdf (substituting into the SDA 1975) that you could NOT discriminate against people, even with a genuine occupational requirement, IF they had a GRC.

The Equality Act repealed the SDA 1975 (which, as modified by the GRA, did reference GRCs), and there is not one mention of the GRC in the Equality Act.

Clearly if I refuse service to a person who is legally female, on the grounds that they are not biologically female and I want to provide services to only females, then I am discriminating on the grounds of 'gender reassignment', so the GRC doesn't come into it except to preclude them from claiming 'sex discrimination'

The only place I can see a GRC making a legal difference (accepting, of course, that a public body might choose to recognise a GRC without being required to) is that there are MANY different types of discrimination, and there is NOT a generalised exception in each case.

For example, we can refuse to offer a service to a transgender person, GRC, or not, if we satisfy the exceptions discussed above.

However, the Equality Act of instance covers Higher Education admissions. This covers all types of discrimination except marriage and civil partnership. Hence discrimination in admissions on the grounds of sex or gender assignment (inter alia) are unlawful, but there is an exception for single-sex institutions to allow them to discriminate on the grounds of sex. However there is NO exception for gender assignment. So you could NOT refuse a transwoman with a GRC admission to a women's college, but potentially you could refuse a TW without a GRC, on the basis that it's allowable sex discrimination. As a TW w/out a GRC is in law a man, that would be allowable, presumably.

Hence the GRC might be useful in cases where sex discrimination is allowable but gender reassignment discrimination is not.

In the case of employment, the EA is usefully clear:

"The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
(a) in the case of gender reassignment, as references to a requirement not to be a transsexual person"

So in that case a GRC is not of any relevance either.

QuietContraryMary, thank you for your latest post. I appreciate the effort you put into it, I appreciate your explanation.

But it still tells me that: where men claim to be women, it still comes down to interpretations and subjective views; and there are also subjective interpretations as to where men can be excluded from women's spaces, despite them having a GRC. T.his is also legally acceptable

Currently, there seems to be a push, an emphasis, on forcing women to tolerate/accept men in women's spaces, women's sports, women's political roles - regardless of the fact that these men are not women, obvs!.

Current law fails to recognise women as distinct from men who claim to be women, and what women and girls' protection may be, depending on very many various interpretations of the Gender Recognition Act 2004, and the Equality Act 2010.

As I said, it's a mess!

Hmmm...those are men though, these 'transwomen' might be legally be identified as women by gender, but are still male by sex, and no, should not be in women's spaces, because of the 'intent to change gender' rule, meaning as pp said, can be 6'4 arse scratching jean wearing big bloke who says he's going to be a woman!

So, does the EA currently protect a, say, transwoman who has the intent of transitioning or is in the process of transitioning and has no GRC from (a) being discriminated against as a man (= right to male services), (b) being discriminated against as a woman (=right to female services, unless reason for exception...proportionate means...) or (c) we don‘t know, it is unclear until the laws are tested?

I am at a loss.

This is supposed to be law. Law should be clear. But this business is as unclear as unclear could ever be.
Yes indeed. I am glad the op started this thread as it has confirmed my view that when TRAs and Maria Miller tell us we have nothing to worry about cos Equalities Act, they are talking shit.

I am very grateful to the legal experts who post on here but the fact that you can't seem to agree either also confirms for me that the law is a complete dogs breakfast. I can't imagine any company wanting to risk it falling foul of it.

Current law fails to recognise women as distinct from men who claim to be women, and what women and girls' protection may be, depending on very many various interpretations of the Gender Recognition Act 2004, and the Equality Act 2010.

Yes. I disagree that the possession of a GRC is irrelevant to a claim of discrimination under the EA. There is case law on both sides. But the possession of a GRC, under the "case by case" basis rule that trans lobbyists insisted on, is very likely to strengthen an individual discrimination claim.

The possession of a GRC as a factor is implied in the explanatory notes to the EA.

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.

Just found the below while looking for something else. It's quite interesting. And yes confirms that there are different ways of looking at it. There are in fact a whole spectrum of opinions expressed, it's well worth a read. It seems to be compiled for the Trans Equality Inquiry or just after.

Claire McCann is a member of TELI and has advised the government on law around this. She says:

I would doubt that a service-provider of single-sex or separate services could turn away a trans service-user who holds a GRC because this is unlikely to be proportionate.

https://publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/39007.htm

This could surely all be cleared up if transwomen are legally recognised as exactly that-transwomen. Women only should be represented by the legal definition of women. We must be able to distinguish between the two.

Agreed. Transwomen are a subset of men; they are not a subset of women.

Yes, a subset of men, not women, as they are bio men. Trying to re-write it is just untrue.

No-one has issue with supporting genuine gender dysphoria and transex as a result, but you cannot successfully and absolutely refute biology.

Born male = lifelong condition regardless of lifestyle or gender choice, wanting to live life as a woman... Ditto female, living as man

But, right. By crying "transphobia" surely they're admitting that transwomen are men?

OP, have you found out exactly how the image is transphobic? Like, are they crying because they think it means transmen can't use? Or are they admittng TW are men?
Curious.