The "West Yorkshire" case - a legal about single sex exemptions

[2010Equality]

[Disclaimer: I'm not a lawyer.... ]

I have just posted a long thread on twitter, and I hope you don't me posting it here (....MNer under other names). Excuse the clunky twitter-thread sentences.

It is about the "West Yorkshire Case" which is one of the few cases that has tested the law around when transgender males should be treated as females in relation to single sex exemptions to discrimination law. (it predates the Equality Act 2010, but it is still relevant). This case went to the House of Lords and people often point to it to say that it shows that the law says trans people should be treated as the opposite sex in relation to single-sex exemptions in the EA2010, with limited 'case by case' exceptions. But the case itself suggests otherwise....

publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/chief-1.htm

The circumstances of the case happened in 1997 and the final appeal was in 2004 . It concerns a police constable and was turned down on the grounds that the job required being able search either male or female people (police rules are that people should be searched by someone of their own sex).

As an “apparent woman” A could not search men as it would undermine the suspect’s decency and privacy, but as a “legal man” it would have been unlawful for A to search female suspects. Since searching suspects is part of the job, the Chief Constable had decided it was not possible to employ A. However this meant that A was being treated less favourably than a non-transsexual person (either male or female) and was therefore being discriminated against.

The case went to tribunal, appeal and eventually the House of Lords to square the circle between the responsibility of the police force to “reduce to a minimum the embarrassment that a person being searched” and the human right of transsexuals not to be discriminated against. Much hinged on the fact that A was a post-op transsexual who, according to the judges passed as a woman for all intents & purposes “If she is treated, as she wishes, in all respects as a woman, nobody will be any the wiser”

The tribunal considered the risk to the police force if A was employed; How often are searches? If a woman found out she had been searched by a man could she file charges of assault? What if instead arrangements were made for a female officer to undertake searches?The tribunal judged that it was not proportionate to deny the applicant a job as police constable, because of the issue with searches, and this was ultimately upheld by the House of Lords.

The rulings did not say that the police force must in all circumstances treat A as a woman. The tribunal discusses a scenario of a Muslim woman in custody saying that a ‘community leader’ might object, and ‘it may be proper to arrange for female police officer to undertake care
The HoL ultimately agreed that A could search women, saying that the requirement to be "the same sex" could be interpreted as the “acquired gender of a post-op transsexual who is visually & for all practical purposes indistinguishable from non-transsexual members of that gender”

The law lords also said that it would have been an acceptable option for the Chief Constable to have employed A on the basis that arrangements could be made for other officers to perform any searches.One law lord argued A “cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer" could insist something similar
“The Chief Constable shld not compromise the officer's privacy by revealing the matter in question when there is no good reason . But, equally, an officer cannot insist that the CC should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential.“

The case did establish that someone who is born male could be treated as female in certain circumstances, and the law lords were clearly anticipating the Gender Recognition Act.The potential objections of women to being searched by someone male were certainly not brushed aside as unreasonable. But the law lords took a view that, in this case, what a suspect didn’t know wouldn’t hurt them.

It does not set a precedent that women can not object to sharing intimate spaces, being searched etc… by someone male. Or that orgs offering single-sex services (be it a gym changing room or a rape counselling service) should not endeavour to provide a male-free environment.

It is notable that in considering the opposite scenario (could A search men?) there was never any Q - all agreed that since “to all intents & purposes she is a woman, a man might reasonably object ” (no need for him to be a Muslim, or to have a community leader speak 🙄)

An interesting window into what they were thinking: Baroness Hale opined ‘it would not be rational to object to being nursed by a trans person of the same sex’ , as this was not similar to being nursed by ‘a heterosexual person of the opposite sex. She clearly did not anticipate that the trans umbrella would expand to encompass the idea that women can have penises, and that heterosexual men who transition to identifying ‘lesbians’ with male bodies could demand access to spaces where women expect privacy.

It is important to note that the case was about whether A shld have been denied employment by the police, not whether A should have been treated in every way as a woman. The law lords agreed that it could have been proportionate to employ A but make other arrangements for search. Nor does the case support the idea that is now promoted of absolute access combined with absolute confidentiality in every circumstance. It anticipates that organisations have to balance the privacy and dignity of others with the right to equal treatment by transsexuals.There is nothing in the case that suggests that @YHAOfficial @Girlguiding @Swim_England @cityoflondon @FA @metpoliceuk @hmpps @EastSussexCC are doing the right thing in disregarding women's reasonable privacy and dignity

Where this case has been most influential is that the language about treating transgender people who are “visually & for all practical purposes indistinguishable” as the opposite sex was adopted into the @ECHR into their statutory Code of Practice, tho it isnt what the EqA says.This rule is inhumane and unworkable in most situations. It suggests that someone's rights to not be discriminated as woman depend on how they dress, whether they are wearing make-up and how much depilation they do. So it has morphed into the idea that people should be treated as their ‘acquired gender’ as long as they are making some visual effort, even if in practice they are NOT indistinguishable from someone of their actual biological sex. And this then has morphed into the idea that anyone w the protected characteristic of “gender reassignment” (which does not necessarily entail any visual changes whatsoever) shld be able to access single-sex spaces of the opposite sex, and that anyone who opposes this is a bigot.

The lesson taken away from the W Yorkshire case is the exact opposite of the law lords careful deliberations on org's responsibility to treat transsexuals equally to non transsexuals of the same sex AND respect other men & womens rights to dignity, privacy & non-discrimination

Bump

Seriously? Crikey.

“visually & for all practical purposes indistinguishable” as the opposite sex

Spot 'em a mile off, love. The uncomfortable truth is that it's an unusual person who can pass in real life.

Spot 'em a mile off, love. The uncomfortable truth is that it's an unusual person who can pass in real life.

Not only that, it doesn't take into account men who will deliberately deceive and disguise themselves in order to access women. We know men go to great lengths. Priests, police, teachers.

The potential objections of women to being searched by someone male were certainly not brushed aside as unreasonable. But the law lords took a view that, in this case, what a suspect didn’t know wouldn’t hurt them.

Two things. Yes it fucking does. How dare they. If they haven't consented to a man touching them, it's sexual assault.

And secondly, this seems to have morphed, like a lot of the other things, into men gleefully claiming they can search women. Never mind the women not having any idea.

Interesting comments OP, I'll have a look later but thanks for sharing your thoughts on this.

Yup

The Equality and Human Rights Commission said in its response to the GRA consultation "There is evidence that practical guidance and other forms of
assistance is required to help trans people, single-sex and separate-sex service providers understand and navigate the
complexities of sex-based exceptions in the Equality Act 2010, without compromising the service provided to women in difficult and vulnerable situations."

If only we had a Commission of highly paid lawyers (£17m budget!) working on safeguarding our rights that could have provided that kind of advice.

Its not just" difficult and vulnerable situations" it's ordinary situations. EVERYDAY. For every woman and girl.

No mention that WOMEN could have done with a little assistance understanding our rights? (and being asked whether we "reasonably" object to men in single sex spaces)

I notice they only anticipated a problem if a 'Muslim leader' (male, I presume) complained about a M2F officer searching a Muslim woman. No thought that the woman herself might justifiably object.

angry Its not just" difficult and vulnerable situations" it's ordinary situations. EVERYDAY. For every woman and girl.

I must admit, even I couldn't have conceived of the number of ways this ideology can stick it to women.

Who, in a million years, would have thought beauticians would get targeted for not waxing cocks. Legitimately targeted.

This is interesting. Based on what you have said, I do think the Law Lords have taken a common sense approach and have balanced rights appropriately given the law re discrimination and that English law does allow for people to amend their birth certificate to show opposite sex.

What I think it shows, is that the situation itself necessitates a bit of a “fudge” so that given A passes as a woman, out of practicality and convenience, they consider there is not a need to inform every woman that A may search, that A is actually a trans woman. This is of course, controversial. What they are hoping of course is that people would never know. But it’s problematic.

What is interesting too, is that A is post op. To me, this makes a huge difference. One of the reasons for my own opposition to the current TRA agenda is the whole “some women have penises” mantra. A trans woman can look like a man, retain all male genitalia, yet still access women only spaces as a “woman”. If A had, for the sake of argument, not been post op, worn a beard and been 6 foot tall, the court’s decision could have been different, in fact, at that time, I imagine there was little concept of “I feel like a woman, therefore I am....”

The problem with making a distinction between pre and post up is it's not only an illogical one, but also a misleading one. A man with or without a cock is not a woman.

But neither does it indicate intent. For instance, the huge cohort of transwomen who have autogynephilia (arousal at the thought of themselves as a woman), can go the whole hog and have genital surgery. The ultimate aim is to have sex 'as a woman'.

So the lack of a penis does not stop this person from using women unwittingly in their sexual fantasy.

Neither does it indicate a lack of sexism, if fact, rather the opposite.

Here is Miranda Yardley, a transwoman who has had, as far as I know, genital surgery, analysing another transwoman who has also had genital surgery.

mirandayardley.com/en/what-does-it-mean-to-be-juno-roche/

Essentially, Juno sees these fantasies as being something that makes them ‘a woman’, rather than what they really are, an expression of Juno’s (masculinised) male sexuality.

I notice they only anticipated a problem if a 'Muslim leader' (male, I presume) complained about a M2F officer searching a Muslim woman. No thought that the woman herself might justifiably object.

That bit gave me the rage

What I think it shows, is that the situation itself necessitates a bit of a “fudge” so that given A passes as a woman, out of practicality and convenience, they consider there is not a need to inform every woman that A may search, that A is actually a trans woman.

Yes i think you are right. This is where it started. But we've landed a long way from here.

And as Datun said, a man without a penis is still a man.

It is noticeable in the case is how they didn't really consider the implications of a case where someone doesn't pass (other than hoping that the Gender Reassignment Bill as it was at the time would sort out clear criteria).

The reality is there are lots of people who don't pass in their chosen 'gender' (probably more than those who do) and they also have human rights to equality. So that means that this 'fudge' which only solved the problem for those who pass, was never going to hold.

Instead it drifted and was pushed towards treating everyone as if they pass - and shutting down the speech of those who refused to pretend (and conveniently forgetting that no one had asked women if they do actually object to organisations lying to them about the sex of the people who are able to touch and see their body in the first place).

But if it could go the other way if the starting point is that there are lots of people who don't pass in their chosen gender, and they have human rights to equality. They should be able to be employed in most jobs (where sex is isn't an occupational requirement) they should be able to use the public pool, they should be able to pee, they should be kept safe in prison etc.... and organisations need to work out how to accommodate them. But none of this requires that the privacy & dignity of women in those spaces should be sacrificed. So then you need third spaces, unisex options etc... its not that hard.

And once you have those spaces then the question with whether someone like 'A' should have the right to handle women without their consent becomes clearer. No. Because you can find a way to protect the rights transgender people without undermining the rights of women (and no one gets extra rights from looking pretty).

This is a great example of institutional sexism for people who can't see that it exists.

Exactly. Its like saying its not rape if you were asleep at the time.

'Passes' is so subjective. It's very individual and would depend on the situation. I suspect it would be very different for a man in a non intimate situation and for a women being touched.

We seem to be in a position where many people are pushing TWAW, yet want to hid the fact that a male transperson may be in a female space or touching a female person.

If we are happy to treat male transpeople as female in all situations, why be coy?

What I think it shows, is that the situation itself necessitates a bit of a “fudge” so that given A passes as a woman, out of practicality and convenience, they consider there is not a need to inform every woman that A may search, that A is actually a trans woman.

I really struggle with the idea that for ease, women and girls lose the right to consent.

Agree - passing is not measurable.

My DH has faceblindness. He's not able to recognise people AT ALL out of context, or if they change their hair, lose or gain weight, whatever. I rarely forget a face and register differences really quickly.

So, we could both be looking at the same transperson and he'd see one sex and I'd see the other. Now, if that transperson was a police officer, who'd been judged as one who passes and therefore could do this sort of search on me - but my freaky facial recognition super power would mean I object...then am I committing a hate crime?

I really struggle with the idea that for ease, women and girls lose the right to consent.

This. Fuck their ease.

Also, it's not in line with existing consent case law. Several women have been prosecuted for deceiving sex partners that they were men.

It's quite clear that men know the difference between trans women and women when it comes to sexual relationships.

Women know this too of course. However, women are not allowed to speak up about this for fear of violence and silence.

So if they can deceive a woman well enough, it’s not assault? Just wow.

I wonder how many cases of deception go through the criminal courts each week? ‘I was very convincing your honour, they really had no idea I wasn’t Mr Jones.’ Well then, off you go with that £30000. You obviously made enough effort to make the bank believe you were Mr Jones. Bravo, sir. Yeah right...

Funny that, introduce money, or the discomfort of men, and the bar suddenly shoots up.

Thank you for posting this OP. V interesting. West Yorkshire eh?

Creating a fudge to accommodate a male, and justified because if women don't know then that's OK (or are afraid to speak up)

And so its not theft if you didn't know it had been stolen (and only becomes theft when you realise?) Or its not speeding if no one sees you do it? Or not rape because the woman in the coma didn't know about it?(I hope not) FFS.

visually & for all practical purposes indistinguishable At least no one will have to wax JY in the UK seeing as a dick or any kind of genital surgery is visually and practically distinguishable, amongst other characteristics. And for toileting and medical purposes (and people with eyes) this can never be true anyway.

all agreed that since “to all intents & purposes she is a woman, a man might reasonably object ” except that the transwoman/male was not a woman to all intents and purposes a woman where they?

Not medically, not biologically, not sexually, not visually to many people... else the case would not have to be decided upon in the first place. The statement is not fulfilled. The transwoman's intent maybe, but on what other basis other than clothes and hair? How can something so illogical and disprovable be taken into law?

The balancing should have been that the transwoman officer could not search anyone since it would require the individual consent of a person and you cannot ask a suspect to consent on the spur of the moment as it could be coercive and they would likely feel pressured to agree to something they were uncomfortable with so that the police would not hold it against them. The consequence may be then that they cannot work alone and if for business reason this is not practical then they cannot be employed as a front line police officer (just as people with certain disabilities would be not be eligible for certain police roles). But yeah, hey its only women affected so who cares.

I have to say I do not think Baroness Hale a much of an ally to women at all.