MNHQ, have you seen this new EHRC guidance?

[TheCountessofFitzdotterel]

Here

Equality and Human Rights Commission has issued new Guidance making it clear that ONLY Gender Reassignment is covered by the Equality Act.
Transtrenders, Furries, Non-binaries, etc are not covered.
So-called "misgendering" can only be regarded as at fault if the INTENTION was to harm. So if it is politics, etc, that makes you refer to someone's biological sex you are in the clear.

This might have implications for Mumsnet's policy on misgendering.

There’s no such thing as misgendering. There is missexing, which happens rarely and accidentally, usually to women with short hair and wearing “masculine” clothes. And then there is accurately sexing a person who gets offended because you’re supposed to know what magical view they have of themselves, which is impossible.

If gender identity is internal, it’s just not possible to accurately “gender” a person without asking every single person you meet in every walk of life. Which just can’t happen.

With regards to repeated “misgendering”, pronouns are as much sex-specific as they are gender-specific. So again, it’s about asking people to deny biological reality. I will never, ever use female pronouns in reference to male genitalia e.g. “she still has her penis and testicles”. I just can’t. I refer to certain people as “she” purely to avoid moderation because it’s not worth the effort sometimes, which demonstrates that there has been successful policing of language. I do not view those people as female however. From now on I’m going to follow Vicky and not give in to this.

So because “misgendering” is when people fail to read minds, fail to deny biological reality, and fail to cow their language under pressure of bullying, I think it should be against the law to punish, discipline at work, or receive visits from the police for “misgendering”.

Hi -- I have done a document compare with the previous version of this guidance (from June 2018) and there really are no big differences.

You can see it on the internet wayback machine here <a class="break-all" href="https://web.archive.org/web/20190114110836/www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination" rel="nofollow" target="_blank">web.archive.org/web/20190114110836/www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

They've removed a box at the top which said: "Women and Equalities Committee recommendations and a video at the top. But there are no changes to the text that is there.

As the FOI'ed emails twitter.com/2010Equality/status/1101517064307728385 show the EHRC saying they have done a review of the guidance 'in its entirety' (not just this page, but the guidance documnets) but no sign that they really seriously have.

The section with the four bullet points at the end is the important section in relation to single sex spaces. It contains two bullet points which seem incompatible.

They say a difference in treatment may be lawful if:

"Circumstances when being treated differently due to gender reassignment is lawful"

OR

"a service provider provides single-sex services. If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender. In very restricted circumstances it is lawful for an organisation to provide a different service or to refuse the service to someone who is undergoing or has undergone gender reassignment"

These two bullet points actually refer to the same thing. The circumstances where the Equality Act say being treated differently due to gender reassignment is lawful include those that relate to single sex services.

For example Schedule 3 section 26 and 27 sets out the general circumstances when sepperate & single sex services are allowed

Separate sex services for persons where a joint service for persons of both sexes would be less effective (example homeless hostel)

These include

1. only persons of that sex have need of the service (example smear test clinic)

2. the service is also provided jointly for persons of both sexes, and
   would be insufficiently effective were it only to be provided jointly (example a fathers group in addition to a parents group)

3. A joint service for persons of both sexes would be less effective

4. The service is provided at a place which is, or is part of a hospital or care setting

5. The service is likely to be used by, two or more persons at the same time, and a person of one sex might reasonably object to the presence of a person of the opposite sex. (department store changing room)

6. This likely to be physical contact and a person might reasonably object ( massage service to be provided to women only by a female massage therapist with her own business operating in her clients’ homes )

The examples are official examples from the Act. Section 28 says transgender people can be excluded from separate and single sex services. (and in any case if someone hasn't legally changed sex it seems likely that they are already excluded by sections 26 and 27).

It does not say anything about "very restricted circumstances ".... what it says in all cases is "a proportionate means to a legitimate aim".

The EHRC guidance does not seem to be thought through. For example say the single-sex service is a cervical smear clinic (one of the example in the act) it would be ridiculous for the organisation to treat people according to their "acquired gender". I don't know where the "very restricted circumstances " language comes from, but its not in the Equality Act.

We should push them on this -- write to/visit your MP this week and ask them to push Penny Mordaunt for the publication of clear guidance on single sex exemptions in the equality act. www.mumsnet.com/Talk/womens_rights/3519928-UPDATE-CONTACT-VISIT-YOUR-MP-FOR-INTERNATIONAL-WOMENS-DAY !

Sorry....Long post!!!

The EHRC guidance does not seem to be thought through.
It seems to be contradicted by the EA in several places, not least of all single sex services.

"a local health authority decides that it will not fund breast implants. As a result the health authority refuses to provide this treatment for a woman undergoing gender reassignment even though she considers it essential to make her look more feminine.The same policy is applied to all women but puts transsexuals at a greater disadvantage. The health authority may be able to justify its policy if it can prove that it has legitimate reasons"

This is a false equivalence and I hope it is contested. You cannot compare SRS with cancer treatment and subsequent reconstruction.

If a health authority refuses to fund breast reconstruction for female cancer patients. but continues to provide silicon implants for men and penile reconstruction after genital cancer, this will place women at a disadvantage compared to men.

If a health authority provides breast implants for trans women but refuses to provide breast reconstruction for trans men, this places trans men at a disadvantage.

If a health authority provides breast implants for trans women but refuses to provide breast enlargements for women, this places women at a disadvantage.

These examples are equivalent.
I don't know why they think that trans women who want breast implants are worse off than women who have had a mastectomy and been refused an implant.

usershmoozers I know that one is nuts too. How does being flat chested put a transwoman at a greater disadvantage than a woman.... Surely it can only be that their distress is counted as more important

And also, according to the EHRC the set "all women" does not include MTF transsexuals without a GRC - since they are legally male. The comparator class is not "other" women, but other men.

I don't know why they think that trans women who want breast implants are worse off than women who have had a mastectomy and been refused an implant.

It's mind-boggling. What is the thinking here - that women as a group have an advantage because they already have, or have had, breasts?
They can't assume that all transsexuals want breast implants, because as they point out,
"To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one."

It’s all bullshit.
very restricted circumstances they know what they’re fucking doing

2010Equality

It is interesting that EHRC has made no reference to Schedule 3: Services and public functions: exceptions

Section 27: Single-sex services [see especially items 5, 6 and 7]

www.legislation.gov.uk/ukpga/2010/15/schedule/3

Don't forget, discrimination is as regards other legally male people when the person claiming discrimination is a transwoman without a GRC. So are they discriminated against for being excluded from a female single sex space? No, because other males are also excluded.

Reading those emails; not one actual iota of recognition of the instances that put women and girls in actual danger; it's all about not upsetting people.

what I mean is:

From a safeguarding point of view; there is zero - nothing - nada in there that infers they ever went back to the basics of sex based exemptions being there for a reason. And the reason being...yada yada yada.

Reading those emails; not one actual iota of recognition of the instances that put women and girls in actual danger; it's all about not upsetting people.

Exactly. If the public body responsible for monitoring EQUALITY is incapable of interpreting law without prioritising the feelings of one minority group (or rather, a handful of self-elected representatives of that group), what hope is there that lawmakers will be able to deal with the GRA reform objectively and without bias?

you are not protected as transgender unless you propose to change your gender or have done so.

Still has the ridiculous 'propose to change' part seemingly. Which could be as simple as declaring to yourself in your head.

OK should have FTFT. I see that many have explained this, still a bit early for me after a 6am finish

That’s absolute tosh which means nothing and makes it practically impossible to challenge anyone who decides to simply say they are the opposite sex. It also means sports clubs, competitions and orgs will just let anyone play for which ever “gender” they want.

Or is it just me that thinks none of that makes sense or gives anyone any useful guidelines?

The EHRC guidance in the op hasn't really changed I don't think.

I have been banging on for ages about the disconnect between the guidance and the Equality Act itself.

There is nothing in the Equality Act itself to say that a trans person should be treated in their acquired "gender" or sex. The guidance does, but it is the Act that is the law, not the guidance.

My view (I am a lawyer) is that the correct comparator for discrimination purposes for a transwoman (without a GRC) is a man who is not trans. Not a woman. So if a transwoman is denied a service offered to men that is unlawful discrimination. But if a transwoman is denied a service offered to women that is not discrimination.

The position is different for TW with a GRC. The GRA 2004 creates the legal fiction that they are a woman for all purposes. Therefore the correct comparator is a woman who is not trans. This is why it's nonsense that self ID for a GRC doesn't have an impact on the Equality Act.

Of course I haven't got onto the exemptions under the Equality Act. But my view invoking the exemptions to exclude TW (without a GRC) is no different to invoking them to exclude men. So for example if a refuge excludes men they are entirely within their rights to exclude TW. And an all women short list is permitted and can exclude men, whether TW or not.

Even where there is a TW with a GRC they can still be excluded from women's spaces in some circumstances lawfully under the Equality Act.

Sorry for wall of text. I did put paragraphs in when I was typing but they have vanished.