A question for the legal people.

[User07734]

"Some of the recent debates in politics, and 'debates' is perhaps a little charitable about the kind of tone a lot of them have. Focus on things like the campaigns against reforms of the gender recognition act. And a lot of that is based on sometimes deliberate and sometime probably not deliberate misinterpretations of what is in the gender recognition act and what is in the equality act of 2010. so those people who claim to not want to change the recognition act because of transgender (and it's mainly targeting transgender women) access to women services and women's spaces.. what they actually want, if we take them at their word, they don't want transgender women to be able to access women's services is to repeal key elements of the equality act. Currently self identity in every day situation with regards to access of single sex services would come under the Equality act under sex and reassignment protected characteristics. So those who campaign against equality for transgender people focusing on the gender recognition act, if they want actually to prevent transgender people from accessing single sex services according to their gender identity they actually want to change the equality act or repeal the equality act. "

Can you confirm the accuracy of this statement for me please? I think some bits have been confused and the person has their facts wrong but don't want to be specific.

Yes, they have their facts wrong.

It's also very poorly written so it's hard to understand what they are saying.

Nothing in the Equality Act says that "transgender people" (I assume they mean people with the Protected Characteristic of Gender Reassignment) can access single-sex services according to their gender identity. What it says is that they cannot be discrimated against because of their Gender Reassignment, eg you cannot pay a male who is transgender (ie a transwoman) less than a male who is not, just because he is trans. The transwoman's legal sex remains male (unless they have a GRC, where it can be more complicated), therefore the comparator class when assessing if discrimination has occurred are other males.

I agree with sonic - if you want to provide case law on the comparator point (which is the central issue) then here.

www.casemine.com/judgement/uk/5a8ff7bb60d03e7f57eb1a1f

Even if someone has a GRC, Schedule 3 to the Act permits single sex exemptions where it is a proportionate means of achiaveing a legitimate aim.

If more trans women get a GRC, then they are legally female and their comparator for the purposes of direct discrimation (s13 Equality Act) is a man. They would therefore get access to female spaces, unless to refuse them would be a proportionate means of achieving a legitimate aim.

Ignore what I said about the comparator being a man, it’s relevant to a different point but isn’t relevant to female only spaces. My 9 month old boy is distracting me.

I've transcribed a lecture in that person's defence. I've just written down verbatim what they said aloud which is why it looks strange on paper. Sorry, I should have explained!

"Currently self identity in every day situation with regards to access of single sex services would come under the Equality act under sex and reassignment protected characteristics."

This, for example, is completely inaccurate right? The speaker specifically uses the term 'self-identity' for access to single sex facilities.

Have you just assumed your baby's gender?

Sorry I'm confused I agree with Sonic's and Tufty's interpretation of the law. But I read that as contradicting the OP's post.

I would also take issue with terming those campaigning against the introduction of self Id being part of GRA reform as anti-trans equality. I have seen no discussion anywhere about removing any of the following for transgender people.

•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-2-right-life" rel="nofollow" target="_blank">Article 2: Right to life</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-3-freedom-torture-and-inhuman-or-degrading-treatment" rel="nofollow" target="_blank">Article 3: Freedom from torture and inhuman or degrading treatment</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-4-freedom-slavery-and-forced-labour" rel="nofollow" target="_blank">Article 4: Freedom from slavery and forced labour</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-5-right-liberty-and-security" rel="nofollow" target="_blank">Article 5: Right to liberty and security</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-6-right-fair-trial" rel="nofollow" target="_blank">Article 6: Right to a fair trial</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-7-no-punishment-without-law" rel="nofollow" target="_blank">Article 7: No punishment without law</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life" rel="nofollow" target="_blank">Article 8: Respect for your private and family life, home and correspondence</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-9-freedom-thought-belief-and-religion" rel="nofollow" target="_blank">Article 9: Freedom of thought, belief and religion</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-10-freedom-expression" rel="nofollow" target="_blank">Article 10: Freedom of expression</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-11-freedom-assembly-and-association" rel="nofollow" target="_blank">Article 11: Freedom of assembly and association</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-12-right-marry" rel="nofollow" target="_blank">Article 12: Right to marry and start a family</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-14-protection-discrimination" rel="nofollow" target="_blank">Article 14: Protection from discrimination in respect of these rights and freedoms</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-1-first-protocol-protection-property" rel="nofollow" target="_blank">Protocol 1, Article 1: Right to peaceful enjoyment of your property</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-2-first-protocol-right-education" rel="nofollow" target="_blank">Protocol 1, Article 2: Right to education</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-3-first-protocol-right-free-elections" rel="nofollow" target="_blank">Protocol 1, Article 3: Right to participate in free elections</a>
•	<a class="break-all" href="https://www.equalityhumanrights.com/en/human-rights-act/article-1-thirteenth-protocol-abolition-death-penalty" rel="nofollow" target="_blank">Protocol 13, Article 1: Abolition of the death penalty</a>

Aah crosspost.

Yes it is inaccurate but that’s the lie Stonewall are spreading.

That argument from the lecturer is predicated on a trans woman - with the protected characteristic of gender reassignment (section 7) - being discrimated against by being treated less favourably than a natal woman.

Looking at the legal machinism for that argument, section 13 (alongside section 7) says you cannot treat someone less favourably because of being transgender.

To establish less favourable treatment you need a comparator ie treated less favourably than whom?

Stonewall etc are presumably arguing that the trans woman can use a natal woman as a comparator and claim to have been treated least favourably than a natal woman because the natal woman can access the women’s service and the trans women can’t. If the natal woman is the correct comparator, that would be true.

However the case I’ve given you above makes clear that the correct comparator for the trans woman is a man. Therefore there is no less favourable treatment because the man cannot access the women’s service anyway.

Does that make sense?

Ps yes sorry I meant my Theyby

Currently self identity in every day situation with regards to access of single sex services would come under the Equality act under sex and reassignment protected characteristics

Yes that is inaccurate. Not least because if a service is "single-SEX", when "sex" is a term with a legal meaning, why would that apply to self-identity which is not law?

Having the Protected Characteristic of Gender Reassignment does not mean that you then ALSO have the Protected Characteristic of the opposite sex. The basis of their argument seems to be that having one automatically means the other, it does not.

dolorsit
Quite - and article 3 aside those rights aren’t absolute anyway. I don’t think the trans ideology understands the concept of that.

The text doesn't make much sense, but if "currently self identity in every day situation with regards to access of single sex services would come under the Equality act under sex and reassignment protected characteristics"
...then why is Stonewall campaigning for the removal of the single-sex exemptions from the Equality Act?

Thank you all for clarifying.

It's a bug bear of mine how human rights legislation is portrayed as some sort of top trumps. Rights sometimes conflict and sometimes the courts need to decide.

It's not bigotry to try to assert or protect one's rights. I confess I am more familiar with human rights legislation than the more recent changes to the equality act so acknowledge I have probably gone off at a tangent!

That's an interesting court case, not the least because the judge refers to the claimant as a man quite explicitly. Would they just a few years later in 2019?

However the case I’ve given you above makes clear that the correct comparator for the trans woman is a man. Therefore there is no less favourable treatment because the man cannot access the women’s service anyway.

What about with the gender ID certificate would the comparator then be a woman as the prisoner didn't have one?

"Wigs: their effective use in the event of an escape is obvious."

^The real complaint absent much details is that the claimant cannot obtain the following wigs, bras, concealer, makeup, sanitary towels

Sanitary towels???

I think the position would be with a GRC that if the trans woman was claiming sex discrimination the comparator would be a man. (The TW without a GRC in that case was claiming sex discrimination).

I would think the TW with a GRC is likely to claim discrimination on grounds of gender reassignment and use a woman as a comparator.

I agree McTufty. I think the correct comparator for a TW with no GRC is a man, and for a TW with a GRC it's a woman.

This is why I find it baffling that the Equality and Human Rights Commission say that TW (regardless of whether or not they have a GRC) should be allowed to use women's services and only refused on a case by case basis. I don't think anything in the Equality Act supports this interpretation of the correct legal position.

The comparator point also gives a lie to the claim made that changes to the GRA are just administrative and have no bearing on the Equality Act. It would effectively allow men to self identify into the protected characteristic of woman.

thanks for the thread just placemarking

This is why I find it baffling that the Equality and Human Rights Commission say that TW (regardless of whether or not they have a GRC) should be allowed to use women's services and only refused on a case by case basis.

I think the EHRC rowed back on this and updated their guidance recently.

I think the EHRC rowed back on this and updated their guidance recently

They rowed back on some stuff, but not this. This is still in the guidance, but it isn't what the Equality Act says.

They should review their guidance.

EHRC guidance here, on p.17, still says this. www.equalityhumanrights.com/en/publication-download/what-equality-law-means-your-business

But also note the explicit reference to the legal sex of a person being the deciding factor in sex discrimination cases in [https://www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language this statement from the EHRC]].

IIRC this was the EHRC indirectly correcting its own misrepresentation of the EqA sex-based exemptions in relation to people who identify as trans. (In response to criticism from Fair Play for Women I believe.)

Truly weasely though because they never clarified that they had it wrong. And they talk of case-by-case basis regarding the exclusion of GRC-holders when in actual fact the EqA states when the sex-based exemptions are used, the only condition is that this must be a proportionate means to a legitimate end. There is no prohibition on a blanket ban in the law, just that any exclusion must be justified.

this statement from the EHRC.

Is it possible to do a legal challenge to the guidence provided by the ehrc? If some lawyers think they are misrepresenting the law (and how serious is that!) can they be taken to court so that a judge can judge who is right?

It’s totally unacceptable to leave single sex women’s service and women’s space providers and women they serve, in this position of legal doubt.

This thread below was hoping to ask for more clarity via the Minister. my MP has responded to say they will be writing to her to ask.

www.mumsnet.com/Talk/womens_rights/3519928-UPDATE-CONTACT-VISIT-YOUR-MP-FOR-INTERNATIONAL-WOMENS-DAY?pg=1&order=

I sent my MP the FPFW sports briefing and the doc suggested by the OP.
IANAL, but is EHRC guidance being reissued without the current apparently deliberate and politicised inaccuracies, enough?

I mean, does this need Parliament to do something legislatively to resolve it, because presumably with Brexit needing to be sorted out nothing else is going to get through for several years? Or are we back to needing test cases?
And isn’t the root cause of the problem the retention of the GRA and don’t we need to campaign for this to be removed?

I am not sure how women’s rights to single sex spaces can ever really be safe while we have GRCs (and which nobody is allowed to ask to see ). Effectively that is legally binding self ID.

Requirements about ‘passing’ as an alternative would be arbitrary and unfair and would have the effect of encouraging young people to transiton medically and surgically ever earlier to be more likely to ‘pass’ which is the absolute opposite of safe for them or where policy should be be heading. So what should we be campaigning for?

Had an internet issue yesterday so could not get online but thank you for everyone who responded.

Can I ask another question re the op. This was said by a uni lecturer (during a lecture). It is not the only inaccurate statement made unfortunately during this class. How would you handle it? It's a woke university and I feel like I will be branded aTERF for asking they stick to facts during lectures