Labour promises to keep single-sex exemptions

[RoyalCorgi]

From the manifesto:

labour.org.uk/manifesto/tackle-poverty-and-inequality/

"Ensure that the single-sex-based exemptions contained in the Equality Act 2010 are understood and fully enforced in service provision."

This is quite something.

The exceptions under the Equality Act relate to the protected characteristic, which is gender reassignment. It includes both GRC holders and non GRC holders.

But a man who gets a GRC becomes legally female, while a man who identifies as a woman but does not have a GRC is legally male.

But a man who gets a GRC becomes legally female, while a man who identifies as a woman but does not have a GRC is legally male.

To put this a bit more clearly:

But a man who gets a GRC becomes legally female, so is a woman with the protected characteristic of gender reassignment, while a man who identifies as a woman but does not have a GRC is legally male, so is a man with the protected characteristic of gender reassignment.

Having just written that explanation, I can see now why the TRAs are saying that sex-based exemptions exclude transgender people, because that is certainly one possible interpretation.

A woman who has the PC of gender reassignment could be either a transwoman with with a GRC or a transman without a GRC. Both could be excluded from women's services. Similarly, a transman with a GRC and a transwoman without a GRC could be excluded from men's services. Where do the transgender people go?

OldCrone

Birdsfoottrefoil do you have a link for that? I'm sure I've seen something like that somewhere in the legislation or guidance, but when I was looking for it yesterday I couldn't find it.

It's given as an example of proportionate means to a legitimate aim in the case of rape counsellor being a role which could be limited to females only, so as not to further traumatise female rape victims.

"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."

http://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/26/1/1

Thanks Ereshkigal, I knew I'd seen that somewhere.

The fact that this example exists shows that two TRA myths are wrong. This is a clearly not a "case by case for individual people" situation as it refers to specifying a female only role. And it means that an MTF person with a GRC does not completely have all the legal rights of a woman.

I see what you mean now Crone. Wasn't this discussed as part of the Enforcing the Equality Act inquiry? IIRC the report stated that GRC holders can be excluded under the SSEs.

It's changing the marker on the birth certificate that is the problem.

That should never have happened. And it should never happen.

x post

Agree Datun.

"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."*

So can Dawn Butler not read then?

It's changing the marker on the birth certificate that is the problem.

That should never have happened. And it should never happen.

I agree. The GRA should be repealed.

OldCrone - what you're missing is that EqA says that it's okay to discriminate against the protected category of gender reassignment (with or without a GRC) in providing single sex spaces under the exemptions. EHRC - thoroughly captured as we know - put out guidance with the interpretation that it was discriminating against the protected category of sex to exclude GRC holders. Stonewall ran with it (as you'd expect with its connection to David Isaac). But they have had to row back at least partially on that and change their guidance as per image.

Maya F wrote a good briefing for FPFW on this (the image is there too):

fairplayforwomen.com/single-sex/

It's changing the marker on the birth certificate that is the problem.

Yes. Because of the privacy aspect. Privacy is what means the circle cannot be squared.

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

The thing is, a person with a GRC will have female on all their ID documents including their birth certificate, so when applying for work or accessing services there is no way that providers/employers could challenge this. So in practice the sex-based exemptions do not work. If a person says they are female and all their documents state they are female how does this work in the real world? It would basically be a law that it is impossible to enforce and that is arguably bad law.

Julian Norman wrote a great blog about the interactions between the EA and the GRA a while back and it's worth another read in relation to all of this. It really highlights how self ID would impact on the single sex exemptions in the EA.

"It is legal for an organisation to exclude a trans person even with a GRC. Whether this is possible in practice is a moot point"

filia.org.uk/news/2018/8/23/has-everyone-really-got-it-wrong#

Thanks for that link Lang.

I think there's still a problem with that phrase 'proportionate means of achieving a legitimate aim' which means that whether or not transwomen with GRCs should be treated as women is down to someone's judgement about what is proportionate and legitimate, leaving their judgement open to legal challenge.

The prison service could have used the exemption to keep TW with GRCs out of women's prisons, but they chose not to.

If a person says they are female and all their documents state they are female how does this work in the real world? It would basically be a law that it is impossible to enforce and that is arguably bad law.

This is why I've been saying that single-sex provision is incompatible with a law which allows people to change sex.

In theory you might be able to make a distinction between women and transwomen with GRCs, but in practice it might be impossible, because in terms of their legal documentation, they are indistinguishable from each other.

The thing is, a person with a GRC will have female on all their ID documents including their birth certificate, so when applying for work or accessing services there is no way that providers/employers could challenge this.

The employer can only say 'oh you look trans so you can't have the job' which is a bit awkward if they are not. So they are going to go with the easiest, least embarrassing, least likely to be sued over option. Path of least resistance.

It is a variation on the Monty Python meme that does the rounds "I want the right to have babies" "Where are you going to gestate it - in a box?"

Women have the right to single sex spaces, but no practical means of achieving it.

The thing is, a person with a GRC will have female on all their ID documents including their birth certificate, so when applying for work or accessing services there is no way that providers/employers could challenge this.

I agree. Was just clarifying the wording of the EA.

When Labour stop wasting our money forcing us to challenge them in court over their actions on All Women Shortlists, I'll believe they understand and support The Equality Act, if not women's rights.

The employer can only say 'oh you look trans so you can't have the job' which is a bit awkward if they are not. So they are going to go with the easiest, least embarrassing, least likely to be sued over option. Path of least resistance

Yes It boggles my mind. If an organisation wanted to enforce the sex-based exemptions and a woman was denied a service because she was perceived to be a trans woman I wonder on what basis she could sue? Discrimination on the basis that she was perceived to have undergone gender reassignment?

When Labour stop wasting our money forcing us to challenge them in court over their actions on All Women Shortlists, I'll believe they understand and support The Equality Act

Exactly, if they genuinely wanted to strengthen women's sex based rights this is something they could do now, no need to wait until they win an election. Actions speak louder than words.

As I've reading and rereading these posts about the law, exemptions, definitions, privacy et al, it occurs to me that the most glaring issue is this.

As it stands, via the grounding in the law, and by extension any guidance around it, manifesto promises etc, our sex based rights are still essentially hanging on whoever decides to grant them. The GRA and any of the proposed reforms thereof, undercut absolutely any reading of the EA2010 depending on whoever is in power deciding what sex means.

On that basis, having ruled out the Greens and LibDems for being quite explicitly Anti-Woman, I've also sadly come to the conclusion that I cannot vote Labour right now because it's clear that they still view women's rights as something they bestow if they feel like it, and withdraw for the same reason.

It's late and I'm stressed, but it's the most awful sinking feeling that actually, sex based rights in law seem to be a bit of a mirage.

The employer can only say 'oh you look trans so you can't have the job' which is a bit awkward if they are not. So they are going to go with the easiest, least embarrassing, least likely to be sued over option

If they want to avoid being sued by someone then their best bet would be to try and find a legitimate reason not to employ anyone who looks trans. Far safer not to take them on if they have other candidates that are at least nearly as good.