Anyone watching GMB?

[TheNameGames]

Sal Brinton from Lib Dem’s being grilled on Good Morning Britain by Piers Morgan just now. Stuttering and uhhming and ahhing as much as Jo. A lot of deflecting and silence. Piers bringing up a lot of points raised on this board.

“Why aren’t you standing up for women”? He asked.

The long journey idea makes no sense - if indeed going on a long journey toward transitioning is viewed as a valuable thing that demonstrates the trans person's commitment and genuineness, then what on earth was wrong with the two year wait to get a GRC?

As usual women get screwed over either way though.

I mean transmen belong in womens prisons but theres no denying that theres possibly a power imbalance with years of testosterone and probably a massive mind fuck as often they pass quite well . So women are locked up with men who say they are women and women who are stronger and on testosterone which can cause more aggression cant it?

The 'journey' is also part of the campaign to affirm identity rather than protect rights.

The man who (ha, ha, ha!) told Jo Swinson to wear a low cut top wasn't appreciating her sodding journey.

The EA2010 requires organisations to treat a man with a GRC (who is legally a woman) the same as any woman, unless there is good reason not to (proportionate/legitimate clause). The default is that the single-sex exemptions are for all people classed as women under the law.

The trouble is we have completely no case law in this area.

Preventing harassment is always a legitimate aim and accommodating a TW with a GRC in a different way in e.g. a hospital ward, is surely proportionate because the addition of only one TW to an otherwise female only space makes it mixed sex for everyone.

That's what I would argue if I was even a pretend lawyer, anyway.

In fact the EA doesn't directly say you must treat a tw with a GRC the same as any woman unless (bla bla) - that comes from the GRA, which says they are legally female. But it is made clear that terms and conditions apply, including T&C written into any other law - e.g. the single sex exceptions in the EA.

Pencils have you thought about becoming a lawyer? You'd be totes amazing.

Sal lets her mask slip a bit when she says 'feminist' doesn't she? We see you Sal.

Pencils you wonderful woman, thank you

The EA says we have the right not to have our dignity violated. It says that service providers are prohibited from creating an intimidating, hostile, degrading, humiliating or offensive environment for us, based on the PC of sex.

This. The safety issue is of course important but they can argue out of it with the mostest oppressedest status.

It's harder to argue that women don't face a loss of privacy and dignity.

Bear this in mind when arguing with trans allies and activists.

In fact the EA doesn't directly say you must treat a tw with a GRC the same as any woman unless (bla bla) - that comes from the GRA, which says they are legally female. But it is made clear that terms and conditions apply, including T&C written into any other law - e.g. the single sex exceptions in the EA.

The GRA says of a man with a GRC "the person’s sex becomes that of a woman". The EA talks about sex and single-sex exemptions without being clear whether or not that includes people who have 'acquired' a different sex from the one they were born as. In the absence of any clear
definition in the EA, I have assumed that if a "person’s sex becomes that of a woman", then that is their sex as far as the EA is concerned, including with regard to single sex exemptions.

The EA doesn't state explicitly that 'sex' means someone's original sex on their original birth certificate, so it doesn't explicitly exclude a person's new sex which has been 'acquired' as a result of a GRC.

But as you say, we have no case law to refer to.

Additionally in the EA there are the gender reassignment exemptions, which say that people with that protected characteristic can be treated differently in certain circumstances. These are the ones where people who have 'changed sex' can be excluded, but it's not clear how this can be implemented in practice, particularly for someone with a GRC.

Pencils have you thought about becoming a lawyer? You'd be totes amazing.

That’s a bloody brilliant idea.

I'm too old. Even thinking about all those long hours makes me tired!

I'll probably get deleted for this but is SB a TW?

The GRA says of a man with a GRC "the person’s sex becomes that of a woman".

It does, but section 9 (3) says 'subject to provision made by this Act or any other enactment or any subordinate legislation.'

TRAs don't shout about that subsection very much.

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

If I've understood your posts correctly, you see the EA single sex exceptions as the normal everyday exceptions and then the gender reassignment exceptions as something extra-exceptional on top, with a higher bar?

That's not how they read in the EA itself. Gender reassignment exceptions are just there alongside sex exceptions with no additional bar and no distinction between those with a GRC and those without one. For example, in Schedule 3 (services and public functions), part 7 para 28 says you can treat people with the PC of gender reassignment differently because of anything done in relation to providing single sex or separate sex services.

www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/7/crossheading/gender-reassignment

Paragraphs 26 (separate sex), 27 (single sex) and 28 (gender reassignment exception) all have the same threshold - proportionate means of achieving a legitimate aim.

I can't think of any circumstances where paras 26 or 27 would be applicable but 28 would not be applicable.

Where we come unstuck is with the EHRC Statutory Codes of Practice, which fit under the definition of 'any subordinate legislation' because they have been passed by parliament in a thing called a statutory instrument.

www.legislation.gov.uk/uksi/2011/857/made

SIs are what the government reckon the law says. They can be challenged by judicial review but it's very expensive and stressful.

Despite their recent 'clarification' EHRC Statutory Code still says that excluding any individual tw from a female only space can only be done on a case-by-case basis, regardless of what policies an organisation has in place. It also says that tw with a GRC should only be excluded from female only spaces in extra special truly exceptional circumstances which probably shouldn't ever happen.

But none of that is in the EA itself. EHRC made it up with the extreme help of the usual dodgy trans lobby groups. Following a recent consultation on the enforcement of the EA and the role of the EHRC, the Women & Equalities Committee asked the EHRC to write new, much clearer Statutory Code and lay it before parliament but EHRC refused. Because there is no case law (which is part of EHRC's remit).

NotAssigned she was born in 1955 and went to a girls' boarding school.

This is what happens when you give Sal Brinton enough rope. Watch and learn, Piers.

twitter.com/bbc5live/status/1204759599842091011

It does, but section 9 (3) says 'subject to provision made by this Act or any other enactment or any subordinate legislation.'

I have to admit that I don't understand that particular bit of legalese. Can you translate?

Gender reassignment exceptions are just there alongside sex exceptions with no additional bar and no distinction between those with a GRC and those without one.

But there is a distinction between those with a GRC and those without. A man who identifies as a woman but has no GRC is a man with the protected characteristic of gender reassignment. A man who identifies as a woman and has a GRC is a woman with the protected characteristic of gender reassignment.

So in theory, and in situations where ID has to be shown, the single sex exemptions work differently depending on whether someone has a GRC or not. A man who identifies as a woman but has no GRC can be excluded from single sex services for women because he is a man (single sex exemption). A male-born person who has obtained a GRC cannot be excluded on the grounds of sex, because legally this person is a woman. Such a person can only be excluded on the grounds of gender reassignment if it is a 'proportionate means of achieving a legitimate aim'.

So yes, I see the single sex exemptions and gender reassignment exemptions as separate.

Single sex exemptions can be used to exclude all men, however they identify, from female spaces if they have 'male' on their birth certificate.

The gender reassignment exemption is required if a person who was registered as male at birth but now has a birth certificate which says 'female' is to be excluded from women-only spaces or services.

In practice, and in situations in which no ID is shown, the gender reassignment exemption could be used instead of the single sex exemption for a man who identifies as a woman regardless of whether or not he has a GRC.

An example is in the new prison policy for transgender prisoners, who are now sent initially to the prison which is appropriate for their legally recognised sex. So a male with a GRC automatically goes to a women's prison, while a man who identifies as a woman (no GRC) goes to a men's prison. They have chosen not to apply the gender reassignment exemption, but are using the single sex exemption (separate services for men and women).

Thanks Pencils

LibDems been taking donations fro ferrings since 2014 it in their accounts

I can't think of any circumstances where paras 26 or 27 would be applicable but 28 would not be applicable.

I'm not sure what you mean by this. Paras 26 and 27 are about single sex services (changing rooms, hospital wards etc). Para 28 is about excluding transgender people from the space for their legally recognised sex, isn't it? In the prison service, the single sex exemption has been applied, but not the gender reassignment exemption. Lots of shops are doing the same (you can't ask for ID so if a man says he's a woman you have to assume he has a GRC so can only be excluded on the basis of gender reassignment).

I have to admit that I don't understand that particular bit of legalese. Can you translate?

It means terms and conditions apply. Section 9 of the GRA says a tw with a GRC is legally a woman 'for all purposes' but subsection 3 says - except for all the exceptions in the GRA and any exceptions in any other legislation.

'provision made by this Act' includes stuff like sport, parenthood, peerages and a couple of others. These are the exceptions built into the GRA itself.

'or any other enactment' includes stuff like EA exceptions. We could also theoretically amend laws on H&S, safeguarding, criminal justice etc. with further exceptions where needed.

'or any subordinate legislation.' means statutory instruments - e.g. prison rules or EHRC Codes of Practice. What the government reckons the law means in practice. SIs are not the law and can be challenged by judicial review.

Section 9 of the GRA says a tw with a GRC is legally a woman 'for all purposes' but subsection 3 says - except for all the exceptions in the GRA and any exceptions in any other legislation.

So for the purposes of the Equality Act, what is the sex of a man who has a GRC and a new birth certificate which says 'female'?

A man who identifies as a woman but has no GRC can be excluded from single sex services for women because he is a man (single sex exemption).

Only if excluding men at all is a proportionate means of achieving a legitimate aim. There is the same bar for using a single sex exception as there is for using a gender reassignment exception.

I can't think of any circumstances in which it would be a proportionate means of achieving a legitimate aim to exclude men, but not to exclude tw. Because when we use these exceptions it's always about bodies, not how someone identifies or dresses or otherwise presents themself. If we can't justify keeping tw out it's hard to see how we justify keeping men out at all.

I know that in practice lots of orgs are using a single sex exception but refusing to use a gender reassignment exception. This is why we need case law. What is their legitimate aim? How is their policy a proportionate means of achieving it? What justification do they have left for single sex in the first place?

I've got to say, I thought the shout out to the 'small group of feminists' was a marvellous back-handed compliment.

Yep, Sal, here we are, teeny group of annoying women that no one agrees with... and we've managed to finally get some traction on the issue you lot were hoping would be quietly shuffled through without fuss.

Ha-fucking-ha.

OldCrone, I'm really enjoying this discussion but I need to go to bed.

Why does anyone watch itv on a morning.
Cannot think of a more odious selection of people than Morgan, Reid, Schofield and Willoughby

So for the purposes of the Equality Act, what is the sex of a man who has a GRC and a new birth certificate which says 'female'?

Female but this doesn't affect how the gender reassignment exceptions work (in theory).

E.g. Schedule 3 part 7 para 28 says it's not unlawful discrimination to exclude a person with the PC of gender reassignment because of anything done in relation to single sex or separate sex services. There's no need to work out the person's legal sex or whether the EA changes this in certain circumstances.

Really bedtime now