The GRA, the Equality Act, and recent government announcement

[BlueRaincoat1]

I am firmly on the gender critical side of the conversation regarding the conflict between the relevant importance of sex and gender when it comes to balancing the rights of women, children and trans people.

I wanted to specificallydiscuss some of the conflicting points between the GRA and Equality Act, as there are obviously some incredibly knowledgeable people in these boards.

I have been following the discussions on Twitter and here on Mumsnet following the Sunday Time story about the government decision not to move to a system of 'Self ID' (or to change the exceptions in the Equality Act which allow same sex spaces to exclude transgender people in certain circumstances, where it is reasonable and proportionate to do so).

I don't think it is helpful that this was leaked by the government without a clear position being formalised and set out - it doesn't help interested parties understand where they stand.

The story said "new protections will be offered to safeguard female-only spaces, including refuges and public lavatories, to stop them being used by those with male anatomy." I'm not sure that this is a helpful statement when there is no context for how this may be implemented (particularly in respect of public toilets). Also this only refers to public toilets - is that distinct from shared toilet facilities in privately ownedbuildings, for example work places, theatres etc? Sorry if that is a stupid questions - it perhaps does mean all toilets not in a private residence.

I have seen quite a few people on Twitter raise the point that many transgender people do use toilet facilities of their new gender, rather than their biological sex, and have done so for a long time - whether this person has physically transitioned or not. They question how any law prohibiting a person with male genitals would be policed, and I think that is a reasonable question as a law which is broadly unenforceable or cannot be enforced without causing considerable indignity is not likely to be a good law.

While I'm delighted to see the end of proposed self-id, and any clamp down on 'quack' doctors, I worry that a 'toilet law' is less desirable.

I think the legal position is really tricky as it stands, but I am not sure I have a clear understanding of how it works.

Apersonhas the right not to be discriminated against on the basis of gender reassignment whether they have a GRC or not. The Equality Act prohibits discrimination against a person where that person "isproposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex".

Again this is a point I have seen made by TRAs (I am not using this phrase TRA pejoratively, but just to describepeople on that side of theconversation), and they are correct about this. I think they have been making the point that it is not 'unlawful' for a transgender person (who can be a person who has only recently decided to transition and therefore do not yet 'present' well, take hormones, or have surgery) to use the toilets they feel correspond to their gender.

Schedule 3, section 27 (6) of the Equality Act addresses exceptions to the right not to be discriminatedagainst on the basis of sex, relating to the provision of single sex services. Is this likely to be the relevant provision in relation to toilets?
It says that a person may bediscriminated against on the basis of their sex when a single-sex service is being provided, when :

(a)the service is provided for, or is likely to be used by, two or more persons at the same time, and(b)the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex .

Section 28 confirms that a statusof gender reassignment does not mean that a person of (for example) male sex is of female sex for the purpose of the provision of single sex services.

Does anyone know how the legislation actually works in practice?
Say for example a trans woman was using a public toilet facility in a council building. Lets say they dont have GRC and have not had any gender reassignment surgery but are dressed in femaleclothing, and are otherwisepresenting generally as a woman. They are minding their own business.

A woman wants to use the facility. She is deeply uncomfortable that a person whoshe can clearly perceive as male is in the bathroom. I am not saying this is an unreasonableposition for her to have.
She says to the trans woman that she is really unhappy about their presence in the womens toilets, which makes the transwomanembarrassed and upset. She goes and complains about the presence of a transgender person in the toilet. The transwoman also complains about the woman making her feel bad for using the toilet.

In the absence of a 'third space gender neutral' toilet provision, is there an established correct position here as to where the legal rights lie?

Their treatment should be the same as if they did not have gender reassignment, that is, the same as if they were still presenting as their birth sex. This is critical, often misunderstood and frequently misrepresented. A male-to-female transitioner does not access the single-sex protections of females. They do not become female for the purposes of the EA2010. The rights of women and transgender people are compared here. To understand how we have reached this point, read our explanation, part one and part two.

fairplayforwomen.com/resources/law/

It's not illegal for a bloke to use the women's loos and it's not illegal for me, a woman to use the men's loos.

It's a custom not a law. So basically staff and other customers can say "excuse me, the men's are over there" and it isn't really a legal issue.

Transwomen have pretty much always used the women's loo and changing room.

The problem when it comes to the law and the equality act is more to do with refuges, sports, prisons etc.

The toilet issue is a distraction from weightier issues such as prisons, refuges or political representation. Which is why the trans activists love talking about toilets.

Are Fair Play for Women considering doing a ‘Myths about the GRA’ factsheet for MPs? Think it could be useful...

Mhairi Black MP could use such a thing. Currently tweeting that

‘ Trans people already access public toilets and changing rooms under self ID. In fact, they HAVE to do that for at least two years to obtain a Gender Recognition Certificate. GRA reform is an administrative change and anyone who tells you otherwise is being dishonest.’

mobile.twitter.com/MhairiBlack/status/1272093437731446786

Purest bull, using toilets and changing rooms of the opposite sex has never been a requirement of getting a GRC. Lol at ‘dishonest’

This is easily googled
www.gov.uk/apply-gender-recognition-certificate/how-to-apply

‘As part of your application, you must provide evidence to demonstrate that you have lived full time in your acquired gender for at least two years (up to the date of your application).
The evidence can take the form of letters from official documents such as a passport or driving licence, letters or documents from official, professional or business organisations or utility bills.’

That’s odd- it’s a paper exercise and says nothing about men needing to get into women’s toilets or changing rooms at all. Regardless of how they identify.

Thank you for the replies.

@dayoftheclownfish and @Gncq yes I agree that the issue of toilets is a less weighty concern than the issues of refuges, sports, political representation, prisons etc.
This is why I think it was unhelpful for it to form part of this 'leaked' position without clarification.

@FantaOra Thanks very much for the link, lots of interesting information there.

I appreciate that using there may be no law about using the toilets of the opposing sex - although there is obviously a convention.

I assume that there is also no law which puts an obligation on organisation who provide toilet facilities to provide separate facilities for men and women? Is that also convention as opposed to a legal requirement? I expect it is, as there are many cafes etc that just have one toilet for everyone.

While there may not be a right to a unisex toilet, there is a right not to be unlawfully discriminated against.

So if the Council in my example sided with the trans woman and said to the woman who was upset that transwomen were fully allowed to use the facilities, could a woman bring a claim under the Equality Act because of the Council's failure to ensure that the toilet labelled 'Women' was not exclusively for women, and that this caused her to be distressed?

Or if the Council sided with the woman and told the transwoman not to use the toilet again, would the trans woman be able to pursue a claim under the Equality Act that they were being treated unfairly?

Or does neither person have a claim?

Sorry that should have said:
"While there may not be a right to a SINGLE SEX toilet, there is a right not to be unlawfully discriminated against."

I think there are buildings regulations on this but I am not sure.

I raised this at work, a trans inclusion policy that tells cross dressing men they can use female toilets is compelling me to take part in their sexualised behaviour and I consider that to be the company forcing sexual harrrasment on me. I discussed it with our Equality solicitor and QC who were shocked that the employer was telling men they could cross dress for erotic purposes at work. So it's very shaky ground, this whole thing and I am looking forward to the new equality act guidance to get this pushed back and Stonewall need their wings clipped properly on this.

Historically I've heard reports that gender doctors tell men to use women's facilities to see if they can cope with the whole charade for two years or not.

Thanks for the tip about building regualtions. So the internet tells me that

"The Workplace (Health, Safety and Welfare) Regulations 1992 state under Regulation 20 that employers need to provide separate rooms containing toilets for men and women.

Toilets used by women must also be provided with facilities for disposing of sanitary towels."

So that's about employers. I haven't found about general provision yet.

Fanta that makes sense that they would say that to their patients. But was just trying to rebut Black’s implication that if you don’t use women’s toilets for years (as a male born person) then obtaining a GRC will be closed to you.. which is not the case at all.

Yes the GRA thing is assumed. There is no reason they have to use women's toilets as part of their "living as a woman" unless that's encouraged. If it isn't encouraged or possible, then they don't need to do it.

I found a guidance document produced in 2015 by the Government Equalities Office (again relating only to workplaces) which says

"Use of facilities – a trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full time basis they should be afforded the right to use the facilities appropriate to the acquired gender role. Employers should
avoid discriminating against anyone with the protected characteristic of ‘gender reassignment’. Where employers already offer gender-neutral toilets and changing facilities, the risk of creating a barrier for transgender people is alleviated."

Isn't it bizarre that no thought or reference is given to the women who use those toilets day in and day out! Or any conflict there may be in that respect.

I found a guidance document produced in 2015 by the Government Equalities Office (again relating only to workplaces) which says

It was drawn up in conjunction with Gendered Intelligence and other trans lobby groups.

I don’t think ‘Male anatomy’ is a reference to genitalia, merely a clumsy attempt at polite euphemism, a la ‘male bodied’. What they mean is that ‘Male’ people’ also known as ‘men’ and/or ‘transwomen’ will be more easily excluded from female spaces.

The penis part is neither here nor there. After all, a male soldier who loses his penis in a land mine incident doesn’t become female.

Yes, the Government Equalities Office has been a major part of the misinformation campaign.

There's going to be tantrums once new guidance is published, I noted the bonkers quote worthy Bergdorf tweeting at the weekend that dropping the GRA reform was racist...

@Dudu ah yes, I expect you are right! That makes much more sense, I should have realised. Goes to show how difficult it becomes to understand basic English when the meaning of words gets so convoluted...

Over the last couple of years we've had to contort the language mind bogglingly to avoid saying men and male. I've given up now and just say it as it is.

So if the government is going to produce 'new safeguards' it may be contrary to their own precious guidance? Perhaps they'll at least consider women in the next version!

I don’t think ‘Male anatomy’ is a reference to genitalia, merely a clumsy attempt at polite euphemism, a la ‘male bodied’. What they mean is that ‘Male’ people’ also known as ‘men’ and/or ‘transwomen’ will be more easily excluded from female spaces.

I hope that you are right & agree this should be the case. Unfortunately there are a significant number of people with influence who believe that a man who has his penis surgically inverted and/or breast implants is no longer regarded as male bodied.

After all, a male soldier who loses his penis in a land mine incident doesn’t become female.

Although I've known male soldiers who thought transition was a good way of dealing with this sort of unfortunate accident. Some people honestly believe that if you can't be a manly-man then womanface is a sort of consolation prize.

I have recently read two really helpful legal papers/blogs which address some of the issues raised here, so I thought I would share them.

This one by discrimination solicitor Audrey Ludwig:
womansplaceuk.org/2020/07/02/legally-this-is-not-a-trans-rights-issue-its-a-sex-rights-issue-a-blog-about-boxes-audrey-ludwig/

and this one by Solicitor Rebecca Bull:

mbmpolicy.files.wordpress.com/2020/02/impact-of-gender-recognition-on-sex-based-rights.-r-bull-11-feb-2020.pdf

Audrey Ludwig is really good at explaining how allowing Self-ID under the GRA might effect interpretation of the exemptions under the EqA - even though those exemptions can apply even when a person has a GRC - taking into account case law about how this has been interpreted to date.

I'm struggling to see how this is going to go. Isn't everyone now signed up to TWAW? If so how can they possibly protect women only space?
If not are they going to concur that TWAnW? I darent even spell it out. If so that's huge and will not go down well.

And if TWAW then surely TMAM (although I suspect that will be resisted vigorously). And TM, as men, as whoever they say they are, can inherit titles.
Surely?
No?
Oh here we go again, lie down women and be trampled on.

how any law prohibiting a person with male genitals would be policed, and I think that is a reasonable question as a law which is broadly unenforceable or cannot be enforced without causing considerable indignity is not likely to be a good law.

From my point of view, with the law as it currently stands if I go into a public toilet and there is a man there (a man-man, beard, jeans, short haired man) then I can say hey, this is the ladies and I can call a member of staff for help to remove him.

If the law changes to anyone who says they are a woman is a woman, and I encounter a man in a public toilet I’ll think twice before confronting him in case he says he ‘identifies as a woman’ staff won’t intervene to help me because they may lose their job and the company won’t help because they may get bad publicity/court action for transphobia.

I said it on another thread but I used to work for a charity helping people who’d recently left prison and some of the people I met would have no qualms about using a loophole in the law to enter female toilets to assault, intimidate or rob women.