Government advice on single-sex spaces.

[InspiralCoalescenceRingdown]

Here's what I don't understand about the advice coming from the govt., GEO, etc., in regards to single-sex spaces and transgender people accessing them.

Let's say a service provider has a single-sex provision for women. That service provider allows transwomen (for simplicity, transwomen without GRCs) to access that service.

What happens if a man requests access to the service?

They don't have to be creepy or insincere.

And that comes down to whether or not you have to exclude male individuals on a case case basis, or whether you could just have a blanket policy. Obviously, a case by case basis would be next to impossible to enforce.

Can you imagine justifying the exclusion of a transwoman because they're 'insincere'? Or creepy?

The 'legitimate aim' should be whether or not the women have a justifiable reason to the single sex space/service. Not, yes they do, but only on the basis of whether or not there is a consensus about the creep factor.

@FemaleAndLearning

I'm confused. I thought you were only legally the opposite sex if you had a GRC? I know all other documents can be changed without a GRC, but you have to have a GRC to change your birth certificate?

That is correct. But I can't see why anyone would need a GRC once the birth certificate has been corrected and relevent authorities are aware.

This is the problem which needs addressing. There are exemptions in both the GRA and the Equality Act. It is occasionally necessary to know whether someone has a GRC.

The protected characteristic of Gender Reassignment rightly gives protection from discrimination (such as employment, bullying etc) to someone going through that process.

It does not automatically confer any rights based on the 'acquired sex' so a male going through Gender Reassignment does not get treated like a woman in all cases ie. when considering the Single sex exemptions. (there are many other situations where they will be treated as a woman) The single sex exemptions can apply whether or not a person has a GRC.

For discrimination purposes the comparator for a transwoman (who is legally and biologically male) is a male so if a man would not be allowed access to a female space or service based on their sex, that would almost always also apply to a transwoman.

The single sex exemptions are on a service/space type basis so the EA 2010 allows all males to be excluded from spaces like female wards, places where females may be in a state of undress (toilets, changing rooms) and from memory it is very clear on those exemptions.

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

The deliberate confusion has come partly from the EHRC/Stonewall misusing the pc of Gender Reass to confuse people. The faqs from the captured Government Equalities Office on the thread yesterday also muddy the waters somewhat.

I hope that Liz Truss will make her clarification to strengthen people's understanding of the EA 2010 soon but if not Ann Sinnott's case against the EHRC will.

@Ereshkigalangcleg

This is the problem which needs addressing. There are exemptions in both the GRA and the Equality Act. It is occasionally necessary to know whether someone has a GRC.

Nobody is required by law to produce their GRC. But certain authorities like the police could request information from the Gender Recognition Register.

That's why I said there is a problem. The law doesn't work. How can you enforce exemptions when a male wants to apply for a rape counsellor position which can be legally restricted to biological females only, as the EA says, if they have a birth certificate pretending they were born female? It needs to be resolved.

@gardenbird48

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

Or because they don't want to.

There's an interesting piece on this on Legal Feminist.

@Ereshkigalangcleg

That's why I said there is a problem. The law doesn't work. How can you enforce exemptions when a male wants to apply for a rape counsellor position which can be legally restricted to biological females only, as the EA says, if they have a birth certificate pretending they were born female? It needs to be resolved.

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Worth knowing that the Statutory Code of Conduct states (emphasis mine):

2.56 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (see paragraphs 2.17 to 2.27) or sexual orientation (see paragraphs 2.60 to 2.64)

[quote Gottalife]@gardenbird48

Not all organisations use the single sex exemptions but that is likely to be as a result of being wrongly advised.

Or because they don't want to.[/quote]
If you're segregating spaces for men and women, then you're segregating them by sex. You can only have segregated spaces if it's necessary to do so, ie it's to address an imbalance that would be there if you didn't because one sex wouldn't be able to access it on equal terms. Which means you are using the Equality Act single-sex exemptions.

If you're not using the EA single-sex exemptions then you don't have a legitimate basis for the segregation.

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Which is why it needs repealing. It's not necessary any longer, now we have pension parity and same-sex marriage.

There is no earthly way a birth certificate should be able to be falsified to state an untruth.

Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Indeed. The GRA is the only piece of legislation I know of which compels people to lie; i.e. it is an offence for anyone in a position of authority to reveal someone's true birth sex if it differs from what is (re)written on the birth certificate.

I believe the only exception is for a criminal investigation.

@WootMoggie

Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Indeed. The GRA is the only piece of legislation I know of which compels people to lie; i.e. it is an offence for anyone in a position of authority to reveal someone's true birth sex if it differs from what is (re)written on the birth certificate.

I believe the only exception is for a criminal investigation.

Even the Disclosure and Barring service will not provide any clue.

The Disclosure and Barring Service (DBS) offers a confidential checking service for transgender applicants in accordance with the Gender Recognition Act 2004. This is known as the sensitive applications route, and is available for all levels of DBS check - basic, standard and enhanced.

The sensitive applications route gives transgender applicants the choice not to have any gender or name information disclosed on their DBS certificate, that could reveal their previous identity.

aesopfable
My work are definitely seeing this as case law, but at least now they can't tag gender identity along with sex characteristics so I see that as a positive.

Ereshkigalangcleg
I agree it was disingenuos to frame this as a gender fluid harassment case when the individual is clearly MtF so gender reassignment would have sufficed. I'm not sure why the individual and their solicitor pursued it in this manner?

Datun
I agree the legal fiction needs to go. It's bad for women and girls and as others have said the loop hole with DBS is bad.

I'm not sure why the individual and their solicitor pursued it in this manner?

Trojan horse to bring non binary into "gender reassignment" which was clearly acknowledged by the government at the time of the Maria Miller enquiry as not covered by the EA, is my guess. I hope it gets challenged.

There is no earthly way a birth certificate should be able to be falsified to state an untruth.

Quite.

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

At last! You understand why it's unworkable and organisations for women who need single sex spaces clearly provided for within the law will need to know someone's GRC status.

@Datun

At last! Someone gets it. Apart from physical appearances ( prejudicial minefield there) there is no way of knowing.

Which is why it needs repealing. It's not necessary any longer, now we have pension parity and same-sex marriage.

There is no earthly way a birth certificate should be able to be falsified to state an untruth.

The government didn't choose to "falsify" the birth certificates. They were compelled to by the European Court of Human Rights. The GRA was just window dressing. The birth certificate ruling can't be reversed.

The government didn't choose to "falsify" the birth certificates. They were compelled to by the European Court of Human Rights. The GRA was just window dressing. The birth certificate ruling can't be reversed.

You should try reading that ruling again. They were compelled to find a way for two people of the same sex to marry, and they chose to do this by providing a way for one of them to falsify their birth record rather than allow same sex marriage.

There was another issue about not being 'outed' but this could have been complied with by issuing a new NI number and equalising the pension age. There was no requirement in the ECtHR ruling which said that the UK had to allow people to have a way to falsify their birth certificates.

Since we now have same-sex marriage and equal pension age for men and women, there is no longer any reason for the GRA to exist. It should be repealed.

The government didn't choose to "falsify" the birth certificates.

I love the way you don't think it's falsifying a historical document. You can't change your biological sex. A legal fiction does not mean a person actually is the opposite sex.

@Ereshkigalangcleg

The government didn't choose to "falsify" the birth certificates.

I love the way you don't think it's falsifying a historical document. You can't change your biological sex. A legal fiction does not mean a person actually is the opposite sex.

Stephen Whittle argues that the definition of 'sex' has changed with the GRA (at least I think that's what's being argued here).

www.socresonline.org.uk/12/1/whittle/whittle.pdf

@Datun

They don't have to be creepy or insincere.

And that comes down to whether or not you have to exclude male individuals on a case case basis, or whether you could just have a blanket policy. Obviously, a case by case basis would be next to impossible to enforce.

Can you imagine justifying the exclusion of a transwoman because they're 'insincere'? Or creepy?

The 'legitimate aim' should be whether or not the women have a justifiable reason to the single sex space/service. Not, yes they do, but only on the basis of whether or not there is a consensus about the creep factor.

Exactly. Otherwise all services are mixed sex in practice. From the point of view of the service provider and users any male accessing the service would have to be accepted as a woman until something bad happens and/or a woman voices her discomfort. How is that a single sex service, or fair on women?

Stephen Whittle argues that the definition of 'sex' has changed with the GRA (at least I think that's what's being argued here).

That was always the intent.
I can't remember where I saw it, but someone in official capacity was arguing that the GRA isn't badly written because they had been assured by the drafters that the obfuscation and conflation of sex and gender was intentional (!), or words to that effect. I think it was someone in Scottish govt.