No to self-ID, so when does a man 'become' a transwoman / woman?

[Shedbuilder]

And what rights can they claim before they have a GRC?

Liz Truss has clearly said that that self-ID is not being introduced. So at what point can a man/ woman legally assert that they have changed sex? (Yes, I know people can't change sex but unfortunately the GRA has created the legal fiction that they can)

Are there any lawyers or clever people out there who can advise?

@jdoejnr1

The other issue is that even once you've gotten to the bottom of the OPs question how do you prove/disprove someone's sex? You can't ask for a copy of their birth certificate or ask them to prove they are male/female which almost makes safeguards pointless.

A service provider can ask for proof of id, proof of age and proof of sex. Usually a passport or driver's license may suffice, but asking for a birth certificate is not a criminal offence.

Obviously it needs to be appropriate to the situation. That is, it needs to be a situation where you need to prove some aspect of your identity.

In this case though I would turn this person down by referring to the sex-based exemption that applies to the service. As long as the service has always excluded adult males from accessing the female-only part (in case it offer other types of services, too) and has a legitimate reason, they are legally entitled to do so.

Letting this person in on the other hand will create a precedent that may have a detrimental impact on their ability to exclude all males in the future.

(Letting a male in who remains legally male means you might be unlawfully discriminating against all other males, regardless of how they identify, if you exclude them. No one has tested this in court yet, but the Equality Act makes it quite clear that the only way you can lawfully discriminate against someone on the basis of their sex is if the sex-based exemptions have been used. And they must be used consistently.)

There is not much case law and the EHRC guidance is bad. But the thing to remember is that each protected characteristic works seperately. So the comparator for someone with the PC "gender reassignment* is someone without that PC.

Most services are not single sex. So primarily a trans person should not be refused service in a restaurant or entry to a nightclub or a train ticket etc (or treated badly in those services) and they shouldn't lose their job -- because they are trans.

There are limited situations where sex discrimination is allowed and there you can argue that this means sex. Eg in a woman's service - a man wouldn't be allowed in. Say the next day he announced he is deciding to transition he'd be covered by "GR" but still you could say no -- for the same reason as before.

Your friend could hold her nerve with legal advice -- tell her to get in touch if she wants connecting to some.

Your friend could hold her nerve with legal advice

This.

It's legal.

If the trans person actually takes it to the wire and sues, it will result in the fastest ever successful crowdfunder in history.

Also worth considering how would your friends group treat a woman if they were threatening and aggressive. You could argue irrelevant of the persons sex/gender, they should be excluded on behaviour grounds and that is exactly how a woman would be treated, so you are treating them as a woman.

Thanks again to all who have contributed to this thread.

Maya, thank you for you offer. My friend has been reading the thread and last night she drafted a response quoting the Equality Act and incoporating key phrases from this thread. I've seen it and it's very clear. She's been lucky that till now no men have asked to join the support groups (unless of course they passed so well that no one noticed) and it's not something she considered.

Now you've all explained it it makes sense and I certainly feel much more confident that I know how the law works. Whether it will put an end to this individual's attempt to join the group I don't know, but it'll certainly make it easier to counter the arguments.

Datun, I think the big fear is that the trans person will move from targeting X, the woman who administers and facilitates the service, to the funders. If that happens and the funders cave then X will be out of a part-time job. She's sure that many of the women who use the service will just disappear and go unsupported.

@CharlieParley I never said it would be a criminal offence but it could be discriminatory to do do. Especially as I assume they don't ask everyone else for proof. I'm not saying its morally right but something for people to be aware of.

It is interesting to hear the legal discussion at the moment from the US perspective. The “switching” of the correct “Same sex” comparator Really does mess things up. I suppose, the argument is, how does one protect passing trans people from being persecuted if “outed”. Eg i shouldn’t be able to evict/fire someone if I find out after the fact they are trans. The idea being that knowing someone is actually a trans woman rather than biologically female Shouldn't be used to discriminate. But then, having a GRA has nothing to do with how well you pass...

From over on this side of the pond, the recent SCOTUS case, if you read the majority opinion, clearly uses the same sex as the comparator for the trans woman. “But for being female, the trans woman would not have been fired”. That is to say, Firing was unjustified because the TW in question was Male (But wearing the female uniform), and sex is a protected characteristic. So far so good.

The proposed US Equality Act on the other hand is apparently a mess as no definitions are given for sex, gender, sexual orientation, or gender identity - they are entirely conflated throughout. Check out CallieBurt.org for a legal analysis

@Shedbuilder

Datun, I think the big fear is that the trans person will move from targeting X, the woman who administers and facilitates the service, to the funders. If that happens and the funders cave then X will be out of a part-time job. She's sure that many of the women who use the service will just disappear and go unsupported.

Might it be possible for her to pre empt any escalation of complaints by approaching the trustees/funders with a summary of the legal situation, a summary of the benefits to the current service users of a single sex facility and point out that (if registered) the charity could be working against its stated purpose with the Charity Commission. If you are the first person they hear from re this it could be helpful?

@Shedbuilder

Datun, I think the big fear is that the trans person will move from targeting X, the woman who administers and facilitates the service, to the funders. If that happens and the funders cave then X will be out of a part-time job. She's sure that many of the women who use the service will just disappear and go unsupported.

It's an awful situation for her to be in, I agree. And no-one would blame her for being worried.

Interestingly, fair play for women and keep prisons single sex are helping a woman launch a judicial review based on the fact that it's discriminatory towards women to include male prisoners in their prison.

It my understanding that it's put women in danger, where it wouldn't have put man in the same danger and therefore is indirectly discriminatory, as they end up being treated differently.

I can't see why a women's support centre wouldn't fit the same criteria.

It's putting those women, who are vulnerable, in more danger than it would men, in the same circumstances. Because women are more likely to be raped, attacked, and intimidated, than men.

I'm just spitballing, but it looks the same to me?

Which might help, if the funders of the centre are being targeted next.

@Shedbuilder the case about the comparator being male is Green v SSOJ, para 66 www.google.co.uk/amp/s/www.casemine.com/judgement/uk/5a8ff7bb60d03e7f57eb1a1f/amp

Feel free to PM if you want an eye cast over the draft letter or want to discuss.

When they have the op.

I would be male if born with a penis, female otherwise. There's a leap from saying a male in a skirt and a female in trousers are doing nothing wrong, to demanding females must be put at risk of rape or threat or fear by penis owners, or even by men whose penises have been surgically altered. A fox may wear a chicken outfit, or even have feathers implanted on his body, and his intentions may be to eat a chicken or to attempt to 'be' one, but either way, it makes no difference to the hens, who will still be afraid when he is inside their chicken coop.

(His wish might, instead, be to dress as Napoleon, or to go further and 'be' Napoleon by having an arm and an eye surgically removed, but it won't make him Napoleon, and, if she were alive, it wouldn't entitle him to get into Josephine's bedroom)

@caringcarer

When they have the op.

What op is that? There is to date no medical intervention available on this planet that turns a male into a female person and vice versa.

I know a man (who looks indistinguishable from any other straight man with a 5 o'clock shadow) who identifyies as a "trans girl" and enters women's toilets at his work and in public. He doesn't have a GRC but he quickly had his passport changed to state he is "Female". As far as I'm aware this gives no legal rights to use women's services but be aware "female" ID documents do not mean they possess a GRC. A doctor's letter and a bill with the girly name on is what is needed to change the sex on most ID documents in the UK. Of course even a GRC gives no legal right to access women only support services but it's rare that they actually have one when it's so easy to change ID without one.

... I know a man (who looks indistinguishable from any other straight man with a 5 o'clock shadow) who identifyies as a "trans girl" and enters women's toilets at his work and in public.

Is he attracted to men or women? Is he in a relationship?

I hadn't realised that it was so easy to change the sex indicator on documents. Surely that needs to be tightened? You would have thought there'd be issues with national security.

Thanks for continuing helpful suggestions. My contact has already had a word with one of the sources of funding and they understand that the service needs to be women-only. The other funder does have inclusivity as a main criterion and she foresees more of an issue there.

I don't want to talk this situation up: it's not a women's support centre or anything as large or formal as that. My friend is a counsellor and psychotherapist who used to volunteer with a self-help group for women, acting as facilitator as required. I won't say more about the specific issue that unites those involved as that might be outing. When the group began to get regular referrals from GPs and other services in the area they decided to apply for funding and my contact was employed for a few hours each week to facilitate and administer and, more recently, to provide some low-cost or free one-to-one counselling.

It's small, probably no more than 30 women regularly involved at any one time. If they lose funding they may be in a position to carry on renting a space for meetings (when meetings are allowed again) and my friend would probably continue facilitating on a voluntary basis. Now you've armed her with the necessary legal info she feels confident about saying no to anyone who isn't a woman.

She's scared of exposing herself publicly because int he current climate it could cost her her accreditation. She's asked me to convey her gratitude to those who have offered such helpful advice and I wouldn't be surprised if she's now a signed-up member of Mumsnet.

While it is great to be inclusive, I am afraid that these days when I hear or read 'inclusive' a get a subtext in my head of 'to men that want to muscle in on spaces from which they are excluded on the basis of their SEX'

Posie Parker's epic rant from a year or two back made the point that by being inclusive, organisations are indirectly excluding women and girls who cannot be in spaces containing men for whatever reason

Yes, I think an awful lot of women, both in the voluntary and private sector, have learned that 'inclusive' is a double-edged sword.

@Whatsnewpussyhat

This should never ever have even been an issue because no adult male born person ever requires female sex based rights, regardless of any chosen identity because they are based on our biology and reproductive systems.

The comparator should always be other males. GRC or not.

They have the protection of gender reassignment, which prevents them being treated less favourably or discriminated against compared to other males.

To say no transmen in women's toilets would be discrimination against both sex and gender reassignment.
Same with transwomen using male facilities.
Not the other way round. They seem to like ignoring/re writing the part that we are allowed to discriminate against anyone of the male sex in female only spaces and sports.

I think you will find that the Equality Act 2010 prohibits discrimination against people with the protected characteristic of gender reassignment in the provision of separate and single-sex services but includes an exception that service providers can use in exceptional circumstances.

Key word being exceptional. So women's refuge where vulnerable women can be reasonably argued; likewise open changing facilities.

Very unlikely to argue exceptional circumstances for toilets or changing rooms with closed cubicles for instance as the advice currently stands. So challenging a transwoman in the john lewis bathroom is probably not a good idea, as they could go after you.

The problem also is in identifying who is legal and who is not? A trans person can get a drivers licence and passport both identifying themselves as female or male, on application. They do not need a GRA to do so. So the only way you can check, is either a GRA or birth certificate - or if they disclose they are not legally female/male (ie. not holding a GRA). Then of course they use the protected characteristic of gender reassignment. It's super complex for anyone wishing to challenge someone - quite a minefield.....

I think you will find that the Equality Act 2010 prohibits discrimination against people with the protected characteristic of gender reassignment in the provision of separate and single-sex services but includes an exception that service providers can use in exceptional circumstances.

Key word being exceptional. So women's refuge where vulnerable women can be reasonably argued; likewise open changing facilities.

This is incorrect. Neither the Equality Act nor the Explanatory Notes use the word exceptional or demand exceptional circumstances in reference to applying the sex-based exemptions.

The phrase exceptional circumstances is used only once in the entire text of the law, and that is in Schedule 3, Part 2 Education, Section 7 (c).

The word exceptional is used two more times in the Act, in relation to admission policies in school and further and higher education.

The Explanatory Notes, which courts can draw on to discern government intent in interpreting a law, again use the word exceptional only in relation to admission policies at school and in further and higher education.

This wording was merely the EHRC's own interpretation of the Act. It cannot therefore be the key word in relation to the sex-based exemptions.

It's super complex for anyone wishing to challenge someone - quite a minefield.....

There are a number of clear cut, and well defined circumstances where sex discrimination against a member of the opposite sex is lawful. The Equality Act itself does not make this at all complex. In practice, it is difficult only because from the beginning the sex-based exemptions contained in the Equality Act were misinterpreted by the very body set up to enforce compliance with its provisions.

Also, the protected characteristic of gender reassignment does not convey the right to use single-sex provisions, regardless of whether a person has legally changed sex or not. Just as having the protected characteristic of religion does not allow a person to demand access to provisions made specifically for those with the protected characteristic of disability. Or for someone with the protected characteristic of sexuality to demand access to provisions made for women who have the protected characteristic of pregnancy and maternity.

Each protected characteristic allows separate provisions to be made for the benefit of the protected group that mean anyone who does not share that protected characteristic can be lawfully excluded.

@CharlieParley

I think you will find that the Equality Act 2010 prohibits discrimination against people with the protected characteristic of gender reassignment in the provision of separate and single-sex services but includes an exception that service providers can use in exceptional circumstances.

Key word being exceptional. So women's refuge where vulnerable women can be reasonably argued; likewise open changing facilities.

This is incorrect. Neither the Equality Act nor the Explanatory Notes use the word exceptional or demand exceptional circumstances in reference to applying the sex-based exemptions.

The phrase exceptional circumstances is used only once in the entire text of the law, and that is in Schedule 3, Part 2 Education, Section 7 (c).

The word exceptional is used two more times in the Act, in relation to admission policies in school and further and higher education.

The Explanatory Notes, which courts can draw on to discern government intent in interpreting a law, again use the word exceptional only in relation to admission policies at school and in further and higher education.

This wording was merely the EHRC's own interpretation of the Act. It cannot therefore be the key word in relation to the sex-based exemptions.

It's super complex for anyone wishing to challenge someone - quite a minefield.....

There are a number of clear cut, and well defined circumstances where sex discrimination against a member of the opposite sex is lawful. The Equality Act itself does not make this at all complex. In practice, it is difficult only because from the beginning the sex-based exemptions contained in the Equality Act were misinterpreted by the very body set up to enforce compliance with its provisions.

Also, the protected characteristic of gender reassignment does not convey the right to use single-sex provisions, regardless of whether a person has legally changed sex or not. Just as having the protected characteristic of religion does not allow a person to demand access to provisions made specifically for those with the protected characteristic of disability. Or for someone with the protected characteristic of sexuality to demand access to provisions made for women who have the protected characteristic of pregnancy and maternity.

Each protected characteristic allows separate provisions to be made for the benefit of the protected group that mean anyone who does not share that protected characteristic can be lawfully excluded.

That's fine. But how does that apply in practice, if I can't challenge someone I think doesn't fit in the bathroom? Check their licence or passport? No, not reliable. And they may refuse to show it - even if you raise it with whatever building authority you are in.

I assume trans males dont carry around their GRA certificate for inspection.

I think we should all be able to challenge anyone who looks odd in the bathroom - most people would be happy to oblige for the overall protection and safety of the space.

Just want to make sure we are legally safe when doing such a challenge.

Or just let us pee in peace?

Or males could let women do so?