Sex based rights in the UK?

[RobinMoiraWhite]

An interesting perspective.

rgellman.medium.com/there-is-no-such-thing-as-sex-based-rights-in-the-uk-140554a2c42c

tm;dr

(too mannish; didn't read)

Nobody has any legal right to demand that there be a single-sex space.

Except that's not true. You have the right to a single sex space at work to breastfeed or express breast milk. It cannot be a toilet or a public space.

The article writer is misrepresenting the equality act.

The protected characteristic of gender reassignment prevents discrimination against someone proposing to under go 'gender reassignment' where the comparator is someone of the same sex. The comparator isn't someone of the opposite sex (unless that person has a GRC, which is unlikely because of the number have been awarded).

In fact, if a service provider provides a single sex female space and allows transwomen in, then they could be said to be discriminating against other men.

It would be interesting to challenge this in court.

Terrible helpful to give the women here an opportunity to offer a comprehensive rebuttal to the steaming turds that pass as the best line of argument from those who can't take a woman's no for an answer.

The protected characteristic of gender reassignment prevents discrimination against someone proposing to under go 'gender reassignment' where the comparator is someone of the same sex

Where do you get that from? I don't think that's the case at all. The comparator is a person who is not transgender. E.g at a job interview where candidates are a natal man, a natal woman and a transgender woman. If the transgender woman is the best suited but gets passed over because she is transgender the discrimination has nothing to do with the other candidates' sex. The same would apply if a trans man were passed over.

Your application of how the protected characteristic works would make it largely ineffective.

This perspective isn't very interesting because the writer lacks a basic grasp of both specific legislation and the workings of equality and human rights law.

True. But silly claims like the OP's are actually quite useful in demonstrating how weak the trans lobby is. Yes, it's backed by big money, big drug companies and big organisations. But its arguments can be pushed over with one finger.

Of course its trans backers will never give up, and the drug companies will hold on as long as possible to this lucrative market.

But the other major supporters, which rely to various degrees on public opinion, will reverse at top speed when enough people say No.

E.g at a job interview where candidates are a natal man, a natal woman and a transgender woman. If the transgender woman is the best suited but gets passed over because she is transgender the discrimination has nothing to do with the other candidates' sex.

I see what you mean, but I think that in that situation the comparator works as in the same way as the precedent in the court case that set it. Has the candidate been treated less favourably than their comparator (the male candidate)? Yes, unquestionably, because of their transgender status. Discrimination.

In situations such as should a male person be able to identify into a female prison? The comparator is another male prisoner. Is the transgender male person being treated less favourably than any other male would be because of their transgenderism? No, they are being treated equally to any other male person.

Was trying to find the court case: sorry, I can't track it down. Someone more clever than me will remember. But the decision was that unless a GRC was held changing legal sex, the comparator to check for less favourable treatment was someone of the same sex.

@MichelleofzeResistance

E.g at a job interview where candidates are a natal man, a natal woman and a transgender woman. If the transgender woman is the best suited but gets passed over because she is transgender the discrimination has nothing to do with the other candidates' sex.

I see what you mean, but I think that in that situation the comparator works as in the same way as the precedent in the court case that set it. Has the candidate been treated less favourably than their comparator (the male candidate)? Yes, unquestionably, because of their transgender status. Discrimination.

In situations such as should a male person be able to identify into a female prison? The comparator is another male prisoner. Is the transgender male person being treated less favourably than any other male would be because of their transgenderism? No, they are being treated equally to any other male person.

Yes. That’s right. If the man would have got the job had he not been transgender, than that is discrimination on the basis of gender reassignment.

Regarding job discrimination, surely we accept that the examples given above demonstrate why trans people need to be included in anti-discrimination laws, but is this happening a lot? By and large, most jobs are not sex-specific so yes, it shouldn't matter if the applicant identifies with their birth sex or not. But there are jobs where sex matters to a client or patient. It's these types of instances where it feels like TRAs are trying to label anyone who requests a same-sex nurse, midwife, counsellor (for example) to be transphobic if they would not want a TW performing that service for a woman. It's a gross misappropriation of what the law was intended to do. Medical care should always put the patients needs first, and not be used to validate someone's illness.

And here's a situation where discrimination would be on the basis of sex.

Two people apply for a job. Both are (on paper) female. But one is literally female and the other is male and identifies as female. The employer rejects the female who looks as though she might one day get pregnant and need maternity leave. He employs the 'female' who he can plainly see might father a child but won't ever get pregnant.

This isn't covered under pregnancy and maternity discrimination. That doesn't apply to women who aren't pregnant yet.

The employer can claim he sees no distinction between the two women. If 'women' and 'female' are terms of identity not sex then there has been no discrimination against women, and no discrimination against females.

The only recourse is to defend the need to recognise that the two applicants are of the opposite sex, despite there being no legal evidence of this, and that sex is the characteristic that has been unlawfully discriminated against.

I'm not sure you're right.

The Debenham's case didn't go to a Tribunal but it was based on her being discriminated against because she was transgender- nothing to do with a man being preferred over her. It links to the NI legislation and I'm not immediately seeing it saying that the comparator is what you say it is.

The other case isn't considering whether the employee was treated worse than a male employee- the employee there was treated worse than employees of either sex whose status is the 3 letter word which is banned on here.

www.equalityni.org/Footer-Links/News/Individuals/Transgender-woman-settles-case-against-Debenhams

www.legislation.gov.uk/nisi/1976/1042/article/4A

www.pureemploymentlaw.co.uk/employee-awarded-47000-in-transgender-discrimination-case/

Barracker for clarity my last post was not replying to your post so my "I'm not sure you're right" comment isn't referring to your post.

I'm shaking with anger. The paragraph that accepts that a woman raped by a male should have the discretion to refuse intimate examination by someone they perceive as male but no right to exclude transwomen as a class from the role of rape examiner is horrific. So the woman trying to survive a rape is put in the position of declining an examination by a trans woman that she perceives as male (with a dose of implied transphobia) or having the examination and feeling further violated. Why the f should anyone be put in this position? Could transwomen not have the decency to excuse rape victims from the task of validating them and instead choose another career of the eleventy billion available. The tone of the article is sneering and mansplaining. And I'm livid. I'm only a baby GCer, I'd like to find a middle way, but this article is shameful.

For me - it's five wasted minutes of my life, as it's written by a misogynist child who substantiates nothing.

Ditto.

Barracker I would argue your example can still be argued on the basis of sex discrimination.

A company which consistently employs menopausal women, women and women over 40 who already have children and trans over woman under 30 simply because the former groups are unlikely to impossible to be claiming maternity rights isn't off the hook for a sex based discrimination claim.

On the other issue I'm struggling to see that a trans woman would not have a claim because she had been treated the same as a natal man. That makes gender reassignment protection meaningless.

[quote RobinMoiraWhite]An interesting perspective.

rgellman.medium.com/there-is-no-such-thing-as-sex-based-rights-in-the-uk-140554a2c42c[/quote]
Interesting in what way? How to demonstrate one's complete ignorance of women's history, feminism, the Equality Act, logic, women's needs or the etymology of the word used for a room?

I find the latter error by the author particularly amusing, as the name derives from something that had nothing whatsoever to do with the different status of the sexes and everything to do with the different status of the classes. Which involved excluding members on the basis of their rank, not sex, at court.

I mean honestly, if you're setting out to correct a misconception, you ought to be sure of the facts. What arrogance otherwise...

@RobinMoiraWhite

Robin, could you explain what the correct comparator is for a discrimination claim based on gender reassignment?

I thought it was being treated less favourably than a cis person of either natal sex (yes I know that word is banned but it's relevant here) but others are saying it's being treated less favourably than a person of the same biological sex.

Thanks

In at least one case the legal comparator has depended on the person's legal sex. Which is changed only in the case of a GRC being held.

A company which consistently employs menopausal women, women and women over 40 who already have children and trans over woman under 30 simply because the former groups are unlikely to impossible to be claiming maternity rights isn't off the hook for a sex based discrimination claim.

They are off the hook regardless of whether they employ a trans women if, according to the law, anyone can become pregnant regardless of sex.

If it’s impossible to judge sex, and sex has no consequences, how could the employer possibly know that these employees might become pregnant?

@Spero if you feel like chipping in here, your legal expertise may be helpful?

Ooh and @MurrayBlackburnMackenzie are also brilliant on this sort of thing while we're tagging helpful people.

[quote MichelleofzeResistance]@Spero if you feel like chipping in here, your legal expertise may be helpful?[/quote]
Sorry! I am not a discrimination/Equality Act specialist - what I know I have picked up over the years following people much more knowledgable than I - Audrey Ludwig on Twitter is very good as is the Legal Feminist site.

I am afraid I get lost quite easily when people start talking about comparators. The conflation between sex and gender and the misrepresentation of the law by even the EHRC has made if very difficult for many to feel confident they understand what is going on. We urgently need clear guidance.

And I'm livid. I'm only a baby GCer, I'd like to find a middle way, but this article is shameful.

I'm sure you might be starting to see that many transactivists are not interested in finding a middle way.