Equality Act

[JoodyBlue]

Can any of you knowledgeable posters tell me whether or not the term gender reassignment in the Equality Act relates only to those who hold a GRC? I was under the impression that it does. I thought that this was the issue discussed around the self ID question. I also thought that this was the point that Ann Sinnott is raising in her case.

I am thrown due to workplace LGBT toolkit stating simply that gender reassignment is a protected charactertistic regardless of medical transition. That is all it says. No mention of GRC. I don't understand that this assertion is correct. But I am second guessing myself. I am not going to challenge them but I would like to know for my own sanity.

[WootMoggie]

My main point being, that I’d like to see case details where someone does have a GRC

[WootMoggie]

Yes I saw that - but that’s a ruling on someone without a GRC. I’m not a lawyer, but I would be surprised if judges comments about circumstances outside of the particular individuals involved in a case set any precedent.

[Aha85]

@WootMoggie

See para 68 of the Green judgment
"He is in a male prison and until there is a Gender Recognition Certificate, he remains male... Male to female transsexuals are not automatically entitled to the same treatment as women until they become women."

[eaglerising]

Oh, and we needs to ease 'society's discomfort' regarding seeing gender expressions that do not fit into traditional sexual stereotypes by making provisions to ensure gender expression is not discriminated against.

However, this needs to be done whilst maintaining singles sex protections and provisions. Since gender and sex are disconnected and distinctly different, as I said, there needs to be separate provision for each.

[eaglerising]

@Barracker

I am female. I am an adult. I am not being discriminated against if I am refused access to a service which is only provided to children.

We have (single sex) protections and provisions made for biologically female women under UK law.

Gender being disconnected from someone's sex means separate provisions and protections are required. The needs are separate and different.

Gender being essentially a social construct which is concerned with ideologies and how people think individually, I would say, requires provision which is centred in psychology. It should be aimed at easing the internal discomfort felt when someone feels their gender doesn't match their sex. Which is an unease over their body at even the cellular level (since sex in in our DNA). If we can ease that discomfort then there is much less of a problem. My thoughts are that, since gender expression can be pretty varied and fluid between the sexes, there is no real need to feel a mismatch. It is important this is tackled, for peace of mind, since we cannot eradicate or change our very DNA.

[Thelnebriati]

I think the confusion has arisen because many people dont realise they are not being discriminated against if they are refused access to an exception made for another group with a protected characteristic.

To make it clearer; your boss cannot sack you or otherwise discriminate against you if you announce you are proposing to change your legal gender from MTF.

But changing your legal gender does not give you the right to access a women only area.
Women only areas - toilets, changing rooms, showers, dormitories or a breast feeding room - are exceptions made to allow women to participate in society. Men are not discriminated against if they refused access to them.

[WootMoggie]

Aha85

Has this ever been tested though?
(the link you gave was a case without a GRC)

It would seem extraordinary to me that when the statutory guidance explicitly states "Sex does not include gender reassignment" that anyone could argue that such a stipulation is overridden by a law which predates it.

Surely otherwise the guidance should read "Sex does not include gender reassignment, except in the case of a GRC". But that's not what it says.

Do you have any case links?

[Sillydoggy]

Thanks aha85, I thought I was going mad there for a sec!

The thing to remember is that the exceptions in the Equality Act are areas where you are allowed to discriminate. For an exception to exist the discrimination has to exist.

[Aha85]

I'm afraid I think you've misunderstood how the Equality Act interacts with the Gender Recognition Act 2004 @WootMoggie

If a transwoman does not have a GRC, then legally their sex is male, although they will have the protected characteristic of gender reassignment (which amongst other things ensures that they cannot be fired just because they are trans). Their comparator is a man for claims under the Equality Act 2010 that require a comparator (eg indirect discrimination). See R (Green) v SSFJ www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

For transwomen who do have a GRC then the Gender Recognition Act 2004 provides that they will be treated as being of the female sex for most purposes (there are some exceptions listed in that Act and elsewhere). Their sex is therefore female for the purposes of the Equality Act and their comparator will be female. However, they can still be excluded from women only spaces/services notwithstanding that they are legally regarded as being female, if it is justified in accordance with the exemptions included in the Equality Act 2010.

So having the protected characteristic of gender reassignment does not mean that a transwoman should be treated legally as a woman, but a GRC - for most purposes - does.

[Ereshkigalangcleg]

What spaces? They can enter womens spaces lawfully and they wont get arrested for it.

They might not be arrested, but they might get told to leave, if the service provider is using the single sex exemption correctly.

[WootMoggie]

Sillydoggy

If the person has a GRC the comparator for discrimination is an actual woman as the GRC holder is legally female.

Not true. See the statutory guidance (attached).

This is an area where trans activists regularly lie - because they think people won't check up on it.

[Gottalife]

@Tibtom

Gottalife your rather ridiculous suggestion that we need to look down transwomen's boxers to determine if they are male transwomen rather than women is predicated upon the assumption that transwomen will enter spaces they are excluded from by law rather than assuming transwomen will respect the law and not try to enter these spaces.

What spaces? They can enter womens spaces lawfully and they wont get arrested for it. Unless behaving inapropriately but that is the same for anyone.

[Tibtom]

Gottalife your rather ridiculous suggestion that we need to look down transwomen's boxers to determine if they are male transwomen rather than women is predicated upon the assumption that transwomen will enter spaces they are excluded from by law rather than assuming transwomen will respect the law and not try to enter these spaces.

[Datun]

Asking for trouble

Might I suggest that you don't volunteer to do any PR for transgender people.

[Gottalife]

@Datun

*Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.*

There you go Gottalife.

The law, the actual law that trans rights organisations lobbied for, recognises that people can tell.

Bloody hell that's just asking for trouble if you get it wrong.

[Gottalife]

@Tibtom

Gottalife are you suggesting that transwomen are law breakers? I think the word 'transphobic' is thrown around indiscriminately but surely it is fitting for your accusation.

By not admitting to having their birth certificate altered maybe years ago? Certainly not.
No laws are broken. It is their private business. How is that transphobic?

[Tibtom]

Gottalife are you suggesting that transwomen are law breakers? I think the word 'transphobic' is thrown around indiscriminately but surely it is fitting for your accusation.

[Datun]

Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.

There you go Gottalife.

The law, the actual law that trans rights organisations lobbied for, recognises that people can tell.

[Barracker]

The GRA allows exclusion of male people with GRCs from female spaces.

Since the law understands that on paper, a male GRC holder and a female person are indistinguishable, the law must presume that male people holding GRCs can be excluded on some other basis, rather than paperwork.
It must therefore presume that the exclusion will happen purely on the basis that we know they are male.

Fortunately, that's a pretty easy judgement call, and doesn't require the presentation of paperwork or the "dropping of trousers" (wtf is wrong with you?)

Should the method of identifying and excluding male people from female spaces strike you as less than ideal, I'd suggest you lobby to repeal the GRA and revoke all legal fictions that allow people to misrepresent their sex and undo all suggestions that 'gender segregation' replace sex segregation.

After all, it's the misrepresentation of sex combined with an unwillingness to respect female boundaries and rights that is the problem here.

Fix those two factors, and fairness is restored.

[UppityPuppity]

All the Women's space police can do is ask for i.d. passport, driving licence, birth certificate or drop your trousers please. Good luck with that.

I obviously have very good luck - because I can tell those who are not women without reference to a passport, driving licence birth certificate or the dropping of trousers don’t you mean lifting of skirts?

[Gottalife]

@Ereshkigalangcleg

No, it is woolly and vague, which is a large part of the problem, but a GRC isn't necessary.

Their is a lot of obsession about the GRC on this forum. Really a GRC is a very private document. Nobody is required to show it and nobody has the right to see it. All the Women's space police can do is ask for i.d. passport, driving licence, birth certificate or drop your trousers please. Good luck with that.

[Barracker]

7Gender reassignment
(1) A person has the protected characteristic of gender reassignment if the person is proposing 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.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

(My bold)

My Notes:

1. To have the PC of "gender reassignment" you are referred to in this law as a "transexual person" (not transgender)

1. To have the PC of "gender reassignment" you must at the barest minimum have a plan to CHANGE physiological or other attributes of sex

1. What does the law consider the physiological attributes of sex to be, and what degree of change to them is deemed material here?

1. What does the law consider the other attributes of sex to be, and what degree of change to them is deemed material here?

1. The characteristic is named as (but doesn't define) gender.

But the criteria reference sex.

I'm of the opinion that it would be very interesting should anyone ever legally challenge a person claiming this PC. For them to prove they have this PC some of these questions would need to be clarified in court.

Many people claiming protection under this characteristic have no intention to change anything other than their name and pronouns. I'd like to see a court try to rule that physiological attributes of sex means the honorific Barclays Bank put on a credit card statement.

Arguably, since it is completely impossible to change a physiological (or other) attribute of sex in any way that alters sex even a speck, (a woman with a hysterectomy or mastectomy hasn't changed her sex at all, although she has experienced a change in an attribute of her sex) then it can be said that no matter what change a person proposes to undergo it remains immaterial to the matter of their sex.

I'm not a lawyer, but when I read extracts like this I realise that the law is in fact a monumental ass.

[Aha85]

If a man decides that they are going to become a transwoman and mentions it to their boss, they are covered by the potected characteristic of gender reassignment. This is a good thing. It means they cannot be fired just because they have come out as a transwoman.

However, one does not have any right to be treated as the opposite sex in accordance with the Gender Recognition Act 2004 unless/until one obtains a gender recognition certificate (GRC). A transwoman without a GRC is legally male and their sex protected characteristic for the purpose of the Equality Act 2010 will be male - see R (Green) v SSOJ)www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

There are certain provisions in the Equality Act 2010 which provide for eg single sex services which can mean that transwomen can be excluded from female only services in some circumstances where there is justification even if they have a GRC and are therefore legally female. Transwomen without a GRC can simply be excluded because they are legally male without the need for justification.

[JoodyBlue]

OK thanks everyone. I am clearer. Much appreciated all.

[334bu]

the law would be twisted to allow things like rapists into women's prisons.


Or according to Devon's Health Board policies male sex offenders into female only wards.