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.

[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.

[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.

[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.

[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?

[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.

[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.

[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.

[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."

[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.

[WootMoggie]

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