Q&A thread for New Posters

[CharlieParley]

Welcome to the FWR board and welcome to the debate. If you're new here and have been told your questions might be better on their own thread, but you're not comfortable starting your own, then please feel free to ask your question here.

I'll try my best to answer and some of our other regulars might pop in too.

@AskingQuestionsAllTheTime

Legislation since Thatcher got rid of the department whose business was to draft unambiguous law has been something of a mess, requiring the courts to straighten it out.

What department are you referring to? Drafting primary legislation is the job of the Office of Parliamentary Counsel who have been around for 150 years and are still committed to clear unambiguous drafting.

[quote Helen8220]@Ereshkigalangcleg

But in some cases this risks discrimination against males who do not have the protected characteristic of gender reassignment. Males with it but no GRC are legally male for the EA2010. So it's not as clear cut as you imply.

I thought that having a GRC was irrelevant for the purposes of the EA? The question of how the GRA interacts with sex discrimination under the EA seems to be one of the key areas of legal uncertainty[/quote]
You quoted the relevant part of the GRA2004 yourself earlier:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

So if a person has a GRC, their sex (in legal terms) is different from if they don't have a GRC. So it's not completely irrelevant in terms of the protected characteristic of sex in the EA2010.

This means that it is easier to exclude a male without a GRC from a single sex female space (legally male even if this person has taken steps to make a physical transition) than it is to exclude a male with a GRC (legally female, but may be physically indistinguishable from any other male).

@OldCrone

This means that it is easier to exclude a male without a GRC from a single sex female space (legally male even if this person has taken steps to make a physical transition) than it is to exclude a male with a GRC (legally female, but may be physically indistinguishable from any other male).

Are you sure that’s right? A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant. They would have to argue that the exclusion didn’t fall within Schedule 3 para 28 because their exclusion from the single sex service in question wasn’t a proportionate means of achieving a legitimate aim - which would be extremely fact specific, but I’m not sure a court would give much weight to the person having a GRC.

Are you sure that’s right? A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant.

Their "legal sex" isn't irrelevant, it's a higher bar for exclusion from female spaces or treatment as a male rather than female and there is case law. The EHRC clarified in 2018 that the legal sex of a male without a GRC is male. There is no special positive right in the EA for males without a GRC (who may be considered legally female in terms of the EA) to access female single sex spaces where women expect privacy and dignity, any more than any other legal male.

I thought that having a GRC was irrelevant for the purposes of the EA?

No, not in practice.

A trans person wanting to challenge their exclusion from a single sex service would presumably always rely on the protected characteristic of gender reassignment rather than sex (and couldn’t rely on the latter if they had a GRC), so their sex would be irrelevant.

Their sex (the sex which is legally recognised) isn't 'irrelevant' to single sex spaces. If sex was irrelevant for single sex spaces there couldn't be any single sex spaces. Both the protected characteristics of sex and gender reassignment are relevant.

Take the example of a women-only space. Men are excluded. Anyone who is male (legally male) is excluded. Someone born male who identifies as a woman but doesn't have a GRC is legally male, so he is excluded on the basis of his sex, just as any other man is excluded on the basis of his sex. He is not treated any differently from any other male person, so there is no discrimination due to the protected characteristic of gender reassignment.

A woman who identifies as a man but has no GRC is legally female, so cannot be excluded from a female-only space. To exclude such a person would be to discriminate because of gender reassignment, so she shouldn't be treated any differently from any other female person.

A person born male who has a GRC is legally female, so would normally have the right to enter female-only spaces, but there are still provisions in the EA to prevent this if it is a proportionate means of achieving a legitimate aim.

The comparator for discrimination on the grounds of gender reassignment is with someone of the same legally recognised sex.

@OldCrone

Their sex (the sex which is legally recognised) isn't 'irrelevant' to single sex spaces. If sex was irrelevant for single sex spaces there couldn't be any single sex spaces. Both the protected characteristics of sex and gender reassignment are relevant.

Take the example of a women-only space. Men are excluded. Anyone who is male (legally male) is excluded. Someone born male who identifies as a woman but doesn't have a GRC is legally male, so he is excluded on the basis of his sex, just as any other man is excluded on the basis of his sex. He is not treated any differently from any other male person, so there is no discrimination due to the protected characteristic of gender reassignment.

A woman who identifies as a man but has no GRC is legally female, so cannot be excluded from a female-only space. To exclude such a person would be to discriminate because of gender reassignment, so she shouldn't be treated any differently from any other female person.

A person born male who has a GRC is legally female, so would normally have the right to enter female-only spaces, but there are still provisions in the EA to prevent this if it is a proportionate means of achieving a legitimate aim.

The comparator for discrimination on the grounds of gender reassignment is with someone of the same legally recognised sex.

I’m still not sure this is correct. Obviously in establishing a single sex service the provider has to show that the conditions for relying on the sex discrimination exception are met. And it may well be right to say, as the EHRC does, that where a trans person brings a sex discrimination claim, their sex for that purpose will be their legal sex, which will depend on whether they have a GRC. But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination (and ultimately the lawfulness of their exclusion will be very fact specific) - if it were enough for the provider to simply say ‘you don’t have a GRC, so your legal sex is male, and therefore we are excluding you like any other man’ then how could a trans person without a GRC ever bring a gender reassignment discrimination claim in those circumstances?

But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination

That's because everything you've read is pushing a certain agenda. There is also the issue that the possession of a GRA has certain privacy issues so these sources claim it isn't possible for a service to exclude MTF people as they don't know if they have a GRC or not.

if it were enough for the provider to simply say ‘you don’t have a GRC, so your legal sex is male, and therefore we are excluding you like any other man’ then how could a trans person without a GRC ever bring a gender reassignment discrimination claim in those circumstances?

My understanding is that they couldn't (unless they were being excluded from the services for their own sex). Do you know of any cases where such a claim has been made?

I reiterate there is no specific Equality Act right for any legal male to access female only spaces.

Do you know of any cases where such a claim has been made?

There is a case much cited by TRAs where a publican banned an MTF trans person because the person used the female toilets. Two things: the publican didn't contest the case, and the person was barred, not simply asked to use a different toilet.

Maya Forstater wrote an interesting article on it on her Question of Consent blog.

a-question-of-consent.net/2020/05/29/the-case-of-sb/

@Ereshkigalangcleg

I reiterate there is no specific Equality Act right for any legal male to access female only spaces.

This is the critical point that you're missing Helen.

If you were right about this, just think what would happen.

Any man who wanted access to a female-only space could just say 'I identify as a woman' and he would have to be granted access. We are repeatedly told that 'gender expression' is not the same as 'gender identity', so he wouldn't even have to 'dress as a woman'. He could turn up just looking like any other man and claim to have a 'woman' identity.

How would you prevent him from accessing female-only spaces? After all, someone's 'gender identity' (again, as we are repeatedly told) is a personal, internal feeling, which nobody else can question because it can't be seen and there is no test for a 'gender identity'. So everyone is whatever they say they are.

In your version of the law, single-sex spaces don't exist, because everyone can self-identify into whichever one they want.

But everything I’ve read indicates that a trans person with or without a GRC could potentially challenge their exclusion from a single sex service on grounds of gender reassignment discrimination

You could argue direct discrimination (you have to leave the pub because you are trans) or indirect discrimination (I am effectively excluded from this service because there is no toilet provision for me), but neither of those arguments prevent provision of single sex services that exclude on the basis of sex.

Similarly I could argue that Saga holidays discriminated against women (can’t be bothered to think of an imaginary example), but it would still be legal for them not to take my booking because of my age.

The statement from the EHRC that you quoted above also includes the following:
“Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. There are some exceptions permitting different treatment on the basis of gender reassignment, for example the exceptions related to single-sex services and associations. These exceptions do not hinge on whether or not an individual has a GRC. Any use of the exceptions permitting different treatment must be objectively justified, meaning that it must be a proportionate means of achieving a legitimate aim, and will therefore depend on the particular circumstances. While an individual’s possession, or not, of a GRC may be part of the evidence a court would consider in a gender reassignment discrimination case, it is unlikely to be a determining factor.”

The misrepresentation of the EA by the EHRC (and the GEO) is the reason that Ann Sinnott has applied for Judicial Review. As she points out, many other organisations have used the incorrect information from these sources to shape their own (unlawful) policies. So women believe they have the right to single sex services and those who are trans believe they have the right, in law, to access whatever service they feel best matches their gender identity - no wonder there is conflict over this.
From her crowdfunder:

'For nearly 10 years, unlawful guidance on the 2010 Equality Act (EA2010) has been displayed on the website of the Equality and Human Rights Commission (EHRC) and on the Government Equalities Office (GEO) website for 5 years.

Over these ten years, the guidance has been widely accessed and further disseminated by countless organisations of all types. As a result, the unlawful guidance is reflected in the equality policies of organisations and institutions throughout the UK.

EHRC and GEO guidance is in breach of EA2010, Schedule 3, Sections 26, 27 and 28'

At the conference organised by WPUK this time last year there was a session on Women and the Law and there were lots of questions asked like this (e.g. "is it legal for abc to be female only? Do we have a right to refuse entry to xyz type of people?").

The lawyers answering the questions were saying that there is no clear yes or no answer to any of these questions. Any perceived discrimination can be challenged in court and the "discriminator" would have to prove that it was a proportionate means of achieving a legitimate aim. All factors (such as GRC, trans identification etc.) can be taken into account in deciding whether or not the discrimination was lawful.

I remember them saying that it really does work on a detailed, case by case basis. The example they gave was the difference between a local "women's support group" that had less than 10 attendees and a "women's conference" which was a large, publicly advertised event. In the former you might be able to justify it being sex-segregated, in the latter you would really struggle.

There are numerous examples of legitimate single sex provision actually written into the equality act. Including refuges, sport and health care.

It's all there in black and white.

I remember them saying that it really does work on a detailed, case by case basis.

When transactivists use the term case by case, they generally mean in terms of the person being excluded. So this person should be, but that person not so much. Which is clearly unworkable in real life.

But in terms of the provision, yes. It has to be justified as a proportional means to a legitimate aim. But the examples of these are quite clear.

So this person should be, but that person not so much. Which is clearly unworkable in real life.

And it would be impossible to eliminate personal bias in decision making. It would be legislating to allow prejudice.

It's all there in black and white.

I don't want to get into a protracted argument over this but I was actually really surprised by the responses of the lawyers in that session as they were explicitly saying that nothing is black and white and any perceived discrimination can be challenged in court. It is the responsibility of the service provider to prove to a judge that the discrimination that took place was a proportionate means of achieving a legitimate aim.

In terms of a case by case basis I mean that they would examine the intricacies of each individual situation. For example, does this refuge have shared sleeping accommodation, shared bathroom facilities, how is it arranged. In what way would women be negatively affected by this, what ramifications would that have for service provision, what risk mitigations are in place etc.

Thanks all, this whole discussion started from a comment I made about the meanings of ‘sex’ and ‘gender’ in legislation being unclear, and the interaction between the EA and the GRA being uncertain, I think the comments prove my point! Personally I think they should scrap and re-write the whole area from scratch

I don't want to get into a protracted argument over this but I was actually really surprised by the responses of the lawyers in that session as they were explicitly saying that nothing is black and white and any perceived discrimination can be challenged in court. It is the responsibility of the service provider to prove to a judge that the discrimination that took place was a proportionate means of achieving a legitimate aim.

Of course. Anyone can challenge anything they like!

@Helen8220

Thanks all, this whole discussion started from a comment I made about the meanings of ‘sex’ and ‘gender’ in legislation being unclear, and the interaction between the EA and the GRA being uncertain, I think the comments prove my point! Personally I think they should scrap and re-write the whole area from scratch

Yes it is unclear, and I hope that Ann Sinnott's JR will provide some clarity.

I think the gender/sex confusion was inevitable once the GRA was passed. This law acknowledges that people can't change sex but can change 'gender', which is why there is this confusion.

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex. There is no longer any need for this, since we now have same sex marriage, so the GRA, as you suggest, could simply be scrapped. The EA would then be clearer about single-sex spaces because everyone would simply be the sex they were born as.

I think the gender/sex confusion was inevitable once the GRA was passed. This law acknowledges that people can't change sex but can change 'gender', which is why there is this confusion.

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex.

Indeed. It was a sexist solution to a sexist problem.

Fortunately people are more enlightened, and the sexist solution is no longer required.

The GRA was passed in order to provide specific provisions for people who had undergone physical transition to 'live as' the opposite sex - in particular to allow them to marry someone of the same sex

The other reason was to protect the right to privacy per the Human Rights Act - it recognised that in some situations this would be threatened if sex had to be revealed. (Although the right to privacy is a qualified right).

However, I don't know whether the right to privacy is relevant when somebody information is already public.

Ereshkigalangcleg
There is a case much cited by TRAs where a publican banned an MTF trans person because the person used the female toilets. Two things: the publican didn't contest the case, and the person was barred, not simply asked to use a different toilet.

Is it no longer true that a publican or landlord can ask any person whatever to leave his premises for any reason or none? It certainly used to be the law that the proprietor or owner of any premises could withdraw the implied permission for you to be in or on their premises, and that was their right. If you then insisted on being, remaining or going there, it was trespass. (This was in 2010, and I haven't looked since.)

This was the same when it was your house. So for instance the TV licensing people had no right to enter your premises unless they had a warrant to do so, and the words "I withdraw any implied right to be on my premises" meant they were not even allowed into your front garden. (This was worth knowing if you didn't have a television and therefore had no licence, and cba having your house searched for one. They are trained now, but for a couple of years they were a pertinacious nuisance.)