This case is about prisons, not about public spaces or services. It also deals with the provision of items to someone who was an escape risk, in prison, and the justification included whether the items (including a wig) could be used to escape. You've been very clear that you're a lawyer (although you've not said which type?) but that doesn't over rule what the Equality Human Rights commission say, which is the opposite: www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination So I don't know (but I'm sure you'll explain as a lawyer) how a High Court Case about a very different set of facts could be relevant to the question at hand or be good reason to ignore the statute, the guidance and human rights law. I'd address you to the case R. (on the application of E) v Ashworth Hospital Authority [2001] EWHC Admin 1089 where even restrictions placed on a psychiatric patient’s freedom to dress as a woman and to assume the appearance of a woman constituted an interference with the protected Human Right to a private life and therefore a breach of human rights. Without the specific issues created by the imprisonment of the people concerned, there doesn't seem to be much room for your argument to stand
@bigotryisbad
I am an employment and discrimination lawyer. The lions share of my job involves interpreting the Equality Act.
- The case you mentioned is irrelevant on a number of grounds. it’s from 2001 which predates the Equality Act by nearly a decade. A case cannot assist with interpreting legislation not yet in force. We could look to the case law on the discrimination before the Equality Act, but the case isn’t about the Gender Reassignment Regs either. See paragraph 4:
The case advanced on his behalf is that the hospital cannot lawfully prevent him from wearing women’s clothing: the restrictions placed on him are (1) outwith the hospital's statutory and implied or common law powers as a detaining hospital and/or (2) in breach of his rights under Article 8 of the European Convention on Human Rights
It isn’t even a discrimination case. It has literally nothing to do with the Equality Act or its interpretation.
- The case I mentioned is entirely on point. The point is who the relevant comparator is for the purposes of a trans woman ref s13 Equality Act. Green deals with that point. It doesn’t matter that it was in a prison or whatever. The facts are different, but the law is the same.
The relevant comment from the judge is:
A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment
- What the High Court says in Green in fact does override what the EHRC says. What the EHRC says is guidance, not law. The High Court’s decision is in fact part of the law and binds inferior courts.
- the EHRC guidance doesn’t back you up. It says nothing about who the relevant comparator is when deciding if a trans person has suffered discrimination.
I don’t want to be rude but I think you need to read up about comparators. S13 refers to less favourable treatment and is meaningless until you’ve identified who you are comparing to. You seem to think it is women, and that a trans woman must not be treated differently to a woman. That is not what the law is. That is not the meaning of section 13 in relation to a trans woman.