Has twaw been tested in court?

[confuseddotcomma]

Just that really. Does it have a legal basis?

Oh man. It's a legal mess. Short answer, no it doesn't.

Does Penny Mordaunt (sp?) stating it in parliament affect anything?

No.

I wonder what evidence they would present. The whole thing baffles me. If I claimed to feel like I am from a different race and demand that you saw me as such there would be uproar. But men can say they feel like they are women therefore they are women and that's ok. I just don't get it.

TWAW is a bit like Brexit. It means many different things to many different people. Some people claim it's true in a biological sense which is clearly a deluded or a mendacious position. For some politicians it's a convenient slogan that means that they get a pass for the Woke Police checkpoints.

This means that courts aren't going to give a general answer. What the courts are going to answer is whether TWAW in highly specific circumstances. TWAW was discussed in narrow a narrow sense in Maya Forstater's case and in the MoJ case last week.

I do understand what you’re saying nauticant - the court only gets involved in specific circumstances- but on the other hand I don’t understand how the TWAW principle can be applied/tested only in specific circumstances and not others. If the court has a verdict in specific circumstances doesn’t that get extrapolated? You can’t disagree with TWAW in prisons but allow it in, say, Women’s Prizes for Fiction. Can you? Just because one causes potential threat to life and the other doesn’t? Or is that the difference?

I'd donate to that crowdfunder, and it wouldn't even matter if we lost.

@YouSetTheTone

I do understand what you’re saying nauticant - the court only gets involved in specific circumstances- but on the other hand I don’t understand how the TWAW principle can be applied/tested only in specific circumstances and not others. If the court has a verdict in specific circumstances doesn’t that get extrapolated? You can’t disagree with TWAW in prisons but allow it in, say, Women’s Prizes for Fiction. Can you? Just because one causes potential threat to life and the other doesn’t? Or is that the difference?

I think with prisons, they're not arguing that TWAW per se. They're arguing that they don't need to keep prisons strictly single-sex. This may or may not stem from individuals' beliefs that TWAW, but that's not the legal argument.

You can’t disagree with TWAW in prisons but allow it in, say, Women’s Prizes for Fiction. Can you? Just because one causes potential threat to life and the other doesn’t? Or is that the difference?

Whereas everything relating to safety, health, safety etc should be firmly rooted in reality. I'm not sure a prize for fiction has to be. They could always just redefine it as for people of feminine gender I suppose.

Courts will only step in where there's a legal framework YouSetTheTone and there's a patchwork of separate legal frameworks. Outside of that I'd say the framework is public opinion and to get a move to rationality you'd need the public to be informed what's going on.

This could be done by institutions but they're all so thoroughly captured they're going to lag a long way behind everyone else in the journey to rationality.

I guess the nearest has been the transage Dutch case, but obviously not the UK.

www.google.com/amp/s/www.bbc.com/news/amp/world-europe-46425774

Interestingly one of the reasons it failed is because what would happen to those 20 years, do any achievements in that time become null and void? So if a TWAW and had been married, say, 20 years, it would then be a gay marriage, which wasn't legal 20 years ago. (I am thinking 'out loud')

Ultimately it would fail (imo) because of primogeniture, because if TWAW, then TMAM and well 'boom' that would never be allowed to happen. So lip service all the way until it effects the ones in charge.

The prisons case will be part of the answer. If it is held that TW even with a GRC can be excluded from the female prison estate under the single sex exemptions in the Equality Act 2010 then it would be harder to argue that TWAW. Similarly Ann Sinnott’s JR is on a similar point.

If sex based exemptions apply then arguably there is a difference between a biological female and a TW.

Trans women with a GRA are women was won by an ECHR case (Goodwin & I v United Kingdom)

Given that that case was decided on privacy grounds (and right to a family life) I am curious how an ECHR case that involved the privacy/religion of a woman vs a trans woman with a GRC would be resolved. I would also like to see a judge refer a case to the ECHR and have them solve what the definition of a woman is since they caused this mess to begin with.

As far as in English courts, the ruling in the Freddie O'Connell case would said trans men with a GRC cannot be recorded as Fathers of babies they give birth to which implies TMANM.

There have been lots of lower level court cases that give trans people right to single sex spaces but they do so based on their transgender status rather than on the basis of their sex for example. Whether or not cases like this would stand up on appeal to a higher court is not clear www.lawcentres.org.uk/policy/news/news/kirklees-law-centre-wins-landmark-transgender-discrimination-case

That's an interesting case, however it doesn't state for what incident the discrimination case was based on - not being able to use the toilets or being barred from the pub. (Or perhaps both) I'll try and dig deeper tomorrow.

To save you a bit of time, AfternoonToffee, Maya Forstater has already done some digging.

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

"The question of whether discrimination arose from Brook not being allowed to use the female toilet facilities or from Brook being barred from the pub was not raised, nor was there any examination of evidence on the circumstances that led up to Brook being barred that day.

This is the full basis on which the case was decided. It should not be taken as an authority for anything – either formally in law, or informally by presented as so in government documents and guidance."

My personal interest comes from the NHS. Single sex accommodation is mandatory and when breached this has to be reported. But trans people can choose their own ward. It makes no sense - if it is such a problem having a male body in a female space, why is that suddenly ok if they are trans? And I was thinking, the only way that could make sense was if twaw has a legal basis and the NHS trust could say, this is ok because they are legally women.
Personal experience of trans people being placed on ward of their choosing even when it is distressing to existing female patients.

Thank you ANewCreation that filled in some of the gaps.

As far as I know, TWAW only has a legal basis where the transwoman has a Gender Recognition Certificate. However, TWAW has become a cultural norm in some places, for example in organisations that have been institutionally captured by the gender identity ideology.

Unfortunately, this means there would either need to be a court case dealing with the specific circumstances you face confirming that without a GRC, self-identified transwomen should not be in single sex accommodation in the NHS, or you would need the culture to change.

The situation where someone has a GRC is more complicated since firstly you might not even be able to ask to see it (possibly not even to ask about it) or it might have been used to obtain an amended birth certificate.

And even a GRC doesn't make someone the opposite sex in the context of the Equality Act.
It's a mess.

There were cases before the GRA which in essence found that TWANW, eg Corbett v Corbett, Bellinger v Bellinger, Goodwin v UK. These cases were concerned with specific issues such as marriage and pensions. Ultimately it was the TWANW position which led to the GRA as a means to create the legal fiction that TW can be women in some circumstances. I think therefore that the current, untested, legal position is that TWANW unless they have a GRC.

You are most welcome, AfternoonToffee - it's well worth a read.

I don't think that Maya's research into the Kirklees case gets nearly enough attention.

It is the only case I see regularly mentioned as a test of TWAW / using single sex spaces. However, it really does not support that interpretation because it was almost certainly discrimination barring Brooks from the pub based on Brooks' protected characteristic of gender reassignment.

Whether the landlord was correct initially in ejecting Brooks from the ladies loos or not became a moot point, particularly as the landlord planned to represent himself and didn't turn up to court so we cannot know what the judge would have made of the single sex space argument.

I was therefore fascinated, miri1985, when you said:

"There have been lots of lower level court cases that give trans people right to single sex spaces but they do so based on their transgender status rather than on the basis of their sex" (emphasis mine).

Could you point me to any of the ones you know of that are post Equality Act 2010 as I am really struggling to find others? Obviously not looking in the right places!

Thanks in advance.

@confuseddotcomma

My personal interest comes from the NHS. Single sex accommodation is mandatory and when breached this has to be reported. But trans people can choose their own ward. It makes no sense - if it is such a problem having a male body in a female space, why is that suddenly ok if they are trans? And I was thinking, the only way that could make sense was if twaw has a legal basis and the NHS trust could say, this is ok because they are legally women. Personal experience of trans people being placed on ward of their choosing even when it is distressing to existing female patients.

A female patient who was caused distress could well be in a position to bring a claim.

"Could you point me to any of the ones you know of that are post Equality Act 2010 as I am really struggling to find others? Obviously not looking in the right places! "

Sorry @ANewCreation was probably being hyperbolic when saying lots but these were the few I was thinking of when I wrote that

Gets payout from the employment tribunal for what definitely seems like work place bullying but a fair amount of the reasoning for discrimination is around female toilet facilities which land rover seem to have been fine giving them access to but they were locked at some sites and some of the hassle of getting codes and the reaction to wanting the codes is part of the reason for the payout assets.publishing.service.gov.uk/media/5fc8d559d3bf7f7f5c134ad3/Ms_R_Taylor_v_Jaguar_Land_Rover_Limited_-1304471.2018-_Reasons.pdf

Was thinking of this one too but access to female facilities isn't addressed in this as Primark gave the claimant access (despite not GRC) so its not actually a court giving access assets.publishing.service.gov.uk/media/5a7aed66ed915d670dd7f91e/Miss_A_de_Souza_E_Souza_v_Primark_Strores_Ltd_-2206063-2017-_Final.pdf

My apologies for being hyperbolic, I could have sworn there were more than that but some of the ones I was thinking of weren't actually UK based

Thanks, @miri1985 - that's great.

Have only made it through the first employment tribunal but it makes absolutely fascinating reading.

Maya has done some digging here if anyone else wants a summary

a-question-of-consent.net/2021/01/02/taylor-v-jaguar-landrover-a-landmark-case-or-losing-sight-of-the-landmarks-of-reality/

A couple of additional observations. There is no mention of the protected characteristic of sex, because - surprise! - it's not in Jaguar Landrover's list of protected characteristics, and - surprise! - it's not referenced in the case by the claimant's lawyer.

As you say, the case really doesn't address TWAW directly - nor does it set out to - but what stands out is how there is literally no consideration of the impact on women in the workplace when, after 20 years with a company, a person who keeps their male name and has no intention of undergoing surgery suddenly declares they are a 'gender fluid non binary' person and wishes to 'dress in a male style on some days and a female style on other days' and wants to use female single sex facilities.

I note that Hansard was referenced as the most authoritative source to allow a gender fluid identity to come under the protected category of gender reassignment in the Equality Act 2010.

I do wonder if the judge was given the opportunity to see all of Hansard on section 7

"Baroness O'Cathain

Perhaps I may ask for clarification. I thank the Minister for giving way. The first thing that she said about the process concerned wearing the clothes of the different gender, behaving in that way, probably getting their hair cut very short and things like that. Some people then decide that they do not much care for that and go back, because it is not permanent. Where are we then? Are these transgender people or are they not? I ask because the Minister said that the process starts with wearing different clothes and goes through to gender reassignment.

Baroness Thornton

The point I was making is that that is the range of things that could happen for a transsexual person.

However, Clause 7 does not cover transvestites or others who choose temporarily to adopt the appearance of the opposite gender.

While we do not condone anyone being treated badly because of the way in which they present themselves, it would not be appropriate to provide people who present themselves temporarily as of a gender other than their birth gender with the same protection against discrimination that is available to a person with gender dysphoria, who is somebody who has been assigned one gender at birth, but believes that they are of another gender. That is the point—it is what happens to that person that the Bill attempts to address."

hansard.parliament.uk/Lords/2010-01-11/debates/10011139000077/EqualityBill?highlight=transvestites#contribution-10011149000003

What is dressing in 'female mode 2 days a week' if not that??

Surely this appears to suggest that Stonewall's crossdressers are therefore explicitly NOT covered by the protected characteristic of gender reassignment?

Does this have implications for the crossdressers in the Scottish Hate Crime Bill?

If the link below is correct, then the protected characteristic of sex has never been clearly defined in UK law, and sex and gender have been used interchangeably.

harryjosiegiles.medium.com/sex-and-the-scottish-census-8881ebe32d15