Maya Forstater’s appeal - discussion thread 2

[Sophoclesthefox]

I see the last thread filled up, but there might still be enough to discuss as a round up of the afternoon’s events to keep going into a second thread.

Thread one here:

www.mumsnet.com/Talk/womens_rights/4228233-Maya-Forstaters-appeal-skeleton

What is the legal recourse for a woman who wants to access a single sex service in this case?

That's trickier. You'd be looking at duties of care, or maybe indirect sexual discrimination - if woman are worse impacted by only mixed-sex services being available, then that could be a case for indirect discrimination on grounds of sex by the service provide.

I haven’t read the full thread so apologies if this has been said, but there was an article about this on the bbc website earlier- now disappeared!

NecessaryScene1

Thanks, this is what I feared. So even though the law allows single sex facilities, there's no easy way to require them - even in an obvious setting like a hospital ward or a prison. How grim.

So even though the law allows single sex facilities, there's no easy way to require them - even in an obvious setting like a hospital ward or a prison.

In some places the law (or other regulations) does require them, but not that many. Single-sex toilets in schools is the one I always see here. Others can provide more.

But certainly when the EA2010 was being written, I don't think it ever occurred to anyone that there would be a problem with places like like prisons or shelters or rape counselling not wanting to provide single-sex services. They thought they just had to cut out the lines so they didn't inadvertently make them illegal by this overall anti-discrimination bill.

I think it's the case that the single-sex provision laws and regulations probably only exist for things that seemed marginal - like those school toilets. You never needed to order people to make shelters single sex, cos it was obvious! Hence no rules about it.

Invisible
There are requirements for single sex provision may exist in regulation or policy. For example the requirements for single sex accommodation in the NHS were introduced in operating frameworks about a decade ago.

@Sittinonthesand

I haven’t read the full thread so apologies if this has been said, but there was an article about this on the bbc website earlier- now disappeared!

That’s very odd!

Did you manage to read it and if so what was the reporting like?

Maybe they got complaints about it (from either side)?

Charities may have objects (statements of purpose) that may specify that they only provide a service to 1 sex.

That's trickier. You'd be looking at duties of care, or maybe indirect sexual discrimination - if woman are worse impacted by only mixed-sex services being available, then that could be a case for indirect discrimination on grounds of sex by the service provide.

I think this is going to be the only chance of reversing the de facto self ID which exists. It has to be as costly to create a hostile environment for women and girls.

@Letsgetreadytocrumble

There can be yes. People who have legally changed sex have the protected characteristics of that acquired sex, and gender reassignment.

There are exemptions in the Equality Act which mean that even those with a GRC can be excluded from certain single sex provision in specific circumstances. These are the exemptions that Stonewall are currently campaigning to abolish, meaning that women would never be entitled to any single sex provision.

It's outrageous that transgender women even have the front to think they have the right to demand that.

So even though the law allows single sex facilities, there's no easy way to require them - even in an obvious setting like a hospital ward or a prison.

Previous thread, OP Barracker wrote, Tue 16-Oct-18
"We've been lied to about 'Single SEX' wards since 2010.
medium.com/@anneharperwright/sex-gender-the-nhs-1e8f4e6363a6

They were ALWAYS based upon 'gender'.
The evidence is in NHS documents from 2010.
And the Department of Health were told, by the NHS team, not to tell people wards were segregated by sex, because they knew the policy was based on gender.

But the DOH purposefully used the word sex to the public instead.

We've been deliberately misled."

www.mumsnet.com/Talk/womens_rights/3396859-Weve-been-lied-to-about-Single-SEX-wards-since-2010

embedded article by Anne Harper-Wright
(extract)
"The votes for the Gender Recognition bill were split down party lines. A Labour Government whip resulted in 289 labour votes for the bill. Most conservative MPs however, voted against the passing of this bill that enabled the concept of ‘gender’ to supersede sex. A conservative MP, Andrew Lansley, however, rebelled and voted aye.
Andrew Lansley was in no doubt of the distinction between sex and gender. He voted for gender to legally outrank and overwrite sex.
Six years later in 2010 Andrew Lansley rose to the role of Health Secretary within the coalition government.

The NHS understands the clear distinction between sex and gender.
The NHS, in addition to treating patients by biological sex, are legally bound to respect a person’s ‘gender identity’ too, should they declare one. Biological sex remains immutable, and important. Medical treatment of the sexes differs between males and females. Male and female anatomy, genetics, reproductive organs, diseases, response to drugs are critically different. To overwrite a patient’s biological sex in a medical record with their gender identity would be dangerous. The NHS was so concerned about inadvertent confusion between the two concepts that it took careful action to ensure it could keep a record of both." (continues)
The claim: Elimination of Mixed Sex wards.
In 2010, to great fanfare, Health Secretary Andrew Lansley of the Conservative party announced the Coalition Government’s laudable commitment to place all NHS hospital patients in single-sex wards — with any mixed sex breaches made public and financial penalties imposed.
“It should be more than an expectation, it should be a requirement that patients who are admitted should be admitted to single-sex accommodation,” the Health Secretary told BBC Radio 4’s PM programme.
“Patients should be in single-sex accommodation, meaning that all of their period that they are admitted they should be in a bed or a bay which only consists of people of the same sex. (continues)

The truth: “The policy commitment relates to gender, not sex”.
Despite what the public were told, the policy was always explicitly based upon segregating by ‘gender’ and not sex, right from its inception.
NHS documents and records dated from 2010 show that before the policy was implemented, whilst still in its design stages, the specifications always related to gender, not sex. And yet the name of the policy, and all references to it to the general public were explicitly instructed to be sex, not gender. The opposite of the truth.

The deliberate use of the word SEX to name the policy, whilst using GENDER to facilitate it, was a Department of Health mandate from Andrew Lansley." (continues)
medium.com/@anneharperwright/sex-gender-the-nhs-1e8f4e6363a6

On the issue of whether the EA can require single sex spaces etc to be provided, it does forbid harassment in relation to the protected characteristic of sex. Harassment includes behaviour which has the effect of violating a person's dignity etc and creating a degrading, humiliating etc environmental for that person. Employers etc forcing women to share changing rooms etc with males, or women prisoners being locked up by the state with males, could surely amount to harassment.

[quote R0wantrees]I’m interested in what constitutes a ‘belief’.

Yes me too, to me and to most people who walk on the earth biological sex is fact.

It is a belief system (gender ideology) that opposes this fact.

This is a good summary:
thecritic.co.uk/what-is-the-case-against-maya-forstater/[/quote]
I read the link and, what I didn't realise until just now, was that he quoted Karon Monaghan QC, who was counsel for the EHRC in this case.

From your link:-

"Karon Monaghan QC, one of the leading specialists in equality and discrimination law, predicted last year that it would not survive an appeal."

It then links to what she wrote of the original tribunal judgment:-

The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – by Karon Monaghan

She said, more than a year ago:-

To sum up: statute and case law recognises a binary distinction between the sexes; that binary distinction is dependent upon biology and will usually (though not always) find reflection in gender ascriptions; the EA 2010 recognises a binary distinction between males and females and recognises gender reassignment status as a distinct characteristic. The GRA is a muddle. This was the general legal backdrop against which the Judge in Forstater had to decide the issue before him.

Which, rather unsurprisingly, is exactly what was in the EHRC skeleton.

Although, interestingly, she did also pick up on a point that a couple of posters have asked here recently about this belief is really just a statement of fact (albeit facts that some TRAs would deny) and said:-

Finally, on Forstater, what to date has received very little attention is the significance of limb two of the Grainger test (“not an opinion or viewpoint based on the present state of information available”) and the conceptualising of “belief” more generally. If it is a fact that sex is biological and immutable, as case law suggests, can the recognition of that fact also be, or be reduced to, a belief? The Judge in Forstater did not consider that question or the related limb two of the Grainger test.

@Anovaneway

which is why a TW can legally be excluded from single sex services for women, GRC or not.

Only in certain circumstances. Where it can be shown to be a proportionate means of achieving a legitimate aim.

And the rights and feelings of women aren't a legitimate aim? Go on, say it.

@ArabellaScott

the law treats sex as biological and binary and gender identity as social

Have we got this on a T-shirt, yet?

A slight diversion, for you @ArabellaScott:

Great idea, works well!

(Now someone needs to actually make it!)

R0wantrees
Nevertheless the 2012 NHS operating framework refers to eliminating mixed sex accommodation. So do hospital policies. The intention may have been gender but as this case shows sex and gender are not the same thing. So the verbal sleight of hand may come back to haunt them.
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/216590/dh_131428.pdf

Interesting thread from Legal Feminist on Twitter.

Legal Feminist
@legalfeminist
There's quite a lot of concern being expressed about the EAT's decision to reserve judgment in #MayaAppeal this afternoon, but don't read much into that.

This was a long hearing by EAT standards - appeals are usually dealt with in half a day or a day.

There was a great deal of complicated legal argument.

It shouldn't be hard for the EAT to get the right answer, but they have a lot of material to consider.

There's a strong chance that whatever the EAT does, there will be a further appeal. Choudhury J hasn't yet been overturned by the CA, and he'll want to keep it that way.

So he'll want to do a careful, thorough job.

And good judges know that an important part of the job is ensuring that the losing side goes away feeling they've been respectfully listened to. So politeness to both sides should never be surprising.

On the issue of whether the EA can require single sex spaces etc to be provided, it does forbid harassment in relation to the protected characteristic of sex. Harassment includes behaviour which has the effect of violating a person's dignity etc and creating a degrading, humiliating etc environmental for that person. Employers etc forcing women to share changing rooms etc with males, or women prisoners being locked up by the state with males, could surely amount to harassment.

Yes I agree. IANAL but someone I know put it to a lawyer and they said they thought it could, depending on the circumstances.

Ooooh! Nice T!!!

IANAL either. I assume harassment in relation to the PC of sex hasn't been tested in court but live in hope that revised EHRC guidance will include something on this.

.

R0wantrees

The general rule is that you cannot discriminate in various circumstances and there are exceptions to those rules, and those exceptions always apply in the circumstances where they apply.

Just going totally off-topic and I don't mean to derail the thread in any way.

This post just reminded me of the old saying "The exception proves the rule".

For a long time I never did understand that saying until I finally found out that this was just part of the saying and that the whole saying is (or was?):-

"The exception confirms the rule in the cases not excepted"

Or, in other words, the fact that there is an exception proves that there must exist a general rule to cover everything else not accounted for by the exception.

So, for example, if a signs says eg "No entry on Sundays" this implies that there is a general rule that entry is allowed - except on the exception of Sunday.

It comes from an old latin legal term from the time of Julius Caeser:-

"exceptio probat regulam in casibus non exceptis"

Nevertheless the 2012 NHS operating framework refers to eliminating mixed sex accommodation. So do hospital policies. The intention may have been gender but as this case shows sex and gender are not the same thing. So the verbal sleight of hand may come back to haunt them.

Its worth looking for announcements from senior Ministers (including Prime Ministers) since 2010 on the targets/success rate for single sex accomodation in NHS.

Then, consider the impact on girls and women not only denied single sex accomodation and/or intimate care but deliberately misled, dismissed and/or shamed:
womenvotingwithourfeet.wordpress.com/2021/04/25/single-sex-services-essential-legal/

womenvotingwithourfeet.wordpress.com/2021/04/27/vulnerable-daughter-right-same-sex-care/

www.thetimes.co.uk/article/patient-branded-transphobic-after-asking-for-female-medic-3jh3snddt

a-question-of-consent.net/2020/09/16/doctors/

'The exception proves the rule' has long been a topic of irritation and discussion in our house!
I have always liked that interpretation - the exception makes clear(er) what the rule is.
I think the more common explanation is the use of 'proving' as 'testing'. So the exception tests the rule. To what ends, I know not.

It's misused 95% of the time, with 'a few bad apples' rapidly catching up to match.

Many people new to these issues have found this thread useful:
www.mumsnet.com/Talk/womens_rights/3145470-Break-it-down-for-me