Ann Sinnott of Authentic Equity Alliance vs EHRC Judicial Review of incorrect Equality Act guidance

[R0wantrees]

The presiding judge decided that this should go straight to a 1-day oral Permissions Hearing.

This hearing will decide whether or not AEA can proceed to Judicial Review of EHRC and will also rule on request for a costs cap (to protect AEA) should the case go forward.

AEA about the case,
"Official sources provide unlawful guidance on the 2010 Equality Act!
Yes, you read that right! It's shocking, isn't it?

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

This is a legal case to ensure that EA2010 guidance accurately reflects the Act.

The Complainant is Authentic Equity Alliance (AEA), a Community Interest Company established to promote and further the interests of women and girls."
Website: aealliance.co.uk/

Ann Sinnott (founder/director) twitter.com/AnnMSinnott

Twitter live tweeting of case via #AEAvEHRC and #IStandWithAnnSinnott

@BelleHathor

1m: To do otherwise would be to water down the availability of single-sex services. The rationale for them is eroded.

This is making me dizzy. The respondent is arguing this? Are they arguing that single-sex services simply shouldn't exist? Of course that is the logical conclusion, but normally it's not stated openly.

The judge is saying he's only going to take 20 minutes to give his decision, that has to be a good sign surely.

I just cut and paste from Twitter, so no idea.

This is a long 20 minutes.

I’m gonna ask if the practical meaning of ultra vires is that if a public service had to decide on a case-by-case basis, whether a trans person could use a service that was already single-sex, that they would be acting without authority of the law just by considering it?
I’m obviously thinking of the relevance to the Edinburgh rape crisis CEO appt.

The respondent is arguing this?

I don't think so. I think the last two "R:" in the tweets should have been "A:". That's the only way it makes sense.

What worries me is not only is this law awful but if the Judge declines to JR what will the government do? We are stuffed unless we can have the law changed and no one wants to seem like a bigot so what next. I really have my fingers crossed. This is mega important

(Or there's a missing A: or two)

The judge is saying he's only going to take 20 minutes to give his decision, that has to be a good sign surely

I'd worry that he'd already made the decision.

All he has to decide is whether the number of worms in his courtroom justifies sending these people to the next stage.

@R0wantrees

EHRC are saying that TW with a GRC are indistinguishable from TW without a GRC, so a GRC is unnecessary. They also said that TW with SRS are indistinguishable from women, legally and physiologically.

Ergo any man who puts forward (a plan or suggestion) for consideration by others to undergo a process (or part of a process) for the purpose of reassigning his sex by changing physiological or other attributes of sex is at once indistiguishable from women?

This is nearing transubstantiation.

The moment the world and its uncle started chanting the TW mantra, this was the end game.

We will see if the law gives a toss.

I really feel for Ann right now. Given how stressed I am, she must be imploding. Shero. If you are ever on here Ann

times up judge

If GRC’s are irrelevant then why have them?
What is the point of coughing up a £5 if you can just do whatever you want without one?

Clearly a person without a GRC should not expect to override a protected characteristics set out in law...oh hang on a minute...

The key argument for me is around the status of a GRC. Sometimes biology does matter very much.

Is it a male thing to believe that TS males who are "post op" are indistinguishable from women?
I am very uncomfortable with an argument that suggests there is no harm/issue to girls and women if they are unaware of sharing intimate space with a male person. They have not consented.

The logical extension would be that its fine for men to film girls and women sleeping, undressing etc providing they don't know

I don't think so. I think the last two "R:" in the tweets should have been "A:". That's the only way it makes sense.

Must be that, thanks! I felt like I was going mad trying to parse it all - it doesn't help that the EHRC argument is so utterly insane already.

The judge is saying he's only going to take 20 minutes to give his decision, that has to be a good sign surely

It's a permission hearing though isn't it, so either it's going to be refused as out if time or proceed to a full hearing. There won't be a substantive judgment unless I've missed something.

@thepuredrop

I’m gonna ask if the practical meaning of ultra vires is that if a public service had to decide on a case-by-case basis, whether a trans person could use a service that was already single-sex, that they would be acting without authority of the law just by considering it? I’m obviously thinking of the relevance to the Edinburgh rape crisis CEO appt.

That should read ‘without authority in law’, that is to say, it would need to be referred to the court.

Is it a male thing to believe that TS males who are "post op" are indistinguishable from women

I think so, have heard similar about Caster Semenya. I think the logic is roughly: Men have a penis. Woman don't have our own distinct anatomy, we have a no-penis. Therefore a person without a penis is a woman.

Indistinguishable eh? So it’s really all about what you look like?really? Has the recent Rape crisis situation been brought up? Thank you to Anne and legal team for getting this far..

This is how it reads threaded from Threadreaderapp (part1):*
This afternoon we continue to live tweet
@AnnMSinnott of Authentic Equity Alliance's contested permission hearing in a proposed judicial review of
@EHRC

We will shortly hear more from the respondent EHRC's counsel.

#AEAvEHRC
The judge is with us.
R: the claimant claims that there is no reason to justify the exclusion, from women's spaces, transgender males with a GRC, and that there is no practical difference between excluding a trans person with and without a GRC.
J: it's put as both because the point is that the test in para 28 (proportionality test) will already have been passed
R: as a matter of law it must be proportionate to exclude trans people if they have a GRC
The argument is that if you satisfy ss.26 & 27, you're bound to satisfy s.28, but that would make s.28 otiose

J: they might still need s.28 for those with a GRC?
R: they say there is no distinction in practice

J: they may be saying that, as a matter of law, for those without a GRC, if it's justified as sex discrimination that determines the matter. For those with a GRC, it won't matter anyway.
R: it may be justified to exclude trans people, but that question would have to be asked
The proportionality test will always depend on the particular facts.
How could you possibly decide that every women's refuge and every women's changing room must always exclude transwomen?
In the Parliamentary materials, there were some women's refuges which allowed transwomen in, and others which don't. Could one say that the ones which admit TW are infringing the law? This is the claimant's legal error.
R moves onto the issue of sentences taken out of context.
It cannot be the case that you must exclude transwomen from women's changing rooms.
The Commission states that there must be strong reasons not to treat someone according to their acquired gender.

J: this means fully physically indistinguishable?

R: yes.
Post-operative transexuals are indistinguishable from women, hence there should be strong reasons to treat them differently.
Denial of service to a trans person should only be in exceptional circumstances. That is the Commission's view.
They can't use the women's changing facility, or the men's, so there would need to be pretty exceptional circumstances to reach that conclusion.
J: would that also entail that refusing admission to a woman's hostel would also need to be exceptional? Or does it mean that the situation itself is exceptional?
R: that the situation itself is exceptional. You have to balance detriment to one group against the other.
drive.google.com/drive/u/1/fold…
J: you gave me a reference to do with refuges.

I intend if possible to give an oral ruling this afternoon.
R argues that the claimants claim fails because out of time
[comment: there are strict time limits on judicial review after the event which triggers the application]
J: does it make a difference when the claimant first obtained legal advice?
R: there is no harm to public administration if the Commission assumes that, once the three months have passes, the issue has gone away.
This is not a strong case.
R's submissions end.
AEA's counsel responds.

A: regarding delay, 23rd September was the first date on which EHRC confirmed it did not intend to amend the COP.
We say we are within JR time limits.
R: As regards main issues, may I take the example in COP of "they should treat transexual people according to their gender role." We say that is an error of law.
It is inherent in the concept of single-sex service that it is provided to one sex. We are talking, here, about the male sex. Where is that wording in the COP coming from? That's where are argument at para 22 of the skeleton comes in.
For the TPNC, there is no direct discrimination by exclusion because they are not being excluded on the basis of GR but of sex. Only indirect discrimination requires justification.
You don't get to the position of needing to look at indirect discrimination, but the COP invokes that language nonetheless.
J: if the

I am very uncomfortable with an argument that suggests there is no harm/issue to girls and women

As far as I can see so far, there has been no balance and equality of focus and consideration for all parties who are their concern in the EHRCs presentation so far. One would be forgiven for thinking that they had no responsibility or brief for women and girls at all.

If GRC’s are irrelevant then why have them?
What is the point of coughing up a £5 if you can just do whatever you want without one?

Most people don't want or need one but the aquired 'rights' depend on the GRA existing and some people wanting a GRC.

People who have no intention of ever obtaining a GRC can go ahead with changes to identity documents including passport, DBS etc

One would be forgiven for thinking that they had no responsibility or brief for women and girls at all.

Indeed.

It's a permission hearing though isn't it, so either it's going to be refused as out if time or proceed to a full hearing. There won't be a substantive judgment unless I've missed something.

Yes but I would expect that a refusal would need more justification and deliberation than giving permission. And it wasn't inevitable that the judge was going to give his decision so quickly, he said earlier on that he was "hoping" to deliver judgement today. Seems like he's heard nothing to give him pause for thought since then - and he's been hearing the Respondent's case.

Threadreaderapp (part2):*
J: if the PCP is a proportionate means of achieving a legitimate aim, discrimination is justified. When you're deciding this, you have to consider its' impact on putative victims of discrimination.
For example, a requirement that employees work full time, but you have to consider how it impacts on women due to childcare commitments.
Why does it follow that if a PCP is proportionate for those without a GRC, why does it follow that it is for transexual women?
J: how so?

R: the justification is the maleness of the person being in a changing room with someone of the opposite sex
To do otherwise would be to water down the availability of single-sex services. The rationale for them is eroded.
The example given of a total denial of a service to a transexual person should only happen in exceptional circumstances. Take for example Hampstead Bathing Ponds, transexual males say they want to lose the Ladies' Ponds--not the mixed sex or men's ponds.
[comment: that is clearly not a total denial of service, a denial of any place to bathe at the ponds]
If the word "conduct" imports a need to look at each individual arriving at the service asking to use it, on a "case-by-case" basis, that would represent a complete misunderstanding of the law and liable to be struck out as ultra vires.
J: I will rise for 20 minutes then come back and give my decision.

Judge rises.

2m:The judge should return shortly to give his oral findings in
@AnnMSinnott
of Authentic Equity Alliance's contested permission hearing in a proposed judicial review of
@EHRC

Will AEA be permitted to go forward to a full judicial review of EHRC's policy guidance?

#AEAvEHRC