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

100K on re-affirming the EA 2010? What a waste of money, it could have been spent more productively helping women, donated to charities and so forth and such

Its arguable that the effect of promoting gender identity ideology to children has caused some to feel that the solution to not feeling comfortable in their own skin is surgical/ medical intervention.

Daily Mail 6th May 2021
'Non-binary model Olly Eley is unveiled as ELLE UK's first 'agender' cover star revealing they feel 'so disconnected' from any gender after years of 'despising' their female body'
(extract)
Eley told the magazine: 'After years of despising the body that I was born with, unable to relate in any way to the gender I was assigned at birth, I had at last found a way of existing in the world that made sense to me.
'I've never felt female, but then neither have I felt male. If there was a thin line that connected the two genders, I would be a dot floating somewhere between the two, but untethered to the line altogether. It's the only way I can describe it.'

The model said it was only when they moved to one of Australia's largest cities that they first heard the pronouns they/them, adding: 'Before I moved to Sydney, I didn't have the language or the role models to understand how I felt.

'I'd never really had the chance to consider that 'gender' could be something I could control if I wanted to.

'Once I moved to the city, that all changed. My mind opened and was flooded with light - there was this whole queer community that I had no idea existed.

'When someone first introduced themselves to me with their name and the pronouns 'they/them', it felt so safe to me. Woah, that's the answer to everything right now, I thought.' (continues)

'I chose not to have full 'top surgery' [a mastectomy], as that body wouldn't have served me either. Instead, I wanted the option to bind [a method of compressing the chest to give a flatter appearance] and the size of my chest previously meant that I wasn't able to do so effectively.

The June issue of ELLE UK (pictured) is on sale from May 6 +3
The June issue of ELLE UK (pictured) is on sale from May 6

'So I had a reduction to give me that control over my appearance. I bind not because I'm ashamed of my body but because the autonomy of doing so makes me feel safe.

'I'm not fluid where I shift between genders and pronouns. I am agender (devoid of gender altogether) and what I do with my body, whether I'm naked or in a full snowsuit, doesn't change it." (continues)
www.dailymail.co.uk/femail/article-9546635/Model-Olly-Eley-unveiled-ELLE-UKs-non-binary-cover-star.html

@Packituppackitinletmebegin

100K on re-affirming the EA 2010? What a waste of money, it could have been spent more productively helping women, donated to charities and so forth and such

Not if those charities aren't clear on the law protecting women, or indeed what the definition of woman is. Onwards.

What? The judge ruled that "I do not accept C's contention. ... C's interpretation of the act is wrong in law. There are no grounds to show that the guidance has placed women and girls at a disadvantage." How are we supposed to protect women if that's how it's been dealt with?

The judge ruled that "I do not accept C's contention. ... C's interpretation of the act is wrong in law. There are no grounds to show that the guidance has placed women and girls at a disadvantage."
Had I been persuaded that the code contained clear illegality, or that SPs were acting unlawfully as a result of it, I might have dealt with this matter differently.

I read this as it’s not unlawful to not exclude TW, not that it is unlawful to exclude them

How are we supposed to protect women if that's how it's been dealt with?

Well quite. And it took how much for some of these other court cases, a few which have been in appeals courts to get, common sense clarity back into law again.

This is just the beginning of the cases against the misinformation allowed. All funded by crowd funding and not any government grants like the organisations on the other side of the courtrooms.

Rather tells another story in itself doesn’t it?

There are no gender reassignment exceptions.
To clarify, the exceptions are SINGLE SEX
That's pretty much what AEA argued but the judge didn't agree.
The judge said there is no automatic entitlement to be included as the opposite sex because of gender reassignment.

The code does not, as C suggests, make any suggestion go "automatic" entitlement to access on the basis of acquired gender. Exclusion is permissible when a proportionate means of achieving a legitimate aim, eg. of privacy & decency.

Yes the judge said the code doesn't say there is automatic inclusion - service providers don't have to include any given trans woman, but the judge also said the code is lawful. The code deals separately with excluding male ppl with the pc of gender reassignment, and with excluding male ppl without that pc. They are dealt with as different exceptions in the code. He agreed with ehrc that parliament intended trans ppl to be treated differently to others of their sex when it comes to single sex spaces.

One bit of the code I was thinking of is:

"Statutory Code of Practice
Gender reassignment discrimination and separate and single-sex services
13.57 If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim."

" 13.60 As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available."

I believe he did say that 'exceptional' might be close to unlawful.

This is where 'indistinguishable' comes from:

13.59 Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary."

Sorry for long extracts, but this is what it's about, and the judge thought this was lawful.

There's something I dont understand.

The EHRC has been giving incorrect guidance. Why has it been left to an individual woman to challenge this? Why did the challenge fail, apparently on the grounds she wasn't personally affected? It wasnt an individual claim, it was an institutional failing.

Who monitors the EHRC? Why haven't they been doing their job?

Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

They never (almost) look like women. So unless a male didn’t go puberty - all are obviously male, so does this mean there is only inclusion for a very small subset of individuals, and if you don’t look female - which again is the vast majority - irrespective of what they think or wish, that is a basis of exclusion?

After all - most policies (usually and incorrectly informed by Stonewall) state as long as you say the magic words - I am a woman - you get in.

Also - this ignores non-binary - another non-legal and nebulous term, which is also included to many policies

Or course - not withstanding sing that gender doesn’t exists for a lot of women so there is no appropriate comparison.

@EyesOpening , I read this as it’s not unlawful to not exclude TW .

So, does you understanding boil down to that it is that lawful to include TW.

Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

They never (almost) look like women. So unless a male didn’t go puberty - all are obviously male, so does this mean there is only inclusion for a very small subset of individuals, and if you don’t look female - which again is the vast majority - irrespective of what they think or wish, that is a basis of exclusion?

That’s never really hit me before. That paragraph says that in single sex spaces, transsexual people only have to be treated as that sex if it’s impossible to tell that they’re transsexual by looking.

[quote Cailleach1]@EyesOpening , I read this as it’s not unlawful to not exclude TW .

So, does you understanding boil down to that it is that lawful to include TW.[/quote]
And also lawful to exclude TW

all are obviously male, so does this mean there is only inclusion for a very small subset of individuals, and if you don’t look female -

Sounds like it.

13.59 Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary."

A pp said the legal issue the EHRC were arguing is how a person with the pc of GR, but does not have a GRC, is treated.
That if a SP restricts services on the basis of sex, that will include those who hold a GRC but exclude those who don’t and this constitutes discrimination on the basis of GR.
I interpret this as meaning that if a SP provider wishes to exclude people on the basis of their sex, it must also justify doing so for people who have the pc of GR, regardless of whether they have a GRC. It must be able to justify this as a proportionate means (there is no other option but exclusion) of a legitimate aim (a service user would reasonably object to the presence of a member of the opposite sex ie on grounds of privacy and decency).

If I apply this example to the NHS Guidance of Delivering Same-Sex Accommodation, Parliament has decided NHS accommodation should be single-sex (except in some circumstances). This is already a proportionate mean, I think (happy to hear arguments otherwise). So men are excluded from women’s wards, but TW with a GRC are included. (But, there is a question whether one can ask a patient if they have a GRC, as generally, ”it would not be necessary to do so”.)
This means the EHRC consider it discrimination on the basis of GR if the NHS accommodate TW with a GRC on a women’s ward, but not TW without a GRC. The EHRC consider them both to have the pc of GR, so should be treated equally.
What the NHS does, is treat both as if they are women. It doesn’t matter whether their phenotype is congruent with their gender identity, (indistinguishable from women) they are women regardless. Because EHRC’s guidance is that you must treat TW who are physically indistinguishable from women as women, and you cannot discriminate between those who hold a GRC and those who don’t, in effect, TW who are distinguishable from women can be accommodated on female wards the same way as those who aren’t. If the NHS includes one, it has to include both.

This is where it gets confusing.
The NHS should offer single-sex accommodation.
Sex is defined in the EA as a man (male of any age) or woman (female of any age). A male of any age is a man, unless they have a GRC which makes them legally female, thus, a woman.
A male of any age, without a GRC, should be accommodated on a men’s ward.
EHRC and judge says the intention of Parliament is to treat those with a pc of GR (regardless of GRC) as different to others of their biological sex. This means that males with pc of GR should be treated as different to males without pc of GR, but doesn’t say they are women, except where the EHRC says you should treat them (those indistinguishable from women) as of their acquired gender. Both judge and EHRC agree this does not automatically confer entitlement to use opposite-sex services.

Judge and EHRC agree that NHS can restrict services on basis of biological sex, but can’t offer such sex-exempt services to those who have GR+GRC, and deny those who have GR-GRC: this is discrimination on basis of GR.

In practice, it seems that restricting services on the basis of sex should also exclude GR, regardless of GRC status, otherwise it’s GR discrimination (seems counter-intuitive to me, so I’m wondering if I’m wrong).
That means NHS (which should offer single-sex accommodation) should exclude males with pc of GR (+/- GRC) from women’s accommodation, invoking 26,27,28 of the scheduled exceptions. To invoke only 26,27 means that women and TW with a GRC can be accommodated on women’s wards, thus discriminating against TW without a GRC, on the basis of GR. So, NHS must exclude all TW from women’s accommodation, to be lawfully providing single-sex accommodation without discriminating on the basis of GR.

The NHS doesn’t do this, it includes all those with the pc of GR as being of their acquired gender and therefore entitled to use opposite-sex services. So we have a situation where single-sex exceptions can be invoked, but aren’t, even though to do so is proportionate and legitimate, and the service is still viewed as single-sex.
The key issue for me, relates to the intention of Parliament to treat those with the pc of gender reassignment, as different to others of their biological sex. This needs to be clarified further. The way the pcs of sex and GR interact mean SPs who should offer single-sex services are including males who must be treated differently to other males, but not automatically as females, and still calling it a single-sex service. Whether this means they can be accommodated on either ward provided they are in a side room, I’m not sure. I think this will also constitute discrimination. It doesn’t seem clear at all. It doesn't even seem clear if the NHS is failing in its responsibility to offer the single-sex service it’s supposed to.

@MrsWooster

robin “Apologies, but you can't just make up law to mean what you want it to...” Have the replies helped to clarify things for you?

Well, its certainly clarified that Ann Sinnott is not alone in not understanding it.

Well she's definitely not alone in the continued fight against it.

Allison Bailey Twitter comment,

"Hats off to AnnMSinnott of Authentic Equity Alliance. Although her JR against the EHRC will not proceed, her intentions were noble. Women & girls are dealing with a statutory framework that just didn't envisage the current climate. If this means the law must change, so be it."
twitter.com/BluskyeAllison/status/1390330577543389191

threads:
www.mumsnet.com/Talk/womens_rights/3950877-Allison-Bailey-to-sue-Stonewall

www.mumsnet.com/Talk/womens_rights/4163253-Allison-Bailey-to-sue-Stonewall-thread-2

website: allisonbailey.co.uk/

I’m not at all embarrassed to say I’m finding this hard to understand. IANAL so 🤷‍♀️.
However, if anyone would be able to tell me if I’ve understood correctly I’d really appreciate it as well as clarify something I don’t understand:

AS wanted a judicial review to look into whether service providers have been incorrectly informed about when they can/cannot use the exemptions in the EA and who they can/can’t use those provisions for.

The judge has ruled against there being a JR.
It has been acknowledged that TW should largely be treated as the gender they identify with EXCEPT in permitted circumstances e.g facilities that should be single sex for the reason of privacy, dignity etc. This includes ALL TW regardless of GRC because although the judge does not agree they are female, he also does not think they are male. To exclude on the basis of GRC rather than being non-female would be discriminatory.

Except....There is no 3rd sex. If a TW is not female or male then what are they? And which group should they be treated as in Law if Male/Female are the only legally recognised categories.

If Stonewall, EHRC et al have been advising SPs differently to what the judge thinks the legal position is (as above) then why not allow a JR? Because it’s the wrong mechanism to challenge them or because he doesn’t think they’re wrong?

Apologies if I’ve got this arse about face but I’m just one of those boring mummy feminists radicalised by the vipers leaders of FWR.

Faffertea, that's pretty much where I am with it. It seems so logical.

I don’t claim to understand it at all but reading this last part “ Had I been persuaded that the code contained clear illegality, or that SPs were acting unlawfully as a result of it, I might have dealt with this matter differently (per Banking case).” to me, he is saying that nothing that is in the code nor the inclusion is unlawful therefore he can’t allow a JR, he isn’t however, saying that exclusion is unlawful. He also said that if someone had brought a case where a woman’s rights were undermined, that would be a different matter.
“ No grounds to show that the guidance has placed women and girls at a disadvantage.”
“Such issues are better determined where an individual has been indirectly effected by the application of the guidance.“

I simply don’t understand. I need the Ladybird guide to this, since it surely can’t be the case that any male person who states they are a woman can access (hitherto) single sex spaces?
Am I right to think that what the judge said was that a service CAN provide single sex spaces (as proportionate means to legit aim), but IF they would let someone with a grc in, they have to let any self-identifying person in?
So the judge has ok’d self ID, in defiance of govt policy, because EHRC said so..?
Please keep replies simple-I’m struggling here.

It's what the TRAs are now popping in to tell us, Mrs Wooster. I have given up trying to understand, myself.

[quote R0wantrees]2014 Facebook Telegraph:
"Facebook worked with UK groups Press for Change and Gendered Intelligence to add 21 new options to ensure the list best reflected the ways UK users may choose to describe themselves.

"Gender identities are complex and for many people, describing themselves as just a man or just a woman has always been inadequate," said Professor Stephen Whittle, vice-president at Press for Change. The European Court of Human Rights has upheld the right to develop our gender identity, as key to our personal autonomy.

"By challenging the gender binary, Facebook will finally allow thousands of people to describe themselves as they are now and it will allow future generation of kids to become truly comfortable in their own skins."

www.telegraph.co.uk/technology/facebook/10930654/Facebooks-71-gender-options-come-to-UK-users.html[/quote]
Pah! Any fool knows that what ‘will allow future generations of kids to become truly comfortable in their own skin’ is to get rid of labels completely. Along with true acceptance of same sex attraction rather than it being something to hide, or be ashamed of. In other words removing any gender expectations from what we wear, what toys we play with, how we spend our spare time, what careers we choose, who we fall in love with, which parent gets to take extended leave when their baby is born etc etc etc.
Instead, a much more insidious pathway has been formed, one involving actively promoting physical alterations to our bodies - no doubt pushed through by those who seek to make their fortunes on the back of such services, total capture of gullible young people via the education system that operates on the basis that many youth want to rebel against their parents and what better way to do this than tell them their parents are abhorrent because they wont accept their child has miraculously changed sex.

So the judge has ok’d self ID, in defiance of govt policy, because EHRC said so..?

Reminds me of a comment a pp made (was it Nice Gerbil?) about being let down/deceived by the Govt.
Govt said they wouldn’t move to a self ID model in context of GRA reform. Perhaps this is because the EA seems to achieve it, in practical application regardless of the spirit.

@ArabellaScott

It's what the TRAs are now popping in to tell us, Mrs Wooster. I have given up trying to understand, myself.

Blimey. Though this does mean that single sex spaces are legal if the service providers can summon the courage to stand up for women? (I realise this is a huge IF)