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

The law fudges reality and logic, doesn't it? That is why the reading of it is clear as mud too, with different levels of reality and logic. You're not sure which bit of reality to suspend or put in play at any given time.

According to the equality act, a man is of the male sex, and a woman is of the female sex, irrespective of what gender cap they wear. That is the sex characteristic.

Then a man or woman can be treated differently to others of their own sex, depending on what gender cap they wear. I had thought those who wished to formally do that needed to undergo formal gender reassignment (as in a minimum bar of some official paperwork). Judge said differently to their sex and didn't say of the other sex.

However, the EHRC said there was no difference between people who had a gender reassignment certificate or those without who wished to be treated as if they had one. Was that someone's personal belief or based on something?

There is another thing (among many) which I don't understand. If a transman wished to avail of a woman's shelter, they wouldn't be barred on sex characteristic. Would they be barred because of their gender and would they have to go to a male shelter?

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."

What does 'all practical purposes' mean, I wonder? A transexual male with male reproductive organs are not for all practical purposes indistinguishable form a non transexual female. They can commit crimes only males can do, transexual or otherwise.

Endless quotes about what has been said or meant before aren't going to help us if judges, let alone campaign groups, are continuously saying the opposite.

Short of writing to Liz Truss and asking her to again state what the single sex exemption means in relation to support services, I can only think setting up a petition on the parliamentary web site asking that parliament clarifies this.

Or at least this is what I thought for a moment and then realised given how embedded the rainbow coalition is in upper echelons of power in the UK, that this could just back fire.

So this just means a lifetime of digging for each new court case, year after year, until FWR just becomes a story told about the old days when women used to think for themselves.

If that's what it takes, @stumbledin . I'm buying coffee's for grass roots movements which are standing up for women and girls in a few places. In the not so distant past, women in Ireland have had to watch men and their enablers allow women be shamed and abused because of our female biology (and terrorised by being incarcerated and having to work for free for being 'fallen'). The state sanctified women having to give birth under any cost, even if it meant dying or carrying a child who has no chance of survival to full term. Almost uniquely in Europe, to have their hips deliberately broken in childbirth when C-sections were safer. Male doctors treating women like cattle and the state enabling all that. In light of that, I'm even more unwilling to go along with this fiction anywhere now. I won't ever be pretending that this isn't more of the normalisation of women being treated like detritus and even men adopting roles being accepted as more deserving of rights than women.

Daylight, daylight and daylight. Letters, campaigning and petitions. Not a penny to those who support the repression of the rights and even recognition of women. In light of what I've said, you can take in your stride that the priorities of many establishment men like judges, doctors and parliamentarians etc. will be to naturally side with all sorts of other males. In all their guises. They think the world is their playground. Those who stand up for rights of women and girls, as equal and people too, shine more brightly in contrast with the less fragrant ones.

However, the EHRC said there was no difference between people who had a gender reassignment certificate or those without who wished to be treated as if they had one. Was that someone's personal belief or based on something?

EHRC said the pc of GR applied, regardless of GRC status.
GRC is the mechanism of changing your legal sex, but EHRC seem to qualify GR as a mechanism also, because including a person with pc of GR and GRC in opposite sex services whilst excluding person with GR without GRC, is discrimination on grounds of GR.
Then they also discussed physiological attributes. I’m not sure how including a male person with i) the pc of GR, and ii) is indistinguishable from a woman, in a single-sex service, but denying another male with i) but not ii) is not also discrimination on the grounds of GR. Here, it seems, EHRC say that provided the criteria for ii) is being indistinguishable, as opposed to having a GRC, it’s not discrimination.

I know they keep saying there is no automatic inclusion. But, I think they’re arguing if you choose to include GRC holders, you must also include non-GRC holders (provided they have the pc of GR), else this is discrimination on the basis of GR. So, this enables self-ID. To avoid this, you have to exclude anyone with pc of GR, via s26,27 and 28 of the schedule. That is the lawful exclusion of the pc of GR from a single-sex service, provided the conduct is proportionate and legitimate.

If a SP invokes 26 and 27 only, to provide a single-sex service, it must include people with the pc of GR, regardless of whether they have a GRC. This is where it’s confusing, because this is where having a pc of GR means you are to be treated differently from other people of your birth sex (who would automatically be excluded from a single-sex service) even if you haven’t legally changed sex. But, it does not mean an automatic inclusion into the single-sex service! It just means that you can’t say someone with a GRC can be included, but those without can’t be.
Which means that the schedule to invoke a single-sex service is useless if it only relies on s26 and 27, as a TW with a GRC would be included in the service, but a TW without, wouldn’t.
What I am wondering is if we can successfully challenge SPs who advertise their services as single-sex, if they only invoke s26 and 27*; whether this means they are not duly considering the pc of sex in a single-sex service, or whether a service user can claim harassment/hostile environment, etc.

*Perhaps this is what orgs do, to make a single-sex service inclusive of trans people. I wonder if Edinburgh rape crisis only invoked s26,27 for their CEO position. EHRC consider doing this to be within the law, judge seems to agree. This is a focus for challenge, no?

Which means that the schedule to invoke a single-sex service is useless if it only relies on s26 and 27, as a TW with a GRC would be included in the service, but a TW without, wouldn’t and this is discrimination, hence unlawful.

thepuredrop, thank you for that patient explanation. It just seems that there is so much sophistry around something which is such a fiction at it's core.

AS I said up thread, endlessly quoting other groups / so called authorities isn't getting us any where.

We need to devise an action plan.

Otherwise we will be having this same discussion if not everyday every week.

@Cailleach1

thepuredrop, thank you for that patient explanation. It just seems that there is so much sophistry around something which is such a fiction at it's core.

IANAL, this is my understanding, only!

It doesn't make any sense though to say that allowing people with a GRC, but not those without (but who also identify as trans) to use a service for the opposite sex is discrimination on grounds of GR.

The definition of the "gender reassignment" protected characteristic is clearly set out in the Equality Act, and clearly covers anyone who identifies as trans, whether or not they have a GRC.

However, "discrimination" means treating someone differently BECAUSE they have a protected characteristic, compared to someone who does not have it - for example, it would be unfair to sack a male purely because he starts identifying as a woman (i.e. he has the PC of GR) if you would NOT sack a non-trans-identifying man in the same circumstances (i.e. they haven't committed misconduct or anything), so the sacking is based on their gender reassignment.

So a situation where someone with the PC of GR and a GRC IS allowed into a female space, but someone with the same PC but no GRC is NOT, surely can't be discrimination "on the basis of GR", as it's clear it is NOT the GR characteristic which is causing the latter person to be excluded (otherwise it would also cause the former to be excluded), but something else - namely the lack of GRC, and the way this interacts with the sex-based exceptions in the EqA and the PC of SEX. But as this relates to an exception clearly set out in the EqA as NOT counting as "discrimination" (in s26-27), this is surely legitimate. Indeed the exclusion is nothing to do with their trans/GR status, but is to do with their sex (not being female). Whereas the person WITH the GRC, though also not biologically female, could legitimately be included in some circumstances where the other wouldn't, due to their legal sex being female and them therefore falling under s28 instead of 26-27 and therefore having a higher bar for exclusion.

Similarly, in the employment example above, if you had two transwomen working for you, and fired one (e.g. for misconduct) but not the other, it would be very difficult to claim the firing was discrimination based on GR, because you did NOT fire the other person with the PC of GR, but you WOULD fire someone without GR in the same circumstances. So clearly the reason for firing them (or the reason for excluding them above) was NOT the GR status but the other reason (misconduct, or in the previous example, not having a GRC and therefore not falling into s28).

If this is genuinely what the judge was claiming, I think he must have been very muddled

@stumbledin

AS I said up thread, endlessly quoting other groups / so called authorities isn't getting us any where.

We need to devise an action plan.

Otherwise we will be having this same discussion if not everyday every week.

If my understanding is correct, or at least how the EA is being used by TRAs wrt trans-inclusion in single-sex services, then that’s a starting point, isn’t it? We’d obvs need to look at how they’re using the occupational exclusion too. But, it means we can lobby Parliament for new legislation to mandate single-sex provision and simultaneously, embolden service providers to use s26, 27 AND 28, to ensure single-sex spaces. We can question why they’ve chosen to create a single-gender space via 26 and 27 only, and whether this is really meeting the needs of their service users.

And whether if using only 26 and 27 makes them vulnerable to claims of harassment by service users who expected a single-sex service, but got single-gender.

Cos that’s how the TRAs have been working: lobbying Parliament, speaking to employers about how EA can be used for trans-inclusion, training them up to write policies and getting paid to do all this.
We can do the same by using EA for single-sex service provision.

TRAs have no more a right to single-gender service than we do to single-sex service. Both are allowable, not mandated. NHS is a good one, it’s committed to being single-sex, but operates as single-gender. We can question why and encourage them to actually be single-sex.

Could you not also say that allowing a man (legal definition is a male of any age, isn't it?) into a supposedly woman (legal definition is a female of any age?) only space because of GR, in turn discriminates against those of the male sex who don't have GR?

It may not feel 'so women' only to women using the services. Those women who for all practical purposes see a man when they see a male. If said males are distinguishable, does that mean judge said they shouldn't be in there?

I wonder if a judge would have declared the woman who kept taking selfie pictures of her erect penis in a women's refuge passed the bar of being indistinguishable from the other women for all practical purposes.

Laws which allow male encroachment into women's boundaries seem to be way more flexibly interpreted in men's favour than those designed to allow women safety, dignity and privacy. Justice may not be so blind.

Anyway, those are my initial thoughts.

@Cailleach1

Could you not also say that allowing a man (legal definition is a male of any age, isn't it?) into a supposedly woman (legal definition is a female of any age?) only space because of GR, in turn discriminates against those of the male sex who don't have GR?

It may not feel 'so women' only to women using the services. Those women who for all practical purposes see a man when they see a male. If said males are distinguishable, does that mean judge said they shouldn't be in there?

I wonder if a judge would have declared the woman who kept taking selfie pictures of her erect penis in a women's refuge passed the bar of being indistinguishable from the other women for all practical purposes.

Laws which allow male encroachment into women's boundaries seem to be way more flexibly interpreted in men's favour than those designed to allow women safety, dignity and privacy. Justice may not be so blind.

I reckon as a sex-exemption is already invoked, then perhaps not. I dunno, really.

I just think if this is how TRAs are using the EA to say something is single-sex, but make it single-gender, then we can also use it to make a single-gender service, single-sex instead.

The EA doesn’t oblige SPs to make a service single-sex, just allows it. It’s the same for single-gender, allowable, but not obliged.

So we just need to start challenging SPs ‘why single-gender? Why not single-sex? You could be vulnerable to harassment claims.’

And if males with GR are allowed in at all, do they incontrovertibly have to be indistinguishable from women for 'all practical purposes', I wonder?

How or who would have to judge that? It is such a strange thing to have said about any women. It is like 'passing' is what you're after. And that is not offensive to women. Is the next an option 'to pass' as one holding one of the other protected characteristics also available? It would be insulting.

Yes, I was wondering that myself why EHRC said offering a service to GRC holders only would be discrimination, but offering a service to ‘passable’ TW isn’t.
But hey-ho, if that’s what the EHRC think, that’s another reason how we persuade SPs that single-gender should be changed to single-sex: offensive and places an unnecessary burden of passing, which is subjective and still could leave them vulnerable to harassment claims.
We have to out-Stonewall Stonewall. Change their thinking to reflect our values.

@Cailleach1

And if males with GR are allowed in at all, do they incontrovertibly have to be indistinguishable from women for 'all practical purposes', I wonder?

How or who would have to judge that? It is such a strange thing to have said about any women. It is like 'passing' is what you're after. And that is not offensive to women. Is the next an option 'to pass' as one holding one of the other protected characteristics also available? It would be insulting.

I’d been wondering about that. Indistinguishable, to whom? Some people are more observant that others.

And what are the words “for all practical purposes’ doing in there? It is not like legal documents to contain superfluous fluff words. They must have some actual, legal meaning.

*change SP’s thinking to reflect our values by beating Stonewall at their own game.

"However, the EHRC said there was no difference between people who had a gender reassignment certificate or those without who wished to be treated as if they had one. Was that someone's personal belief or based on something?

I think it was based on the fact the EA doesn't mention gender recognition certificates. The judge asked where in law the AEA had got the claim that service providers should treat grc holders differently from those without, as the EA doesn't say that.

What I don't understand is why spaces and roles and services that were generally understood to be female only a few years back are what seems to be a major focus for trans rights.

I don't get why there doesn't seem to be much action at all in addressing male violence or getting men to be less awful to men who are 'different'. That would help men and boys and women and girls.

In fact the reality of how life is for women and girls when it comes to our experiences is just, dismissed. Not of interest.

EG the argument that bad men will rape you anyway so essentially what's the problem. And this is supposed to be a winning argument.

Of course there are plenty of trans people who see things as women on here do. They used to be called 'truscum' I believe. They're not the ones coming over to MN to point and say haha like that kid on the Simpsons. At some women who are worried about the rights and safety of women and girls in general.

I agree Cailleach - a service provider who allows entry to any male who says the magic words ("I am woman") but not to other males is likely to find themselves on dodgy ground, as it could indeed be considered discriminatory to the others. And unlike the GRC vs no GRC situation, there's no legal provision for them to be treated differently as s28 isn't relevant in that case, and the EqA PC of GR only protects against being treated LESS well than someone of the same sex (still male in this case) without the PC, but it doesn't require them to be treated more favourably, and definitely doesn't require them to be treated as female!

As for all the stuff about being indistinguishable from a female, that makes absolutely no sense to me in this context though, and just makes me think the judge understands neither the situation, nor the law properly. If he understood the situation, he would know a) TW who are genuinely indistinguishable from women are vanishingly rare at best, and b) using appearance to determine access would be completely unworkable due to its subjectivity (and the risk of people kicking off if they were told they can't come in cos they don't "pass"), the lack of checks in many scenarios (is the local pool really going to have someone at the changing room door checking who "passes"?) and the fact many/most people with GRCs would fail that test but still expect access in many situations per s28.

If he understood the law, I don't know where he's got that idea from, as neither the EqA nor GRA mention this as far as I recall, and what they do say seems to conflict with that... (I do remember reading that wording though, but it was somewhere quite different - maybe an old case? - but I can't remember where it was from).

I do wish the judge had read the Hansard discussions on these two acts, as well - they do shed some light on the original intentions, and also it highlights how many of the issues we're facing now were flagged up as potential risks by some MPs and lords, and are exactly what they were trying to ensure that the legislation avoided doing!

Agreed @ahagwearsapointybonnet. Judge said he might have been inclined to reach a different outcome had there been evidence of SOs acting illegally or women being harmed, so those are pointers for strategy moving forward.
Given that judge was inferring Parliament’s intention when legislating EA, I wonder if it would be useful strategy to also makes references to Hansard, moving forward.