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."