Making sense of the EHRC judicial review

[ChristinaXYZ]

Great attempt at explanation from Sarah Phillimore with additional commentary by someone who was there

I take to heart the following:

"The EHRC thus argued that their position had always been clear; a TP can be excluded from a service where that is justified, and the EHRC had taken steps to bring that to the attention of service-providers whose guidance wrongly suggests that a TP must ALWAYS be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others."

sarahphillimore.substack.com/p/making-sense-of-the-ehrc-judicial

Also, EHRC say they have all along acknowledged that there is a balance to be had between the needs of women and those with pc of gr. They even claim to have told organisations who have been ssying that it is always unlawful to exclude a trans person from a service of their acquired gender, that they are wrong. That's the left hand. Meanwhile the right hand was writing school guidence saying it was always illegal for a girls school to decline admission of a trans girl.

Yes they did, and children cannot legally transition. So they have been giving unlawful advice.
And yet somehow Anne's case didn't pass.

Single sex spaces and services cannot exist if they can be forced to include people of the opposite sex, and self ID will only make this situation worse.

The case by case basis is not practicable. It places responsibility for gatekeeping on front facing staff, and creates a threat of potential legal action for carrying out a lawful activity.

[quote stonecat]@Iwishihadariver

Also, I love your username. [/quote]
Thank you stonecat, thanks to Joni Mitchell I can always sing my username instead of counting to 10 when I read a goady post....

Summarising, my own understanding of judge's conclusions, as I am easily confused:

A GRC makes no difference. For a service provider to retain any space specific to natal females there needs to be justification.

EHRC had originally implied there is never ANY justification for natal female only spaces in its guidelines.

Having now admitted they got that wrong, there is no case to answer against the EHRC as they have held their hands up to this as an error.

Is that it in a nutshell or have I misunderstood, or missed something?

I'm just amazed that EHRC (and other organisations) couldn't see the obvious conflict of interest in signing up to the Stonewall scheme. If you commit to complying with the Stonewall requirements, you are handing some of the governance of your company/organisation over to Stonewall.

Why couldn't they see this? There seems to be a huge blind spot to this obvious conflict of interest in all the businesses, government departments and organisations which have signed up to these schemes.

I'm (almost) ashamed to say I chase after the neighbourhood cats with a nerf gun (water ammo before anyone shouts) to keep them away from my veggie garden & bird feeders. I also use a lot of the swear words I've learnt on FWR. I also love your cat as it's not in my garden

'What is the point of requiring a TP to jump through hoops to get a GRC if this is not relevant to any argument about the provisions of the Equality Act?'

Yes, I think it would be really useful to everyone to understand this.

'We urgently need to review the interplay between the GRA and the EA and be clear what we mean by ‘gender’ and what we mean by ‘sex’.

I think we need clear categories of service provision where those offering the service can be confident that they have clear reasons for excluding those who claim a female ‘gender’ but possess a male sex.'

Absolutely agree.

It's still about as clear as a muddy river on a dark day in November.

'The J accepted without Q the hidden assumption that GR discrimination trumps Sex discrimination. No where does the EA say that.'

They also claimed that whether a person has a grc makes a difference in decisions about admitting them to a SSS. The EHRC and judge disagreed with that too. So I'm a bit confused why quite a few gc feminist response to this case is 'this shows we need to repeal gra'. If anything it shows there is no interaction between GRA and EA exemptions.

So what is the point of a GRC?

It's no longer needed for two people of the same sex to marry, which is why the GRA was originally passed, so what is the point of the GRA? If it no longer has a purpose it can be repealed.

@Manderleyagain

Thanks for sharing this article. Basically the case 'failed' because it wasn't needed (as the broad position that AEA posited was agreed by the EHRC?) And it was out of time for challenge.

I'm not sure that's quite right. I followed the live tweeting and I got the same feeling that the person who added their thoughts to the blog got (but I wasn't watching live). AEA made it sound like they were arguing that it would never (or almost never) be lawful to admit a trans woman to a female only service. That seemed to be their aim. EHRC and judge didn't agree at all.

They also claimed that whether a person has a grc makes a difference in decisions about admitting them to a SSS. The EHRC and judge disagreed with that too. So I'm a bit confused why quite a few gc feminist response to this case is 'this shows we need to repeal gra'. If anything it shows there is no interaction between GRA and EA exemptions.

I think the judge indicated that 'in exceptional circumstances' in the COP was possibly unlawful. That might be something to persue but it sounds like we will need cases of specific women being disadvantaged.

I'm even more confused. Doesn't this effectively introduce self ID through the back door? There should be no allowance at all for male bodied people in women's spaces without a GRC.

It also blows my mind that we're here fighting for single sex spaces to preserve girls' and women's safety and dignity - and are told this isn't allowed - but men have places like the fucking Garrick club - literally a social club - where women aren't admitted at all so the menz can chat and drink in peace and that's just dandy. Isn't that the definition of patriarchy?

Its almost as though people have decided to ignore everything that was said during the case and what the judge said. This is top drawer delusion.

Disgusted People haven't read the actual finding yet.

I think it was worth Ann Sinnott taking the action to get that clear statement.

yes that and the change in leadership means a huge change at the EHRC

legalfeminist.org.uk/2021/05/10/aea-v-ehrc-an-explanation/

[quote justicewomen]legalfeminist.org.uk/2021/05/10/aea-v-ehrc-an-explanation/[/quote]
Thanks for that link, justice.

I wonder where this leaves police forces who have no clear statements on whether male officers identifying as women may search women. I did some FoI requests as part of Standing for Women’s investigation into the issue, and the responses I received were that they had no policies. Nor did they have any knowledge of how many officers within their force claim to be the other sex.

I also wonder wether this may be one of a very few cases where a GRC makes a difference (as opposed to PC of GR without a GRC).

Police forces should be bound by PACE, fallin and PACE Code A 3.6 is quite clear: “any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or any other item concealing identity, may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it.”

Code C allows the person being searched to self-ID their gender and to request a search by an officer of their preferred sex, but it does not allow an officer to do the same.

They also claimed that whether a person has a grc makes a difference in decisions about admitting them to a SSS. The EHRC and judge disagreed with that too.

This was not what the EHRC said in October 2018, at the time of the GRA consultation.

I don't seem to be able to add a screenshot of what they said but it was:

At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.

www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language

They arguably stated this for two reasons, as an ideologically captured body they wanted to provide a reason for why it should be made easier to get a GRC, and also they were put under pressure by feminists concerned about sex based rights around the GRA and self ID.