The comparator for protected characteristic of gender reassignment

[JellySlice]

My understanding is that the comparator in this case is someone of the same sex.

Has this been legally clarified and established?

According to the judge in Ann's case, it is anybody else who uses the same service who isn't trans

Wasn't there another case a couple of years ago which established that it was non-gr'd people of the same sex? Which was one of the reasons AS was looking for a judicial review to ensure the guidelines were made clearer.

Same sex if no GRC. Opposite sex if GRC (I think)

Yes - www.bailii.org/ew/cases/EWHC/Admin/2013/3491.html

See para 68

In UK law, the legal sex of everyone without a GRC is their birth sex as recorded on their original birth certificate.

The recent Belfast court judgement, where a TW is struggling to find a NI expert to give an official medical diagnosis for their GRC application and so was bringing a case to see if the medical element could be ignored ie gender self-ID by the back door, says

”I am not persuaded that she [JR111 the TW applicant] is in an analogous position to her comparator, namely a non-transgender (or cisgender) woman; and, in any event, would consider the difference in treatment between the two to be objectively justified – whether one applies the manifestly without reasonable foundation or the fair balance level of scrutiny – on the basis of the aims identified in AP, Garçon and Nicot and of the analysis above in relation to the applicant’s Article 8 claim."

There is some discussion of who picks the comparator in the Belfast thread linked below. It would make sense in this case if the comparator (a non-transgender woman) was self-picked by JR111, the TW applicant.

What is most important is that, in spite of using this comparator, the judge rejected the idea that a TW without a GRC is a woman. They are not. Difference in treatment between the two is 'objectively justified'.

www.mumsnet.com/Talk/womens_rights/4249261-A-Belfast-court-judgment-has-been-hailed-by-as-a-landmark-moment-in-UK-transgender-rights-by-influential-campaign-group-Stonewall?pg=4

The comparator should be a person in as close to the same situation as possible, who does not have the PC of gender reassignment.

So for example in this case, the comparator for a tw wanting breast augmentation funded on the NHS happened to be a woman because it's not a surgery that men (who don't have a trans identity) would generally seek.

www.bailii.org/ew/cases/EWHC/Admin/2010/1162.html

When considering access to single sex spaces or services, a person without the PC of gender reassignment will be permitted or denied access depending on their sex, so the comparator for a tw with no grc is a man.

When considering access to single sex spaces or services, a person without the PC of gender reassignment will be permitted or denied access depending on their sex, so the comparator for a tw with no grc is a man.

You'll need to tell that to the judge in Ann Sinnott's case that ruled the exact opposite. A claim of discrimination would be brought against the service provider using the comparator of another person using that service. If it's a women's-only service, the comparator would be another woman without the protected characteristic of gender reassignment, with the claimant alleging discrimination against them because they have the protected characteristic of gender reassignment. The protected characteristic of sex wouldn't come into it. Again, that's from the ruling in Ann Sinnott's case

Yes I'm aware of what that judge reckoned.

It's bobbins isn't it? How can the PC of sex not come into it when talking about single sex services?

My understanding has always been that service providers can in practice never (or at least very rarely) tell whether a given transwoman service user has a GRC or not because the only way to find out is by asking for a copy of the service user's birth certificate, which people do not routinely show when looking to access services.

In practice therefore when a service provider refuses a transwoman access to a single sex female space, they should ensure that they have a valid reason under the Equality Act 2010 that would allow them to refuse access to someone with a GRC. If the person does not have a GRC they are unlikely to be able to bring a successful claim due to comparator issues, but the service provider will never know if they're going to get unlucky and attract the ire of one of the relatively small number of transwomen in possession of a GRC.

The judgment in the Ann Sinnott case is so frustrating!

So what precisely makes a TW a 'woman'?
A woman in UK law is a female of any age.
A man in UK law is a male of any age.

No one born female can be a TW and no one born male can be a TM.
A TW is a male with the protected characteristic of gender reassignment, a TM is a female with the same protection. Unless they have a GRC, they remain their legal birth sex.

The only thing that makes a TW a 'woman' in UK law for most but not all situations is them having a GRC. Exceptions apply, for single-sex spaces, even with a GRC.

So if a TM, a female without a GRC but with the protected characteristic of gender reassignment, is discriminated against by a woman only service designed for females, then yes, it seems obvious "the comparator would be another woman without the protected characteristic of gender reassignment, with the claimant alleging discrimination against them because they have the protected characteristic of gender reassignment."
So, for example, a TM without a GRC fleeing from violence and wanting to access a Women's single-sex refuge should not be discriminated against based on their gender reassignment, as their comparator is other females without the protected characteristic of gender reassignment.

But on what grounds could a TW, a male without a GRC but with the protected characteristic of gender reassignment claim to be discriminated against, if they were attempting to access a service designed for females only? On what legal basis would their comparator not be another male? Bobbins indeed.

Anyway, this is why the Belfast case is so important.
The judge rejected the idea that a TW without a GRC is a woman. They are not.
Difference in treatment between the two is 'objectively justified'.
TW (without a GRC) ANW.

@YourSexNotGenderIsOnFire

My understanding has always been that service providers can in practice never (or at least very rarely) tell whether a given transwoman service user has a GRC or not because the only way to find out is by asking for a copy of the service user's birth certificate, which people do not routinely show when looking to access services.

In practice therefore when a service provider refuses a transwoman access to a single sex female space, they should ensure that they have a valid reason under the Equality Act 2010 that would allow them to refuse access to someone with a GRC. If the person does not have a GRC they are unlikely to be able to bring a successful claim due to comparator issues, but the service provider will never know if they're going to get unlucky and attract the ire of one of the relatively small number of transwomen in possession of a GRC.

The judgment in the Ann Sinnott case is so frustrating!

The thing is I can't think of any circumstances where it would be a proportionate means of achieving a legitimate aim to exclude men from a space or service, where it would not also be a proportionate means of achieving the same legitimate aim to exclude tw, with or without a GRC.

If you set up a service for women and tw but excluded men, what would be the legitimate aim in the first place?

I'm not too bothered by the Ann Sinnott case, it was just a preliminary hearing so I don't think it created a precedent.

The thing is I can't think of any circumstances where it would be a proportionate means of achieving a legitimate aim to exclude men from a space or service, where it would not also be a proportionate means of achieving the same legitimate aim to exclude tw, with or without a GRC.

I'd be tempted to say that a single sex service which is segregated purely for social reasons rather than anything strictly related to sex or safeguarding etc. might lawfully exclude men but not transwomen - eg a women's networking event.

Well, that's that explained.

In practice, as far as I can tell, no-one knows what the hell the law is, so for maximum caution everyone is going "oh, you're transgender, do whatever you want all of the time", just in case. Anyone is being let into any "single-sex" space on demand, as just the act of trying to get into a single-sex space apparently qualifies you for "gender reassignment" protection.

Someone being refused might be able to sue directly - all the other service users impacted by their inclusion have a more complex path to recourse.

Which is why we're waiting for clear guidance from the EHRC about how organisations can safely run single-sex services.

But what would the legitimate aim be? You couldn't just say 'for social reasons', you'd have to come up with something that justified excluding men in the first place.

But what would the legitimate aim be? You couldn't just say 'for social reasons', you'd have to come up with something that justified excluding men in the first place.

I haven't really been to these kind of events so I may not be the best person to come up with a justification, but if it's an event that's meant eg to discuss the particular challenges that come from being a female manager, to share experiences of being a woman in a particular industry etc., then it's likely to be justifiable to exclude men who identify as men on the basis that they won't have any such relevant experiences IMO.

Obviously, we might know that transwomen only have experience of being a manager who is a transwoman, rather than being a female manager, but I don't think the courts would care.

I just don't even understand what the EHRC are thinking here:

Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. There are some exceptions permitting different treatment on the basis of gender reassignment, for example the exceptions related to single-sex services and associations. These exceptions do not hinge on whether or not an individual has a GRC. Any use of the exceptions permitting different treatment must be objectively justified, meaning that it must be a proportionate means of achieving a legitimate aim, and will therefore depend on the particular circumstances. While an individual’s possession, or not, of a GRC may be part of the evidence a court would consider in a gender reassignment discrimination case, it is unlikely to be a determining factor. The one exception to this relates to the solemnisation of marriage through religious ceremony in Part 6 Schedule 3 of the Act.

I'd like to pick their reasoning apart, but I don't even understand how they reached their conclusions if you see what I mean.

Yes, it's a shame Ann Sinnot's JR was refused.

I agree with her initial argument that paras 26 and 27 permit exclusion of tw without a GRC - because they are legally male, and para 28 permits exclusion of tw with a GRC - despite being legally female.

www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/7

EHRC argued that it came to the same thing anyway, which it does as far as single sex services are concerned, and the judge accepted that.

The trouble is, if para 28 must be used to exclude tw without a GRC then that implies they should be treated as women for the PC of sex.

I agree entirely LangClegsInSpace

The starting point is what protected class the evidence suggests the discrimination is "because of".

So not employing a TW because they are trans, the PC is GC and the comparator would be a hypothetic person who is not GC.

If it is about excluded from a single sex service (sc3 para27) then "the because of" is sex, because they excluded for not a particular sex. So the comparator would be someone of opposite sex (which will differ depending on whether they had a GRC).

The added complication is that the policy may also be to exclude trans people even with a GRC as well (which is allowable under sch3 para28). Obviously any decision to use the single sex exception or the GR exception needs to be objectively justified

Obviously any decision to use the single sex exception or the GR exception needs to be objectively justified

It should be objectively justified by the mere fact that the single-sex service is required to meet women's needs.

"If it is about excluded from a single sex service (sc3 para27) then "the because of" is sex, because they excluded for not a particular sex. So the comparator would be someone of opposite sex (which will differ depending on whether they had a GRC).

The added complication is that the policy may also be to exclude trans people even with a GRC as well (which is allowable under sch3 para28). Obviously any decision to use the single sex exception or the GR exception needs to be objectively justified"

Ann argued that in court. The judge was flatly clear in his response. That interpretation of the equality act is wrong in law.

"So if a TM, a female without a GRC but with the protected characteristic of gender reassignment, is discriminated against by a woman only service designed for females, then yes, it seems obvious "the comparator would be another woman without the protected characteristic of gender reassignment, with the claimant alleging discrimination against them because they have the protected characteristic of gender reassignment."

So, for example, a TM without a GRC fleeing from violence and wanting to access a Women's single-sex refuge should not be discriminated against based on their gender reassignment, as their comparator is other females without the protected characteristic of gender reassignment.

But on what grounds could a TW, a male without a GRC but with the protected characteristic of gender reassignment claim to be discriminated against, if they were attempting to access a service designed for females only? On what legal basis would their comparator not be another male? Bobbins indeed."

Again, from the judge in Ann's case; "However, it is in my view clear that Parliament has chosen to place transsexual persons in a different position to those of their "birth sex.""

And as the law only recognises two sexes that, by definition, means that any person with the protected characteristic of gender reassignment is not to be considered "of their birth sex" for the purposes of accessing single or separate sex services, or in other words, trans women aren't male when accessing single sex services. Or at least according to the ruling.

So not employing a TW because they are trans, the PC is GC and the comparator would be a hypothetic person who is not GC

No it wouldn't. Being GC , if that means "gender critical" isn't a protected characteristic. If an employer doesn't employ a trans person the comparator is any other candidate who isn't trans.

Again, from the judge in Ann's case; "However, it is in my view clear that Parliament has chosen to place transsexual persons in a different position to those of their "birth sex.""

Wasn't that just in relation to the point about whether it follows that exclusion of transwomen (including those with a GRC) is justified if single sex provision is justified?

I don't think people should get too worried about the outcome of Ann's case. From what I can gather her arguments were not well represented and the judge got it wrong.

But it was a preliminary hearing, seeking permission to go to judicial review, so it doesn't create any sort of legal precedent. It can't be quoted in future cases as justification for interpreting the EA in a certain way.

And meanwhile Ann has laid out some very clear arguments that can be used in future cases.

I think her case failed mainly because she couldn't point to specific individuals who had suffered a detriment. The courts are not keen on making judgments in the abstract. They don't care if EHRC staturory guidance badly misrepresents the law. They only care if it can be shown that organisations have followed that guidance and as a result have treated some individuals unlawfully because of a protected characteristic.

Sorry my above post not assist by 2 typos- GC should be GR -gender reassignment. sorry for confusion.