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?

@LowKeyLockee

"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.

But many, actually most, people with the protected characteristic of Gender Reassignment are not (by any notion) "transsexual", as there is no medical or surgical intervention.

Also, this point was only to do with those with a GRC, who I agree have been placed in a different category than the group of their birth sex, though not the same group as the opposite sex, so they are stuck in a limbo.

Some info on comparators - from Citizens Advice.

"If you want to show you’ve suffered direct discrimination, you need to compare your treatment with the treatment of someone else who doesn't have the same protected characteristic as you. The Equality Act calls this person a comparator.

The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.

What's meant by someone in a similar enough situation?
It’s not necessary for you to be in an identical situation as the comparator. But there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else."

www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/comparators-in-direct-discrimination-cases/

So you can pick your own comparator, you just need sufficient similarities to show it was possessing one particular protected characteristic that made all the difference.

A hypothetical example. Imagine a group of people with pretty much exactly the same qualifications, skills and experience go to an interview where they all perform and score equally well. The employer uses the exemptions under the Equality Act to ask for female only candidates.

A straight white female gets the job.
The black female interviewee might claim she was discriminated against because, in all other respects, she was like the winning candidate except for her protected characteristic of race.
The lesbian female likewise because of her sexual orientation.
The deaf female because of her disability
The Muslim female because of her religion or beliefs.
The pregnant female because of pregnancy/maternity.
The 60 year old female because of her age.
The TransMasc-without-a-GRC female because of the protected characteristic of gender reassignment.

What then about a TW-without-a-GRC male? Is that discrimination because of the protected characteristic of gender reassignment or rather 'something else'?

One of these is not like the others...
🤔

This is where the recent request for JR in Belfast makes the legal position of TW-without-a-GRC clearer than the Sinnott request and shows that the comparator for a TW-without-a-GRC is not a woman.

”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..."

After all, what qualities or 'sufficient similarities' do all women and transwomen share that are shared with no men or transmen?

TW-without-a-GRC are Not W.

That makes sense.

Yes, ANewCreation, that makes sense. I cannot think of any situation where the comparator for a TW (ie a male) trying to access women's sex-segregated services would be anything but another man.

I cannot comprehend why the judge said "... 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..."

Another thing that needs to be pinned down, aside from "is the TW's comparator male or female" - what about the converse?

IF, as the judge said, the comparator to a transwoman is a non-transgender woman, then the comparator to a transman is a non-transgender man.

In which case, the "TransMasc-without-a-GRC female" would have no protection in ANewCreation's scenario.

Either the transwoman has the right to the job, or the "transmasc". Can't be both.

Or is this another case of Schrödinger's trans? An individual can choose male or female at any instant depending on which is most advantageous? Meaning no-one invoking "trans" can be restricted from anything sex-specific ever?

The exceptions for occupational requirements work differently from the single sex service exceptions.

www.legislation.gov.uk/ukpga/2010/15/schedule/9/part/1/crossheading/general

This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.

www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/26/1/1

So you could advertise a job for female candidates only - this would appear to include women, tm without a GRC and tw with a GRC, but exclude men, tm with a GRC and tw without a GRC.

Or you could advertise a job only open to female candidates without the PC of GR. This would appear to include women but exclude tm with or without a GRC, tw with or without a GRC, and men.

There doesn't seem to be a lawful way of advertising a job for women and tm without also including tw with a GRC (and excluding tm without one).

One important thing to note is that you can advertise for candidates who are not trans but it's not lawful to advertise only for candidates who are trans. So a trans support organisation could not specify that a counsellor role is only open to trans people.

How strange that the activists are not focussing on changing this part of the EA. I don't think it would be too difficult to change it so you could advertise for trans applicants only or only applicants who are not trans. I can't imagine many people would have a problem with such an amendment so it would seem like an easy win

”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"

It hinges on the fact you get to pick your own comparator and each case is different, so the comparator may be different.

I think the judge's words only make sense if it was JR111 (or, I would guess, more likely their legal team) who picked the comparator - so the thought process was something like: 'my situation is exactly comparable to that of a cisgender woman, we have so many similarities, the crucial difference between us is that she is a non transgender woman and I am a transgender woman so different treatment is solely on the protected characteristic of gender reassignment'

And the judge went "er, I think you as a TW-without-a-GRC have picked the 'wrong' comparator in picking a 'cisgender woman' because you're too different, there aren't sufficient similarities (your situations are 'not...analogous')
And, even if we were to go with your version, it's only right that female women and males-without-a-GRC-who-call-themselves-women are treated differently in law because they are objectively different."

TW without a GRC are NW.

@PearPickingPorky

"But many, actually most, people with the protected characteristic of Gender Reassignment are not (by any notion) "transsexual", as there is no medical or surgical intervention."

The judge addressed this during argument. Under the Equality Act anybody who is undergoing, proposing to undergo, or has undergone, any part of a process to change their sex by any method they choose has the protected characteristic of Gender Reassignment. And that under the Equality Act anybody with the protected characteristic of Gender Reassignment is a 'transsexual' for the purposes of the Act.

"Also, this point was only to do with those with a GRC, who I agree have been placed in a different category than the group of their birth sex, though not the same group as the opposite sex, so they are stuck in a limbo."

No, that was Ann's argument. The judge said in his ruling that that interpretation of the Equality Act was wrong in law. That it wasn't correct to claim that the 26 or 27 exemptions that creates a separate or single sex service automatically excludes a trans person without a GRC who is, will be, or has transitioned to the sex that the service provides a service to. That the claim that the 28 exception was there only to bar people with a GRC was also wrong.

The judge's statement in striking down Ann's argument was that it's clear that when accessing a single or separate sex service, Parliament intended that anybody with the protected characteristic of Gender Reassignment (and therefore is a 'transsexual' for the purposes of the Act) be treated as having a sex different to the one assigned to them at birth. i.e An AMAB individual with the protected characteristic of Gender Reassignment is, for the purposes of the Equality Act, a transsexual woman and Parliament intended that they be considered female when it comes to accessing single or separate sex services.

@ANewCreation

"This is where the recent request for JR in Belfast makes the legal position of TW-without-a-GRC clearer than the Sinnott request and shows that the comparator for a TW-without-a-GRC is not a woman."

That case wasn't about accessing single or separate sex services. The question the OP asked, and the fact of law that Ann had clarified in court, is what is the comparator for a non-GRC trans person accessing a separate or single sex service. And from the judge; that when accessing a single or separate sex service on the mainland of the UK a person with the protected characteristic of Gender Reassignment is to be considered to be the opposite sex from their 'birth sex', and that the comparator could only be another service user, whether real or hypothetical.

@LangClegsInSpace

"One important thing to note is that you can advertise for candidates who are not trans but it's not lawful to advertise only for candidates who are trans. So a trans support organisation could not specify that a counsellor role is only open to trans people"

That's incorrect in law as it would fall under s.158-159 of the Equality Act.

s.158 para 4 (a) says that if the positive action is to do with recruitment or promotion then it is dealt with by s. 159.

s.159 would permit an employer to say something like 'we are particularly keen to hear from trans applicants as they are underrepresented in our organisation.'

It would permit an employer to take positive action by hiring a trans applicant over a non-trans applicant where both are equally qualified.

s.159 does not permit an employer to advertise a job as only open to trans applicants.

The judge said in his ruling that that interpretation of the Equality Act was wrong in law.

This was a preliminary hearing seeking permission for a full JR hearing. No case law has been created.

It would really help, LowKey, if you would link to the parts of the Ann Sinnott judgment you are relying on for your argument, or at least quote the exact words of the judgment rather than giving your own summary.

I notice that when you are talking about definitions with which I am familiar, as in the protected characteristic of gender reassignment, you seem to be inserting your own phrases eg 'by any method they choose' which has the effect of making me question your other assertions.

That it wasn't correct to claim that the 26 or 27 exemptions that creates a separate or single sex service automatically excludes a trans person without a GRC who is, will be, or has transitioned to the sex that the service provides a service to.

Is this not NecessaryScene's Schrödinger's trans? An individual can choose male or female at any instant depending on which is most advantageous? Meaning no-one invoking "trans" can be restricted from anything sex-specific ever?

The argument on the non-analogous position of TW-without-a-GRC compared to non transgender women in the Belfast permission to proceed to JR is significant, most particularly as it involves Article 8 rights wrt right to respect for private and family life. This is what some of the protections in the GRA around not disclosing a GRC were precisely designed to facilitate. Don't handwave it away. Remember it's a 'landmark' ruling according to Stonewall.

I imagine the OP, like me, is not only concerned about the comparators for single-sex spaces but other instances where TW-without-a-GRC are claiming to be 'just like' non transgender women - apart from the protected characteristic of gender reassignment.

The claimant chooses the comparator but, as in the Belfast case, the judge may not be persuaded that the choice is analogous.

”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."

Our birth sex is our legal sex.
In the Equality Act 2010, a Woman is a female of any age and a Man is a male of any age.

So, for LowKey or anyone else, at what point does a TW actually become a 'woman' in UK law?

And in the female only job interview scenario above, while it is obvious that all the other candidates could use the straight, white, winning female as a comparator - I am a similarly qualified female just like her apart from the fact that I am black/a lesbian/Muslim /deaf/60/pregnant/a non GRC'd TransMasc with the protected characteristic of gender reassignment - but who would be the analogous comparator for the TW-without-a-GRC male if they were to successfully claim discrimination?

[quote LowKeyLockee]@PearPickingPorky

"But many, actually most, people with the protected characteristic of Gender Reassignment are not (by any notion) "transsexual", as there is no medical or surgical intervention."

The judge addressed this during argument. Under the Equality Act anybody who is undergoing, proposing to undergo, or has undergone, any part of a process to change their sex by any method they choose has the protected characteristic of Gender Reassignment. And that under the Equality Act anybody with the protected characteristic of Gender Reassignment is a 'transsexual' for the purposes of the Act.

"Also, this point was only to do with those with a GRC, who I agree have been placed in a different category than the group of their birth sex, though not the same group as the opposite sex, so they are stuck in a limbo."

No, that was Ann's argument. The judge said in his ruling that that interpretation of the Equality Act was wrong in law. That it wasn't correct to claim that the 26 or 27 exemptions that creates a separate or single sex service automatically excludes a trans person without a GRC who is, will be, or has transitioned to the sex that the service provides a service to. That the claim that the 28 exception was there only to bar people with a GRC was also wrong.

The judge's statement in striking down Ann's argument was that it's clear that when accessing a single or separate sex service, Parliament intended that anybody with the protected characteristic of Gender Reassignment (and therefore is a 'transsexual' for the purposes of the Act) be treated as having a sex different to the one assigned to them at birth. i.e An AMAB individual with the protected characteristic of Gender Reassignment is, for the purposes of the Equality Act, a transsexual woman and Parliament intended that they be considered female when it comes to accessing single or separate sex services.

@ANewCreation

"This is where the recent request for JR in Belfast makes the legal position of TW-without-a-GRC clearer than the Sinnott request and shows that the comparator for a TW-without-a-GRC is not a woman."

That case wasn't about accessing single or separate sex services. The question the OP asked, and the fact of law that Ann had clarified in court, is what is the comparator for a non-GRC trans person accessing a separate or single sex service. And from the judge; that when accessing a single or separate sex service on the mainland of the UK a person with the protected characteristic of Gender Reassignment is to be considered to be the opposite sex from their 'birth sex', and that the comparator could only be another service user, whether real or hypothetical.

@LangClegsInSpace

"One important thing to note is that you can advertise for candidates who are not trans but it's not lawful to advertise only for candidates who are trans. So a trans support organisation could not specify that a counsellor role is only open to trans people"

That's incorrect in law as it would fall under s.158-159 of the Equality Act.[/quote]
You've said that already further up and you were corrected, but you're ignoring that and saying it again.

Having the protected characteristic of Gender Reassignment under the Equality Act does not give you the rights/protections of the opposite sex. The GRA does that, but only for those with a GRC, and only in limited circumstances, mainly where it would not negatively impact females by a male TW being there, but also sometimes where it wouldn't negatively impact a male by a FtM getting a GRC (eg primogeniture).

The judge in Ann's case did not say that a male-sexed trans person without a GRC would be considered to be female sexed for the purposes of accessing single-sex spaces and services. You are twisting it into what you would like him to have said.

@LangClegsInSpace

"This was a preliminary hearing seeking permission for a full JR hearing. No case law has been created."

It's a Section 8.2.3 Court Order as per the updated JR Guide

@ANewCreation "It would really help, LowKey, if you would link to the parts of the Ann Sinnott judgment you are relying on for your argument, or at least quote the exact words of the judgment rather than giving your own summary."

I was going from the SexMatters twitter thread on this. I'm not even aware that a written judgement has been made available yet, but I'll take the words of somebody who was present and recording what happened

"I notice that when you are talking about definitions with which I am familiar, as in the protected characteristic of gender reassignment, you seem to be inserting your own phrases eg 'by any method they choose' which has the effect of making me question your other assertions."

"s7 Gender reassignment; (1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

The Act clearly indicates it's the individual's personal choice to how they change any attribute of sex as the Act is based on, and must be compliant, with HRA 1998 which sets out that it's the right of any individual to determine their sex in terms of themselves as part of their identity. This is an autonomous Article 8 right to privacy, and one at the discretion of the individual. Hence, 'by any method they choose'

"Is this not NecessaryScene's Schrödinger's trans? An individual can choose male or female at any instant depending on which is most advantageous? Meaning no-one invoking "trans" can be restricted from anything sex-specific ever?"

Incorrect. As the judge himself stated, the relevant paragraph 28 of the Act allows for a service provider to stop a trans person using a separate- or single- sex service provided that the service provider meets the objective test set out in that paragraph to the bar intended by Parliament when the Act was created. This intent is seen in the Explanatory Notes.

"The argument on the non-analogous position of TW-without-a-GRC compared to non transgender women in the Belfast permission to proceed to JR is significant, most particularly as it involves Article 8 rights wrt right to respect for private and family life."

Which has nothing to do with the Equality Act and the right to access separate or single sex services. As the judge said, Parliament intended that any trans person attempting to access such a service would have a legal sex different to the one assigned to them at birth.

"And in the female only job interview scenario above, while it is obvious that all the other candidates could use the straight, white, winning female as a comparator - I am a similarly qualified female just like her apart from the fact that I am black/a lesbian/Muslim /deaf/60/pregnant/a non GRC'd TransMasc with the protected characteristic of gender reassignment - but who would be the analogous comparator for the TW-without-a-GRC male if they were to successfully claim discrimination?"

Again, not material to the discussion. I'm specifically discussing access to separate and single sex services as a service user, and the requirements under the law that a service provider must adhere to as this was a matter that has been clarified by issuance of a court order.

@PearPickingPorky "The judge in Ann's case did not say that a male-sexed trans person without a GRC would be considered to be female sexed for the purposes of accessing single-sex spaces and services. You are twisting it into what you would like him to have said."

""The claimant argues that the code relies on mis-statements of the law. None of their grounds are, in my findings, sound."

The basis for C's contentions are that under s.13 EA 2010 dealing with direct GR discrimination, the relevant comparator for a transexual womanbeing a biological manis a non-transexual birth male."

"The Code came into force in April 2011 following pre- and post-consultation process, and going before Parliament in 2010."

"On C's [the claimant's] basis a transexual male could be excluded. The key question is whether a PCP places those with GR characteristic at a disadvantage.

The claimant's first proposition is unarguable. [the claimant's first proposition cannot be argued to be correct]"

"The [EHRC] code of practise seeks to give concise and generally applicable advice. The claimant has shown no error of law."

Para 28 applies to gender reassignment in general. It applies to trans women regardless of whether they have a GRC or not

"In deciding whether a [Provision, criterion or practice} is a proportionate way of achieving a legitimate end, it is inevitable to look at the impact on those with protected characteristics, including [those] who are transsexual women.

In my view the claimant's argument is an obvious absurdity as it construes s.28 as never applying to a transexual woman lacking a GRC."

"[The claimant] gave an opinion as to the application of the test which the defendant is entitled to put forward in the context of general and practical guidance.

The statement that denial of services to transsexual people should only apply exceptionally is a statement as to the application of the test."

"I recognise the concern of women & girls and those who protect their interests. 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."

That's from the ruling of the Judge on the day in regards to the issuance of the court order

It's a Section 8.2.3 Court Order as per the updated JR Guide

Yes, and? This creates case law how?

Which has nothing to do with the Equality Act and the right to access separate or single sex services. As the judge said, Parliament intended that any trans person attempting to access such a service would have a legal sex different to the one assigned to them at birth.

I would be astonished if the judge said that!

Any trans person's legal sex is different from their birth sex for the purpose of single sex services?

In the absence of a written judgment, perhaps you could provide a reference to where parliament expressed this intention.