Baroness Faulkner on Times Radio

[RightsHoardingRaptor]

She will be on the Times Radio with Tom Newton Dunn, talking about Kathleen Stock's situation shortly.

The show is 10-1 so no idea how far in.

@NecessaryScene thanks for this, interesting distinction. Wasn't aware of this.

@SpindelWhorl But exceptions are allowed. Exceptions were always envisaged.

Indeed they were. The single-sex exceptions in the Equality Act go right back to the Sex Discrimination Act 1976 (the 2010 Act was just bringing together existing law on all the protected strands). When gender reassignment was added to the characteristics, so were the exceptions - so in any case where it's lawful to exclude a man on the grounds of his sex, it's also lawful to exclude a person with the characteristic of gender reassignment. (And even a person with a gender reassignment certificate has that characteristic.)

Places like hospital wards, and intimate services, are absolutely included in those cases.

It's only Stonewall law that has so thoroughly muddled up the thinking and discussion on this.

I'm trying to understand the law here.

I believe in normal operation the EA2010 could lead to an employer being found to be creating a "hostile environment" if it did not attempt to prevent, say, racist abuse from a customer towards staff. And I assume we're talking abuse that's not at a criminal level, such that the customer could be prosecuted - something that would be tolerated individual-to-individual level - but not in a workplace.

So what I think we're seeing is a variant of the same basic logic applied to "trans". An environment where women do not treat a GRC-possessing man as a woman could be deemed a "hostile environment". I guess that's the way they're reasoning it.

Except such an environment is surely equally hostile for the woman? This is a clear conflict. Why should the staff member's rights to a "non-hostile" environment outweigh the customer's? The organisation has responsibilities to both.

I think, actually, it's not staff prioritised over customers - it's trans prioritised over women in both cases. A transwoman customer would no doubt be able to demand a female staff member.

But, of course, there are single-sex exemptions. That should avoid the problem, right? They have the right to give a woman a single-sex service. Acting in compliance with the law and saying that in this case the transwoman staff member is excluded by sex is permitted, and that avoids the hostile environment for the woman.

I'm listening to Episode 7 of the Nolan Investigates podcasts, Lobbying and the Law, which describes how the EHRC were presented with a series of questions relating to the Equality Act 2010 including whether the terms "gender reassignment" and "gender identity" are interchangeable. The EHRC came out with a firm "No". They also pushed back on some of the more creative interpretations of the Taylor v Jaguar decision. The EHRC know they've been put on notice that they need to operate according to the law as it is rather than how lobbying outfits like Stonewall would like it to be, and I would hope are in the process of moving to be more in alignment with the law.

The upcoming guidance by the EHRC on single-sex spaces is going to be very interesting. Will they just blandly restate the law or will they state explicitly what they're moving away from?

www.bbc.co.uk/sounds/play/p09yk96l

@nauticant, I've never really understood the Taylor v Jaguar decision tbh.

Except such an environment is surely equally hostile for the woman? This is a clear conflict. Why should the staff member's rights to a "non-hostile" environment outweigh the customer's? The organisation has responsibilities to both.

Exactly, and this is why I think Jo Phoenix's case is so important, that it would establish that women can also face a hostile environment in terms of this issue.

As Helen Joyce has said - once you let "1 = 0" in one part of mathematics, it spreads. You can't let a falsehood stand in one place and expect it to remain there.

She is so good at explaining this.

[quote SpindelWhorl]@nauticant, I've never really understood the Taylor v Jaguar decision tbh.[/quote]
If you look at the facts in the case, it's quite clear cut.

A male employee adopts a feminine-coded appearance. Gets harassed and bullied because of that appearance. Some of the remarks seem harmless, but if you look at the whole, there's a pattern of behaviour directed at that employee by colleagues that crossed the line. The employer failed to act even though they should have protected the employee and stopped the behaviour. That's why the employee won at the tribunal.

The protected characteristic of gender reassignment applies here, regardless of the employee's self-identification as non-binary rather than as a woman, because the protected characteristic of gender reassignment says:

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.

It doesn't mention identity, it doesn't talk about the protected characteristic only applying if you call yourself by a particular identity term. The protected characteristic only refers to a process.

And the employee in that case is covered, because that process of transitioning was undeniably and very publicly happening.

I don't think the jubilant reactions by trans rights organisations to the judgement were justified - in my view the law is clear, where you have evidence of an actual transition - the very process referred to in the law - happening, it's straightforward. Obviously the employer was always going to claim that the employee wasn't covered by the protected characteristic of gender reassignment, because that's what employers in tribunals will do - use every tool at their disposal.

The case would have been far more difficult if there was no transition at all. How do you prove intention to undergo a process and how do you prove others knew about that intention, and then treated you unfairly because they knew, in the absence of any outward evidence of transition?

But this case was not hampered by that problem.

HTH

On the other hand, the ERC tweeted about sexual orientation being a protected characteristic and using the term ‘sex’ and no mention of gender today too.

Issue with exception is that it can be used. Doesn't have to be.

For a variety of reasons I can't see this changing anything in orgs that haven't exercised it.

On NHS wards disingenuous. When the big political thing was single sex wards. It was single gender behind the scenes. So not been single sex for v decades and before that assume no protocols/ expected practice in place.

From Sex Matters: Academics write to the EHRC

sex-matters.org/posts/updates/academics-ehrc/

[quote SpindelWhorl]@nauticant, I've never really understood the Taylor v Jaguar decision tbh.[/quote]
It gets hyped up but really it was a basic bullying case where the employee was gender reassigning. The mention of gender fluid or whichever seems largely irrelevant, what label this particular reassigned person chooses on any given day is about as interesting as Owen Hurcum.

The choice of micro label makes about as much difference as clothes do when sex matters.

A large chunk of the Taylor case was trials and tribulations about him wanting access to the women's toilets, and being given that without objection. It wasn't just "bullying".

Background at Sex Matters:

sex-matters.org/posts/case-law/taylor-v-jaguar-land-rover/

And there's a link to a piece by Anya Palmer there too, with a link to the judgment.

Thanks to posters for the info and that link re Taylor v Jaguar.

Yesterday I read some of the very enthusiastic 'Reasons' section of the tribunal's judgement. The Tribunal noted that the question of whether a gender fluid / non-binary person fell within section 7, EqA 2010 was a novel point of law (my emphasis). We know what they decided.

Why are Jaguar not appealing it? (Or did they, are they?)

I think this is where I'm struggling to process the judgement on the novel point of law that seems to be very challengeable.

Why would Jaguar appeal a bullying case?

The cosy judge/barrister relationship mutual back slapping over novel law is a bit laughable really.

No one cares about the labelling, the intricacies of Eddie Izzard's daily identity habits have no effect on his sex

At least Baroness Faulkner is speaking about this publicly and willing to be interviewed. All of the mangling of the EqA happened under the watch of David Isaac. I don't recall him being interviewed at all on the matter. I just posted this on another thread about a public enquiry into Stonewall's influence on publicly funded bodies needing to include the EHRC:

David Isaac and the tangled web he weaved whilst Chair of the EHRC is another one. How did his appointment as chair come about? How was he influenced by his old pals at Stonewall, for whom used to be chair? How was he conflicted being in this role and simultaneously being a very senior equity partner in a law firm year upon year held up by Stonewall as their Employer of the Year? Why, under his watch, did the EHRC need to be reminded by lay people that their own online material was breaching the Equality Act?