For Women Scotland win appeal (Public Boards definition of 'woman')

[IsitM]

Original thread here:
www.mumsnet.com/Talk/womens_rights/4221457-For-Women-Scotland-judicial-review-appeal?msgid=106576116

Details to follow...

The difference between the Times and the BBC reports: both use the unclear terminology of 'trans' and ' living as a woman' etc without any explanation, but the Times includes a quote from FWS which makes it quite clear that this is about men taking opportunities away from women. By omitting this, the BBC article is completely unclear to anyone who does not understand the ideological terminology.

Yesterday was a low day, a day of thinking it was all too much.

Today is a party hats and Cava day (sorry, don't like Prosecco).

The other thing that gives me joy, with this ruling, is that in future, any conflation such as this oft used slogan 'All Women' can be questioned and should not be met with the 'you are a transphobe' response. Time for people to define transphobia.

Interesting re Mridul Wadhwa, any thoughts, without getting deleted?

The ERCC thing is an internal policy decision. An employer doesn’t have to make a facility single sex or apply the single sex exemptions to an employee or position. They can change or remove their policy at any time. They can interpret it how they wish. They write the policy they are not forced to have single sex spaces by any government legislation, it’s mostly a moral and ethical thing.

The right thing to do is to provide single sex facilities within a rape crisis centre that the “victim” Requests. Male victims should be able to access male couseillors and female victims should be able to access female counsellors without question or fear of accusations of transphobia or being re-educated.

The ERCC thing is an internal policy decision. An employer doesn’t have to make a facility single sex or apply the single sex exemptions to an employee or position. They can change or remove their policy at any time.

Even when the job advert says "Only women need apply under Schedule 9, Part 1 of the Equality Act 2010" ?

Surely GCAUTIST if someone now advertises for a woman, then unless they add Transwoman, they must employ a biological woman?

This does indeed look very important, @InvisibleDragon

These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined, particularly in light of subsequent legislation on the matter in the form of the 2010 Act which maintained the distinct categories of protected characteristics, and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 Act were limited.

I can’t help thinking this might be a salient point when it comes to the current demand that the GRA should be reformed to remove that limitation. It would make it much easier to argue that the GRA cannot be reformed without significant attention being paid to the impact any changes would have on the EA.

Given that the current Scottish Government argument is that GRA reform would have no effect on any other legislation, it might be possible to point to this legal ruling as indicating the opposite is true.

@JellySaurus

The difference between the Times and the BBC reports: both use the unclear terminology of 'trans' and ' living as a woman' etc without any explanation, but the Times includes a quote from FWS which makes it quite clear that this is about men taking opportunities away from women. By omitting this, the BBC article is completely unclear to anyone who does not understand the ideological terminology.

Started a new thread on this as this is the second very heavily managed and controlled story this week on women's rights where only the TQ+ side is shared, and female people are carefully painted as old, past it, irrelevant and merely randomly prejudiced rather than permitting the general public to hear anything of their voices and their reasons.

If the BBC have to hide what women say, then they are too afraid of the general public finding out to risk sharing it. Outrageous.

@ItsAllGoingToBeFine

The ERCC thing is an internal policy decision. An employer doesn’t have to make a facility single sex or apply the single sex exemptions to an employee or position. They can change or remove their policy at any time.

Even when the job advert says "Only women need apply under Schedule 9, Part 1 of the Equality Act 2010" ?

IIRC, the EHRC declined to intervene in the appointment of MW, in part because it was a small charity org & not really something they'd want to get involved in. I don't think that position is sustainable tbh. Because there's been more adverts since, quoting the GOR exception which specifically encourages males who ID as women to apply. When the single sex guidance comes out, I'm wondering if this will cover that specific exception & state clearly that the exception does not apply where males who ID as women are actively encouraged to apply? I hope so because this needs to be addressed. Those who need female only support & space deserve transparency & orgs need to understand that they're discriminating against female service users by not providing a female only space/service for that need.

Anything else is just cruel & unnecessary.

@ItsAllGoingToBeFine

Just saw that Lady Dorrian was the judge in this case, I wonder if the judges sex makes a difference to how they approach these?

The first decision was by Lady Wise.

The ERCC thing is an internal policy decision. An employer doesn’t have to make a facility single sex or apply the single sex exemptions to an employee or position. They can change or remove their policy at any time. They can interpret it how they wish

This is not true. It comes back to the reason why single sex services exist: to prevent/overcome the discrimination against women that exists without them. By removing single sex provision the service becomes discriminatory.

The ERCC thing is an internal policy decision. An employer doesn’t have to make a facility single sex or apply the single sex exemptions to an employee or position. They can change or remove their policy at any time.

However if by doing so excludes and discriminates against female employees with characteristics under the EqA2010 the consequences of removal of all single sex facilities may get expensive. Because it is not all about male people.

Sadly this is going to require women taking them to court and getting those payouts.

The judgement makes clear that the protected characteristics of sex and gender reassignment are not to be conflated. Surely, this is exactly what 'Stonewall law' does. Hopefully, this will be another nail in the coffin for its dud guidance. It will be interesting to see how it interprets the legal implications (other than this is an attack on the most vulnerable group etc).

I think this might have implications for ERCC and other orgs invoking Schedule 9 of the Equality Act.

I've seen the argument in the past that invoking the single sex operational requirement but allowing trans women to apply discriminates against non-trans men on the basis of the protected characteristic of gender reassignment.

The counter argument has been that trans women have the protected characteristic of being female so are eligible to apply under the single sex exemption.

But this ruling says that the two protected characteristics (sex and gender reassignment) are distinct. Which suggests (IANAL and I'm hopeless at legal stuff) that there is an argument to be made that allowing some males to apply (those with the protected characteristic of gender reassignment) but not all of them would be discriminatory.

I agree. I think the creep on this, the adverts quoting the GOR, while stating TW welcome (in some cases, especially welcome) to apply for roles marked as for female only applicants, can't continue. I'm hoping the EHRC guidance is explicitly clear on that.

Surely any man who isn't trans ( bear with me...) has a discrimination case against employers who advertise for women only but then accept TW.

I wonder if this with give the Financial Conduct Authority pause for thought. They launched a consultation last year on gender diversity on public boards and used "self-identity" as the criteria. I know this is a Scottish court ruling but surely if you were a UK regulator you would be re-thinking your stance, worried that you might be challenged in court.

@highame

Surely GCAUTIST if someone now advertises for a woman, then unless they add Transwoman, they must employ a biological woman?

I have no idea how often "men only" employment adverts are placed. Do they explicitly attempt to recruit TM and say they're especially welcome?

I have no idea how often "men only" employment adverts are placed. Do they explicitly attempt to recruit TM and say they're especially welcome?

I've seen a few, usually care/support worker type jobs. Never seen one that mentions TM. Why would it though? Nobody expects men to be 'inclusive' to their own detriment do they?

I think that it's also worth highlighting that, in the 1st round of the legal challenge, En/STA were given permission to intervene & part of that included statements from males who identify as women, on how they were intending to apply to join a number of public boards. The mechanism that STA managed to get included (unlawfully) in the bill was the vehicle for more males to join boards, at the expense of opportunities for women. I can't tell you how delighted I am that this gerrymandering of women's rights & legal protections (especially in mechanisms to encourage more equal female representation) has finally been halted.

So to summarise in clear language - men currently make up the majority of those on public boards.

What the trans lobby wanted, and were given, by our "Feminist to her fingertips" First Minister, was for male people to have an assisted chance at getting a spot on Public Boards, by making 50% of those spaces available only to women*, but then allowing males to use their male advantage against women in their own (supposedly) protected category, thus allowing men to have both a free shot in the men's category, and if they aren't up to that then an assisted shot via the women's category.

“ Surely GCAUTIST if someone now advertises for a woman, then unless they add Transwoman, they must employ a biological woman?”

The specifics of this particular win are in relation to one particular scenario - sex representation on public boards, so yes if advertising for a woman board member for a public sector organisation according to this ruling it ought to be a female person getting the position. In regard to general employment, some statements have been made that can be used persuasively in future arguments but that will need to be tested and the private sector might find a different set of rules apply.

As for saying not providing single sex facilities is discrimination - that is situation specific too. There is no legislation or ruling that says you can force a counselling and victim support service to only provide a service for women. I was responding to the ERCC thing, not in general - it’s not discrimination to set up a service that may be used predominantly but not exclusively by biological women. It’s not discriminatory but it is in extremely poor taste imo, others seem to disagree. It is an internal policy decision. They do not have to apply the single sex exemption but it is highly questionable that they don’t given their remit.

If MW was given a job where they specifically stated a single sex exemption applied then it possibly could be challenged but in the end they can just change their employment policy. There may be funding implications I guess if they have been given money specifically for a woman to run womens services and that turns out not to be the case but that’s a different issue.

@Signalbox

Jo Cherry has said on Twitter that...

"This judgment says the meaning of woman in the #EqualityAct is a biological female. It also says the ScotParl could legislate to increase the representation of trans people on public boards having regard to protected characteristic of gender reassignment."

This has to be positive. It goes one step further in teasing out "gender" and "sex" as separate things. This must be useful in future cases where judges are conflating sex and gender.

So legally sex and gender are separate according to the equality act, and deliberate conflation is therefore an act which therefore potentially harmful to women (and discriminates against them)?

Thus pretty much saying everything we've been saying here forever.

Once you legally define women you have to then either legislate to remove rights from women or add in other protected characteristics to the EA (but this would also by definition acknowledge there can be a conflict in rights that may need to be balanced)

Which is exactly what the TRA have been keen to avoid from the off, and why they've always avoided the question of 'what is a woman' and gone nuts over tshirt?

Am I reading this right?

This is potentially huge if I am.

Thanks for the Times link. I always forget to check the Scotland section but there's some good stuff in there. This feels quite major. Going to have a wine and a re-read of the viper analysis

@littlbrowndog

This is such a lot of work for women who get no government funding

Thank you so much from women in Scotland

You lot rock

It is immense. Time to chuck another spadeful into the garden, I think.

Fucking outrageous women are having to shell out to ensure our bloody legal rights are upheld. But there we go.

www.thetimes.co.uk/article/2102897c-9193-11ec-8038-2fedb801d1cc?shareToken=bcd64bd5facc8fe1d28ab5a2b6bda090

Another Times article. Comments on and good on this one.

This is an interesting legal opinion on the FWS case.

Link To Gordon Dangerfield blog

Scotgov's 'flagship' Equally Safe legislation (where the funding T&Cs for third sector women's orgs were set - effectively embedding male inclusion in female support services/spaces/provision in funding applications on the basis of self ID) could be rendered unlawful too (the funding requirements at least) as a result of the FWS case. Rape Crisis Scotland & Scottish Women's Aid both require orgs under their 'umbrella' to abide by their requirement for male inclusion in female only services/support/space, on the basis of self ID too. Are they now operating an unlawful policy?

I think Joanna Cherry's opinion on this judgement having far reaching consequences is accurate. There's a lot of work Scotgov has done on pushing male inclusion on the basis of self ID across many areas & all of it has been done on the basis of (wilful IMO) misinterpretation of the law on single sex exceptions.

Lots to think about in terms of what this all means for many areas that have 'gotten ahead of the law' and switched to mixed sex provision at the behest of LGBT orgs who have been spreading misinformation & misinterpretation of the law.

🤔