@Manderleyagain
This is what I take her to mean:
- ehrc should make clear to providers of (eg) women's services that they can restrict access on basis if sex (ie exclude trans women). That's lawful.
- where providers choose to restrict access on basis of chosen gender instead (ie include trans women) they should be allowed to. The government has no plans to change this.
Both are lawful but are not the same.
The government obviously interprets EA as saying both are lawful, they have no plans to change that, and they support ehrc in making that clear.
But they are not both lawful.
Restricting by biological sex = lawful
Restricting by legal sex = lawful
Both of these options involve lawfully discriminating against people of the excluded sex, whether legal or biological.
Restricting by gender =/= lawful. It has no basis in law. As the judgement in For Women Scotland vs the Scottish Government reminds us, sex and gender reassignment are two distinct protected characteristics which cannot be lawfully conflated.
Any organisation that allows males access to a female-only provision on the basis of self-identification of sex is no longer using a lawful single-sex exception. The organisation is not including these males on the basis of their biological sex in a female-only provision, because they are not female. And it isn't including these males on the basis of their legal sex, because that's the whole point of self-identificstion of sex right now - these males remain legally male.
So how does the organisation justify exuding all other males from its provisions in law? It cannot and is therefore unlawfully discriminating against males who don't self-identify as trans.
There is one caveat to this in that the EHRC advises that those who are virtually indistinguishable from members of the opposite sex must be considered for inclusion in an opposite-sex provision regardless of whether they have a GRC.
This is difficult to apply in practice and is strongly debated by both sides in the debate - the provision relies on perception and perception is entirely subjective. Which is not a good or fair measure to decide access. We know for instance that women in general are much better at recognising sex than men. And hypervigilant women who have survived male violence will recognise fully transitioned males as male even if they otherwise may pass for most people. So that leads to obvious problems from a women's rights perspective.
And the mantra acceptance without exception is clearly in direct conflict with any kind of gatekeeping on the basis of appearance.
But even if according to EHRC advice organisations can legally operate a policy based on legal sex combined with allowing access to those who have fully transitioned, I cannot see a way of operating an exclusion policy on the basis of self-identification, which is what access based on gender amounts to.