Liz Truss shift

[purpleboy]

inews.co.uk/news/politics/government-no-interest-banning-trans-people-single-sex-toilets-liz-truss-tells-equalities-tsar-1474413

Is this a shift in thinking from Liz Truss?

It’s important to read this with the GRA debate linked to on this thread.

www.mumsnet.com/Talk/am_i_being_unreasonable/4483606-MPs-will-debate-changing-the-Gender-Recognition-Act

They’ve said the government will be removing the spousal veto, and references to disorder and actively looking at getting rid of the two year ‘living in the opposite gender’ requirement. Look at what Mike Freer MP says, the Equalities Minister who has GRA in his brief.

Im sorry but not a single right that women enjoy has been affected by this. If youre choosing this issue to be vocal about at least get the facts right.

Its not a shift once you realise they actually support the view that 'TWAW' and they have done all along.

Kimilybob Removing the spousal exit clause will make it impossible for women to divorce and get their lives back on track, the paperwork will be in the wrong legal name. You should at least try to get your facts right.

@PacificState

Tbh I don't agree. It definitely doesn't mean 'female-exclusive'; I know many, many women who will happily share facilities with TW. Don't forget that all the polling shows women are much more sympathetic to TRA positions than men are. Many (most?) women don't mind if a TW is in the M&S changing room. M&S are dummies (whatever the Per Una range might suggest); if most women strongly objected to their policy on changing rooms they'd go out of business. It's not happening. Most women do not feel excluded by these policies. I don't personally really understand why, but then I don't understand lots of things - why people voted for Johnson, why they voted for Brexit, why they didn't like Ed Miliband... we have to deal with things as they are, not as we'd like them to be.

some women will refuse to use trans-inclusive services. Many of them will be particularly vulnerable, eg survivors of abuse. Others will just feel unsafe because of typically male behaviour patterns. It's essential services are available for them too. But, in general, trans-inclusive services are not female-exclusive in the real world - because most women happily use them. (I've used an M&S changing room myself recently.)

No the polls don’t show that at all, when it is pointed out clearly that self ID means no medical interventions , no hormones etc. Once people are told that any man can just say he is a woman the response is very different. I’ve spoken to many, many people over the last while and 97% of them, men & women, are appalled by what the Scottish government in particular are doing up here.

It’s not acceptable that women’s organizations may have to start again just to preserve our safe spaces & keep them single sex.
How much blood , sweat and tears went into starting and building up those services? Why the hell should women have to accommodate any man?
As is often said on here on Mumsnet NO IS A COMPLETE SENTENCE.

@CharlieParley

That is completely irrelevant. Here's the law: it is illegal / unlawful / verboten to discriminate against people for any reason whatsoever.

That's the default position.

Here's the exception:

There are a number of circumstances where people have particular needs that other people do not have.

There are a number of reasons why people have been discriminated against in the past, before equalities laws made this unlawful, and they continue to suffer the consequences to this day.

For both of those reasons, it may be necessary, in certain situations and under certain circumstances, to make an exception to the no discrimination default.

It is impossible to do so without rules, because the reasons why exceptions may be necessary are different and the interests of some people may conflict with the interests of another.

Prior to 2010 we had a whole range of separate laws trying to do right by these different groups of people, but it was difficult to navigate them, especially when conflicts arose.

Enter the Equality Act 2010.

It defined the groups by defining what particular characteristic it is that may lead to discrimination or that may result in particular needs:

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.

Now under UK law you may not discriminate against anyone for any reason, unless you cannot meet the needs of people with a particular characteristic without discriminating against those without that characteristic.

So no, you cannot make up anything else in order to exclude people, because the default is that discrimination is unlawful and it would therefore be unlawful to just make something up. To make it lawful, you have to show that one of these nine protected characteristics is the reason why you need to discriminate by excluding people.

This is a complete misunderstanding of equality law. It is only illegal to discriminate against people (directly or indirectly) because of a protected characteristic. It is not illegal to discriminate for other reasons eg because a person is left handed. If a public body or an employer were to treat someone less favourably for some arbitrary reason it might be unlawful under other legislation (eg employment law), but it would not be discrimination under the Equality Act.

As to single sex spaces, the starting position under the Equality Act would be that they are unlawful, because they involve excluding people on the basis of their sex. However, the Act specifically allows an exception to that general position, so that single sex spaces are not regarded as discriminatory as long as they are a proportionate means of achieving a legitimate aim, taking into account the specific circumstances.

I'm not sure it's quite that straightforward, @Helen8220 - doesn't the ECHR prohibit discrimination on the grounds of "other status" too, when another human right is engaged?

I imagine gender could be argued to count as an "other status", but I'm not sure whether one could apply any exemptions in this case. So - a single-gender service could operate, but would be open to challenge if the claimant argued it discriminated unfairly against them, e.g. in connection with the right to privacy?

IANAL so feel free to correct me. I'd like to see this issue argued in court as it is pretty confusing.

single sex spaces are not regarded as discriminatory as long as they are a proportionate means of achieving a legitimate aim, taking into account the specific circumstances.

Yet somehow the aim of providing exclusively female support to female survivors of male rapists has been reframed as a non-legitimate aim.

Going back to the Liz Truss letter, which is very oddly written, I think she is trying to make a distinction between facilities (which clearly means toilets, and maybe changing rooms too) and services.

I think she is saying that the government has no intention of preventing trans people from using opposite sex toilets, but is fine with the use of single-sex exemptions for services, e.g. women's refuges, where the law allows.

Which is ridiculous, because single sex toilets for women are an essential service to allow them to leave their homes for longer than a couple of hours. Urinary leash.

Single sex changing rooms are an essential service for women to substantially reduce the number of sexual assaults and voyeuristic offences committed against them, as well as to enable women from religious and ethnic minorities to engage in fitness, social and retail activities outside their homes.

Single sex services for women are a proportionate means of achieving a legitimate aim, taking into account the specific circumstances.

It seems there is still confusion on this thread alone as to what this means. Different posters have different views on the EA and what it means in reality. This is what is causing the confusion, we need clarification of what this all means, and the real life consequences.
I for one am still baffled at the underlying message in this letter. Clarity is needed so we know how to move forward.

I'm not disagreeing with you, though I think single-gender toilets are much, much better than unisex toilets and am worried when GC feminists try to conflate the two. I am just trying to work out exactly what Liz Truss meant in her letter.

@MangyInseam

It's also because nobody mentioned that the transwomen would still have their male genitalia.

That's not the reason for the difference, I don't think.

It's absolutely true that if you do not mention such things, more people both male and female, support transwomen in women's spaces.

But even if you do mention it, you see some support, and I believe more women than men support it in both cases.

Which fits with my anecdotal experience.

My anecdotal experience is as I described above.

Women were worried but stayed silent!

And the information I gave has been shown to be true in previous polls. A more honest explanation of what 'transwoman' actually means, in fact and in law, does change perception and opinion.

That is not my belief, it is the oitcome of previous repeated polls. There are a number of threads here that include the data - probably starting from about 2 - 3 years ago.

@JoanOgden

I'm not disagreeing with you, though I think single-gender toilets are much, much better than unisex toilets and am worried when GC feminists try to conflate the two. I am just trying to work out exactly what Liz Truss meant in her letter.

You might want to check your wording there as you seem to contradict yourself - I think!

Single sex toilets are not the same as single gender toilets. God only knows how many separate facilitees we would need to fulfil single gender requirements. And any of the very many single genders could well be unisex.

It really is not GC women who conflate gender and sex!

@JoanOgden

I'm not disagreeing with you, though I think single-gender toilets are much, much better than unisex toilets and am worried when GC feminists try to conflate the two. I am just trying to work out exactly what Liz Truss meant in her letter.

Unisex toilet = single entry, single user toilet for use by both sexes. Example: almost all accessible toilets.

For our purposes and increasingly in modern usage, gender and sex are two distinct concepts and should never be conflated.

A single-sex toilet is a multi-entry, multi-user toilet for use by several people of one and the same sex at the same time.

What is a single-gender toilet?

I stand corrected Helen8220.

One could argue that it would be very hard to find a legal reason to discriminate outside of Equality Act exceptions, because a claimant will try to match his circumstances to one of the PCs and this is almost always possible. I should probably add that in any case it is useful to remember that discrimination on the grounds of all protected characteristics does happen in practice and regularly so, and court action is in reality inaccessible to most of us due to the costs involved, so it may be hard to claim one's right under the EqA. But mine was a comment on the legal situation alone and I got it backwards. Thanks for pointing it out.

Fair criticism - what I mean is that I (and I think the vast majority of women) would much rather have separate toilets for women and men where transwomen can use the women's, than unisex toilets where everyone is in together.

There should be the available services; female only and "inclusive" (though we all know what that means) so everyone is catered for. Third spaces essentially.

But again and again, it's never good enough for the activists. They want WOMEN'S spaces, women's services and nothing less will do. It's an entitled, selfish need for validation, absolutely nothing to so with safety.

Female only spaces are targeted. Doesn't matter if there's an available inclusive space down the road, doesn't matter if there's a space just for them down the road, if it's female they will not stop until funding is removed, it's closed down or backs down and lets them in.

And again and again, those in charge from government to sports, are utterly spineless. They pass the buck and leave individual organisations at the mercy of the bullies. Women have to crowdfund for court cases. Why won't anyone at the top just say no???

@JoanOgden
I'm not sure it's quite that straightforward, @Helen8220 - doesn't the ECHR prohibit discrimination on the grounds of "other status" too, when another human right is engaged?

I imagine gender could be argued to count as an "other status", but I'm not sure whether one could apply any exemptions in this case. So - a single-gender service could operate, but would be open to challenge if the claimant argued it discriminated unfairly against them, e.g. in connection with the right to privacy?

IANAL so feel free to correct me. I'd like to see this issue argued in court as it is pretty confusing.

That’s an interesting point. You’re right that the Convention protects against discrimination on the basis of an ‘other status’ where another Convention right is engaged. However there are limitations on that protection - it doesn’t provide a freestanding basis on which to bring litigation against a private person or organisation, only public bodies. Also, if we’re talking about a cis gender man arguing that they are being discriminated against on the basis of their gender identity because they are not allowed to use the women’s toilets, while trans women are allowed to use them, I can’t see that argument getting anywhere. First, is their right to privacy engaged, if there are men’s toilets available? Also the question would be whether excluding them had an objective and reasonable justification - I think it would be hard to argue it didn’t, as long as there were men’s toilets available for them to use.

I think the other point people are considering is whether a man in that situation could argue sex discrimination under the EA, on the basis that the provider is not within the terms of the ‘single sex service’ exception, because they are not “providing a service only to persons of one sex”. It’s an interesting argument, though I’d be surprised if a court had much time for it. Has there been a definitive court decision as to what ‘sex’ means in the EA, with regard to trans people?

Thanks @CharlieParley , no problem.

You’re right that it’s often possible for a claimant to find a way to hitch their claim to one of the PCs by way of indirect discrimination.

@JoanOgden

I'm not disagreeing with you, though I think single-gender toilets are much, much better than unisex toilets and am worried when GC feminists try to conflate the two. I am just trying to work out exactly what Liz Truss meant in her letter.

Push came to shove, I'd rather have unisex/all sex spaces than 'uni gender', tbh. Ideally women should have single sex provision, but if they're going to change that to 'women and any males who fancy using women's spaces' then I'd rather just be in with everyone.

Thanks @Helen8220 - yes, those are the conclusions I was groping towards, so it is useful to see your (more coherent) thoughts on this.

I still hate the idea of unisex toilets much, much more than I am bothered by transwomen using the ladies - though I agree the latter can be problematic. I think most women would agree with me on this, but would be interested to see a survey.

Also, if we’re talking about a cis gender man arguing that they are being discriminated against on the basis of their gender identity because they are not allowed to use the women’s toilets, while trans women are allowed to use them, I can’t see that argument getting anywhere. First, is their right to privacy engaged, if there are men’s toilets available? Also the question would be whether excluding them had an objective and reasonable justification - I think it would be hard to argue it didn’t, as long as there were men’s toilets available for them to use.

Doesn't this argument also apply to males who identify as 'transwomen'? They are not excluded from services, because there is one provided for those of the male sex.

Has there been a definitive court decision as to what ‘sex’ means in the EA, with regard to trans people?

Isn't that what the recent court decision in Scotland did?

For Women Scotland, a feminist group, argued that the 2018 Gender Representation on Public Boards Act which aimed to boost female representation breached equality legislation because it included natal women, trans women and those who “live as women”.

Lady Dorrian, the lord justice clerk, said that by “incorporating those transsexuals living as women into the definition of woman the 2018 act conflates and confuses two separate and distinct protected characteristics”.

www.mumsnet.com/Talk/womens_rights/4484708-For-Women-Scotland-win-appeal-Public-Boards-definition-of-woman

But wouldn't we also need a definition of what 'trans people' means? Who exactly is covered by this definition? Is every male who occasionally cross dresses to be considered to be 'trans' and allowed access to all women's spaces?

@SevenWaystoLeave

The right to this single-sex service is already mandated in the Equality Act.

This is flat out false misinformation, often repeated on Mumsnet, but absolutely untrue. There is no mandate in the Equality Act for services to provide single sex provisions. The Equality Act states that it is lawful for service providers to provide single sex provisions in some circumstances - this is not the same as mandating it. It simply means they can if they want to.

If a counselling service wants to provide a service to everyone, regardless of sex or gender, this is legal.

If a counselling service want to provide a woman-only service which includes trans women, this is legal.

If a counselling service wants to provide a woman-only service which excludes trans women, this is legal, provided "exclusion is a proportionate means of achieving a legitimate aim".

How inclusive a service provider chooses to be is up to them. There is no mandate, and it is never illegal to be more inclusive than you have to be, while it may, in some circumstances, be illegal to be less inclusive than you could be.

Correct, there is no 'right' in law to a single-sex service; the only thing the law does is permit them, it doesn't mandate them.

However if by not offering a single-sex service some women are unable to attend (religious/cultural reasons, or PTSD sufferers) then illegal indirect discrimination on the grounds of religion or disability has taken place. In the case of rape counselling, male-triggered PTSD will be quite widespread.

Isn't Sarah currently taking this particular question to court?

@OldCrone
“Also, if we’re talking about a cis gender man arguing that they are being discriminated against on the basis of their gender identity because they are not allowed to use the women’s toilets, while trans women are allowed to use them, I can’t see that argument getting anywhere. First, is their right to privacy engaged, if there are men’s toilets available? Also the question would be whether excluding them had an objective and reasonable justification - I think it would be hard to argue it didn’t, as long as there were men’s toilets available for them to use.”

Doesn't this argument also apply to males who identify as 'transwomen'? They are not excluded from services, because there is one provided for those of the male sex.

I thought we were talking about whether a person could legally challenge an organisation/venue which has separate men’s and women’s toilets, and has an explicit policy of allowing trans people to use the toilets which reflect their gender? There is a separate question about whether a trans person could legally challenge an organisation or venue which has a policy of not allowing trans people to use the toilet that reflects their gender.

“Has there been a definitive court decision as to what ‘sex’ means in the EA, with regard to trans people?”

Isn't that what the recent court decision in Scotland did?

I was wondering if someone would mention that judgment. I have only skimmed it so far, but my impression was that the court assumed that ‘sex’ in the EA refers to legal sex and that therefore ‘women’ would not include trans women (without a GRC, presumably, as those with a GRC would be legally women). I couldn’t see any reasoning as to how they reached that conclusion, so I’m not sure how it stands as precedent. I need to give it a proper read though. In any event, I don’t think decisions of the Scottish courts are binding on the courts in England and Wales. It will be interesting to see if it goes to the Supreme Court though.