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?

@JoanOgden no problem!

@JoanOgden

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.

If TW are accessing women's toilets then they are unisex, and some females will be excluded.

Add more toilets. Add mixed gender, gender neutral, transinclusive, NB, all the bloody toilets. So long as enough accessible toilets are still available for females, and TQ+ male people are expect to respect that other people have inclusion needs and rights too, which means that this one space is not theirs (all the rest are) and this one space is not accessible to them. As without it, those females would have no access to anything at all.

Just to add to my last point, if a service provider offers "men's" and "mixed" options but not "women's", then they are on shaky ground legally if they can't justify it. A reasonable justification might be to encourage men into sectors they are underrepresented in, such as nursing or primary teaching. There isn't however a justification for providing only "men's" and "gender neutral" toilets, nor for providing only men's and mixed-sex rape counselling.

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.

Appeal decisions in the Inner House set a precedent for Scotland and are legally binding there. So this judgement is the new authority on the issue. (Until another Inner House decision sets a different precedent.)

The judges referred to biological not legal sex in their ruling btw, reminding us that the Equality Act defined women as female and did this even though at the time the concept of legal sex had already been created.

It is unlikely that this particular case will see the Scottish Government appeal to the UK's Supreme Court as their chance of successfully arguing that the Scottish Government had the legal competence to unilaterally alter UK law is slim. (Not impossible though.)

The Equality Act specifically states that a "woman" is a "female of any age". So arguably yes a male with a GRC but not a male without one.

*What the EA says is that it is legitimate to provide a single-sex space or service in some circumstances, but no service provider is required to provide a single-sex space or service.

So what this means is that service providers have the right to provide a single-sex service. There is nothing in the legislation which makes it illegal not to provide such a service.*

This is not entirely correct. A commissioner or service provider who determines a policy which amounts to a mixed sex service could be judged to have indirectly discriminated against even a small group of people if they could show they are particularly disadvantaged (compered to people not of their protected characteristic) because of their protected characteristic (which could be sex, race, religion) and the provider couldn't show it was a proportionate response to a legitimate aim. So a group of Muslim women or those with PTSD now unable to use a women refuse for example. It could also breach the PSED. Worth reading this blog by solicitor Audrey Ludwig legalfeminist.org.uk/2021/10/18/how-to-reconcile-the-seemingly-irreconcilable/

@justicewomen thank you very much for that link

Of course there is a ' Duty (i.e. a Statutory obligation, not a voluntary option) to provide ', including making special provision for those who would be excluded by provision which others would find adequate.

e.g. You may not choose to effectively exclude, therefore unlawfully discriminate against, wheelchair users, by having a flight of steps to the only entrance your service.

(Although, Disability Discrimination is in practice, "in many ways worse than Racism, in the effect it has on people's lives, and yet it is invisible, ubiquitous, publicly accepted and institutionalised" said Sir Trevor Phillips, who could have said the same about Ageism)

@CharlieParley
Appeal decisions in the Inner House set a precedent for Scotland and are legally binding there. So this judgement is the new authority on the issue. (Until another Inner House decision sets a different precedent.)

The judges referred to biological not legal sex in their ruling btw, reminding us that the Equality Act defined women as female and did this even though at the time the concept of legal sex had already been created.

I thought I’d seen a reference in the judgment to the PC of sex being about biological sex, but then thought I must have misunderstood - I’m not aware of ‘biological sex’ being a category that is recognised anywhere in legislation; also, given that a trans woman with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

I’m not convinced that the use of the term ‘female’ was necessarily intended to indicate a conceptual distinction in the EA between ‘biological sex’ and ‘gender’. It seems to me, in the context it’s used, it might have just been intended to make clear that the use of the terms ‘man’ and ‘woman’ didnt limit those categories to adults.

The GRA includes a provision that, where a person has obtained a GRC, “if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman” - so there is clearly no established position in legislation as to what ‘gender’, sex’, ‘male’ and ‘female’ mean.

with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

Can you explain how it's possible to exclude even males with a GRC from women's spaces such as rape counselling services, as is clearly set out in the examples in the Equality Act guidance?

"A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress."

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

This trip down memory lane is interesting, referencing MN

www.bbc.co.uk/news/uk-40713645

given that a trans woman with a GRC is regarded as being a woman - and female - for all legal purposes, they must be regarded as a woman for the purposes of the PC of sex.

It's not for all legal purposes though. There are exceptions. Hereditary peerages still pass down the male line. Ministers of religion (who do not marry same sex couples) can refuse to marry a couple if one of them has a GRC.

My understanding of what Liz Truss said is that the government does not want to make it illegal across the board for transwomen to use women's facilities and services. In other words, there will be no blanket ban, so if someone wants to offer a service for women which includes transwomen as potential customers, that's just fine. But if someone wants to offer a service which excludes transwomen in a manner consistent with the exceptions in EA2010, that's just fine, too.

So, I have three questions. First, have I understood correctly?

Second, this seems reasonable to me. Do you agree?

Third, I think this would mean that it would not be discriminatory for a local authority to grant or to remove funding from women's services on the grounds that these service either do or do not cater for transwomen. So LA policy would be entirely up to the LA on this, and not a legal issue. It becomes a matter for local politics. IANAL, but am I right here?

Yes, this is basically my understanding, @JustSpeculation.

I actually think that commissioning authorities should be required to commission at least one single-sex provider for all services for vulnerable women (rape crisis, refuges, etc) - this would not conflict with the Equality Act and would demonstrate the government's commitment to single-sex provision.

It would be nice if they commissioned any such service at all - rape crisis centres etc are not commissioned by LAs though they might be part funded by them.

Or maybe not if they hold to a single sex policy - as I know only too well.

actually think that commissioning authorities should be required to commission at least one single-sex provider for all services for vulnerable women (rape crisis, refuges, etc) - this would not conflict with the Equality Act and would demonstrate the government's commitment to single-sex provision.

I agree.

If not commissioned, funded.

@SamphiretheStickerist

It would be nice if they commissioned any such service at all - rape crisis centres etc are not commissioned by LAs though they might be part funded by them.

Or maybe not if they hold to a single sex policy - as I know only too well.

Yes, this is what I was getting at. Do you think that there should be a statutory duty in law for LAs to provide, or support, single sex services of this sort, or should it be a matter of local politics (as far as that's possible - local politics too often is neglected and just reflects national politics for this to happen, perhaps). I have a feeling that with Truss, the second would be on the menu.

Hmmm. I've just realised that @Ereshkigalangcleg and @JoanOgden do! Note to self - always read preceding posts peroperly before posting.

@Ereshkigalangcleg
Can you explain how it's possible to exclude even males with a GRC from women's spaces such as rape counselling services, as is clearly set out in the examples in the Equality Act guidance?

Yes - because the EA says that, where it is a proportionate means of achieving a legitimate aim, actions done in relation to provision of single sex services do not constitute discrimination on the basis of gender reassignment. So if I choose to provide a single sex service, and exclude trans women with a GRC (even though they are legally women), they cannot bring a discrimination claim on the basis that I am treating them differently from other women because of their gender reassignment.

(If my excluding them is a proportionate means etc in all the circumstances)

But the whole provision is on the basis of it being a single sex service. Why do you think it's ever possible to exclude "legal females" who are biologically male?

And there are exemptions provided for in the GRA, as well, as pp said. Tough if you are a "legal male" GRC holder first born and your little brother is a "legal female", you don't get to inherit your hereditary peerage under primogeniture.