EHRC single sex guidance out

[ItsAllGoingToBeFine]

Here: www.equalityhumanrights.com/en/advice-and-guidance/separate-and-single-sex-service-providers-guide-equality-act-sex-and-gender

I'm off to read it...

I could cry reading this, in a good way.

Thank you to every single person who had even the tiniest hand in getting this looked at, discussed and through to publication. I know it has cost some of you dearly

When might it be lawful to exclude males but not TW?

Example given is suggestive. You could have a single female toilet, a single gender neutral toilet and a single male toilet. Then you could ask people to use the toilet for their sex OR the gender neutral toilet.

But let’s say you didn’t have space for a gender neutral toilet. This would suggest it would then be unlawful to insist a TW used the male toilet.

And I would tend to agree with that. A third space makes the exclusion proportionate (in the case of toilets).

But for something like a communal changing room, where nudity is likely to be involved, the bar to exclusion is lower and you wouldn’t necessarily have to provide a third space.

This of course will be tested in the courts. And judging by the history of who trans activists prefer to target, it will be small groups, ideally run by young women, Black women, women with limited financial resources who work with vulnerable women. Basically those easiest to bully.

Marks and Spencers will not end up in court.

Conflate was the wrong word, clearly, my mistake.

I really hope that I am wrong and that I am just being a bit dense in not seeing what everyone else is.

While I welcome any clarification of how to apply the law in practice, I am not sure that this goes far enough in protecting single sex spaces - as it states that it might be unlawful to exclude a TW who is presenting in the gender opposite to their sex from that opposite sex space/service.

@Lovelyricepudding

When might it be proportionate to exclude men but not transwomen? Surely if it is fine to let transwomen in then there is no reason to exclude other men?

As soon as you include some male people it's not really a single-sex service any more is it? So it's not longer relying on the single sex exceptions (even if it is pretending to). Presumably you could end up with a situation where a man says he is being discriminated against because a mixed-sex service (comprised of women and TW) doesn't allow other men.

The issue that still remains is that service providers will still be too shit scared to actually make use of the exceptions because of the narcissistic rage they will experience if they dare!

Example: if women of a particular religion or belief will not use the local swimming pool at the same time as men, women-only swimming sessions could be provided as well as mainly-mixed sessions.

I just keep thinking that all those who chant TWAW will just say that TW are not men, so they cannot be excluded.

gender in which they present

Are EHRC going to offer any advice about this? It is not enough to have the feelz you must also present according to stereotypes? Is that because they are not really single sex toilets but people in a dress toilets and people in trousers toilets?

This is a step forward but:

The problem with this from a small or medium sized business point of view - say a local chain of 4 or 5 clothes shops , or a small family run department store or restaurant - this guidance is all can and may and if.

So you don't HAVE to taken women's needs into account - you can just save your self the bother of the users' surveys or policy documents, record keeping, evidence maintaining that's suggested here. with the risk of a court case if you try and enforce single sex changing rooms and your paperwork is wrong. And just not bother having women only loos.

Until the law says you MUST rather than may take women's needs for privacy and dignity into account many businesses still won't bother.

‘or a small family run department store or restaurant’

Restaurants don’t always have separate toilets anyway.

I’m (personally) not that bothered about toilets. I’m bothered about refuges, breastfeeding groups, hospitals etc. If I go for a Thai meal with some friends I’ll usually be very happy using a single toilet.

Until the law says you MUST rather than may take women's needs for privacy and dignity into account many businesses still won't bother.

Agreed. This is still a problem. Similar to the sports guidance where they said you can have fairness for women or inclusion of males but not both. Many sports have decided fairness to women doesn't matter to them.

While I welcome any clarification of how to apply the law in practice, I am not sure that this goes far enough in protecting single sex spaces - as it states that it might be unlawful to exclude a TW who is presenting in the gender opposite to their sex from that opposite sex space/service

I agree

@mudgetastic

Seems good and clear to me Let's see how it's twisted

WE WON! - Foximono 4/3/22, shortly before self-combustion

It’s going down like a lead balloon on TRA Twitter. Apartheid. Stochastic terrorism. Judicial review.

I’d like to know how they are defining “trans” as while they state that sex is binary in U.K. law, “trans” is an umbrella term. However, the EHRC hasn’t said who would be included within their use of that term.

Judicial review.

I really really hope they try

‘However, the EHRC hasn’t said who would be included within their use of that term.’

Not sure it matters. Service providers can use the single sex exceptions and, if needed, also use the gender reassignment exceptions, so people of the sex you are excluding cannot access the service by invoking that protected characteristic.

@Lovelyricepudding

gender in which they present

Are EHRC going to offer any advice about this? It is not enough to have the feelz you must also present according to stereotypes? Is that because they are not really single sex toilets but people in a dress toilets and people in trousers toilets?

They really need to clarify what is meant by 'gender in which they present'.

Is a man in a dress presenting as 'woman gender'? Or is he just a man in a dress?

How does a woman present as 'man gender'?

@rogdmum

I’d like to know how they are defining “trans” as while they state that sex is binary in U.K. law, “trans” is an umbrella term. However, the EHRC hasn’t said who would be included within their use of that term.

I'm assuming based on the below they consider trans to be everything from Jamie Wallis MP upwards. Entirely self declaration.

You do not need personal information such as a Gender Recognition Certificate to make a decision. You only need to decide if your action is a proportionate means of achieving a legitimate aim. There is a risk of acting unlawfully whether the person has a Gender Recognition Certificate or not. The exceptions outlined in this guidance therefore do not depend on whether or not an individual has a Gender Recognition Certificate.

A person does not need to have Gender Recognition Certificate to be protected under the characteristic of gender reassignment. You therefore should not ask for one when deciding whether to treat someone differently or exclude trans people from your service. Asking for one could also be a breach of someone’s right to privacy.

If a person does disclose personal information, such as their Gender Recognition Certificate or application for a Gender Recognition Certificate, you must be aware of their data privacy rights. In some circumstances it is a criminal offence to share personal information relating to a person’s possession of a Gender Recognition Certificate without their permission.

You should also not make assumptions about whether or not a person is trans based on gender stereotypes, such as those based on appearance or clothing.

You should also not make assumptions about whether or not a person is trans based on gender stereotypes, such as those based on appearance or clothing.

Doesn't that contradict this part?

However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim.

So you can't make assumptions about someones trans-ness based on stereotypes, but excluding them from provision for the opposite sex if they are 'presenting as' the opposite 'gender' (based on stereotypes) might be unlawful.

Is trans-ness based on stereotypes or not?

I'm still not 100% clear, I suspect the EHRC isn't entirely clear in the absence of caselaw. This is clearer than what went before though, and there is much better guidance to providers on what circumstances it is legal to have single sex services that exclude trans people. Encouraging gender neutral alternative services is definitely a way forward. I don't see this as a particular significant change in policy (given the underlying law and guidance in statute hasnt changed) but a more useful statement of processes needed to justify any exclusion.

It would be helpful to know clearly:
A) are trans women with a GRC able to use single sex services for women where the service hasn't demonstrated a specific need to exclude trans people.
B) as above but trans women without a GRC
C) how you would enforce the above when you aren't allowed to ask to see evidence of biological or legal sex or draw conclusions based on how someone looks. The trans women who will end up being excluded will be the ones who just want to get on with their life and not cause a fuss while the piss takers will still take the piss.

What about Girlguiding?

Doesn't that contradict this part?

It appears to, yes.

Jamie Wallis MP may be trans but is presenting as male gender so...???

@Signalbox

The issue that still remains is that service providers will still be too shit scared to actually make use of the exceptions because of the narcissistic rage they will experience if they dare!

Yep, all those workplaces that have actively fucked over their female staff by making their toilets 'gender neutral' aren't going to simply change them back.