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...

@slightlysnippy

If I understand this section if you are a trans women with a GRC your biological sex can be read in the document as your sex stated on your GRC. Which means transwomen with GRC can not be excluded from a female single sex space..

I'm hoping I have miss understood

A TW with a GRC certainly can be excluded from a single sex women's service that has consciously applied the exemption under law allowed it if necessary and proportionate. The only uncertainty I see is whether she would be excluded (or not) from a single sex service that hadnt applied that exemption.

@slightlysnippy

If I understand this section if you are a trans women with a GRC your biological sex can be read in the document as your sex stated on your GRC. Which means transwomen with GRC can not be excluded from a female single sex space..

I'm hoping I have miss understood

No, I think that's incorrect.

From the extract @ItsAllGoingToBeFine quotes in her second post:

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. This applies whether the person has a Gender Recognition Certificate or not.

So it doesn't matter if you have a GRC or not. If excluding a trans person from a single sex service is a proportionate means of achieving a legitimate aim.

So for example, Brodie's Trust, which has been established to support women who have lost pregnancies through domestic violence has repeatedly been targeted by transwomen who say they cannot be legally excluded (the fact that they cannot have lost a pregnancy to domestic violence appears to be irrelevant). Now the EHRC has made it clear that group can legitimately be women only.

@dadjoke where does it state that exception when this page states trans reading the document reads biological sex as that on their GRC?

@JoodyBlue

Has any one found a clear description of what a "legitimate aim" is. Or is this a generalised term that is arguable in court, if not specifically described in the examples given in the guideance? With regard to the idea of enforcement. Up until very recently everyone assumed single sex spaces were without controversy. Society ran fine without any enforcement. I don't think the idea of enforcement has any relevance. It is guideance on how we agree to all live together well. A social contract.

From Croner's:

What’s a legitimate aim?
A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason.

Here are examples of legitimate aims:

The health, safety and welfare of individuals
Running an efficient service
Requirements of a business
Desire to make a profit

@Lovelyricepudding

They shouldn't be ignoring the actual words used in the act; 'gender reassignment' is defined, using 'trans' widens that definition.

Or does it narrow the definition of trans?

If trans is interchangeable with someone who has the protected characteristic of gender reassignment, surely, that would discount someone like pips Bunce. You have to be on a certain pathway. Not shilly-shallying back and forwards.

And it eliminates non-binary, doesn't it?

Thanks @Clymene this section answered my question

'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. This applies whether the person has a Gender Recognition Certificate or not.'

@Lovelyricepudding

I was just coming to mention that the main TRA twitter talking point seems to be that the 2010 Act doesn't explicitly mention that sex is biological. So glad you've already brought the argument here.

The judgement by the appeal court in the Forwomen Scotland Vs Scottush Government on the gender representation on public boards act rules that sex means biological sex. So that is settled.

That was a Scottish Court so not binding in England and Wales and the court highlighted that the ruling specifically related to the legislative competence of the Scottish Parliament and not about transgender rights.

Didn't the JLR case broaden gender reassignment to include NB?

[quote slightlysnippy]@dadjoke where does it state that exception when this page states trans reading the document reads biological sex as that on their GRC?[/quote]
publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1470/147010.htm

Exception allowing single sex services to discriminate because of gender re-assignment

The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.

@TheAbbotOfUnreason

Didn't the JLR case broaden gender reassignment to include NB?

It was a first tier tribunal so not a precedent and didn't actually rule that anyway.

@slightlysnippy

Thanks *@Clymene* this section answered my question

'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. This applies whether the person has a Gender Recognition Certificate or not.'

You're welcome

the ruling specifically related to the legislative competence of the Scottish Parliament and not about transgender rights.

It ruled on the definition of women in the EA (female biological sex) and the fact that the parliament did not have competency to change that definition.

Excluding transwomen from single sex spaces is not discrimination @DadJoke

@teawamutu

Only just at the beginning but already pleased to see this bit:

"We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate."

SO those with a GRC are now recognised in the Equality Act as having a biological sex which is the same as their legal sex stated in the GRC.

@Clymene

Excluding transwomen from single sex spaces is not discrimination *@DadJoke*

It would be if the single sex in question was male

We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate."

SO those with a GRC are now recognised in the Equality Act as having a biological sex which is the same as their legal sex stated in the GRC.

No, if you don't have a GRC your biological sex is your legal sex. If you do have a GRC your biological sex is different from your legal sex.

@Lovelyricepudding

"Case by case" means the situation not the individuals. So 'prisons' or 'rape crisis centre' is the case - do prisons need to exclude TW in order to avoid discriminating again st women. If yes then that applies to all TW.

It never meant that. It's quite clear from the wording of the stat code that it was intended to mean person-by-person.

This new guidance is in line with the EA itself but is out of step with the stat code.

We need new stat code that does not go beyond the law.

@Clymene

Excluding transwomen from single sex spaces is not discrimination *@DadJoke*

Legally, if you are treated differently as a result of a protected characteristic, that's, by default, discrimination. But there are legal exceptions: these are listed in the EA for trans people, and their exclusion must be legitimate and proportionate. If it turns out otherwise, it's discrimination.

@DadJoke

In the Equality Act 2010, "man" is defined as "a male of any age"; and "woman" as "a female of any age". The other terms listed in the question are not defined, except that "the protected characteristic of sex" is defined in Section 11 of the Equality Act as a reference to a man or a woman, or to persons of the same sex, as appropriate.

There is no mention of "biological sex" anywhere in the Act.

This guidance restates that providers "can" provide single-sex spaces which exclude trans people, not that they "must". They are under no obligation to do so. The default is inclusion.

Unless or until organisations decide to set up a single-sex space, and it's challenged in court by a trans person, the scope of "legitimate" and "proportionate" will remain nebulous.

Are you arguing that male and female do not refer to biological sex?

Providers are not obliged to provide single sex services. Nevertheless, harassment remains unlawful so if they're not using the tools provided in the EA, how else are they preventing it?

@Lovelyricepudding

We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate."

SO those with a GRC are now recognised in the Equality Act as having a biological sex which is the same as their legal sex stated in the GRC.

No, if you don't have a GRC your biological sex is your legal sex. If you do have a GRC your biological sex is different from your legal sex.

Ok. The guidance is still as unworkable and just as confusing as all the previous guidance. "Biological sex" has no legal definition. Only legal sex as recorded on a birth certificate. That is the same for intersex conditions. Whoever concocted this latest guidance is an idiot.

I think this is good. It explains the law in exactly the way I and many, many women here have always understood it.

Decisions have to be thought through from all angles (and all protected characteristics), proportional, reasonable, based on biological sex, case by case for the service/ activity not the individual. Reasonable discrimination, vs unreasonable discrimination is allowed is support of a legitimate aim.

That gender is stereotypes and stereotypical presentations, but not to make assumptions where people look gender non-conforming because they may be breaking down stereotypes rather than being ‘trans’. ( I actually really like that bit 👍)

I think this also makes it clear that we can ask about a person’s sex where it is unclear or where we might suspect someone is trans.

I think we need to start differentiating in speech between justifiable discrimination and wrongful discrimination, not short cutting by saying ‘discrimination’ as if all discrimination (ie differentiation or application of judgement) is bad when clearly it is not.

What a fucking mess the GRA is. One of the worst, shoddiest pieces of legislation ever to pass through Parliament.

And here we are.

@SpinningTheSeedsOfLove

What a fucking mess the GRA is. One of the worst, shoddiest pieces of legislation ever to pass through Parliament.

And here we are.

Yes. Astoundingly bad.

@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!

Agree completely. The guidance is here, but will say M&S and others have the spine to use it? How can it be enforced?

This bit - "If the toilets you provide for service users are also used as staff toilets, you will also need to take account of the Workplace (Health, Safety and Welfare) Regulations 1992 which require employers to provide a certain number of toilets and to provide separate toilet and washing facilities for men and women in some circumstances."

My workplace (and I imagine most "stonewalled" ones) have a policy which says anyone can use whichever toilets they like in accordance with their self declared "gender identity." The toilets are traditional separate male and female with cubicles and shared sinks. Apart from a few separate accessible toilets which are enclosed rooms with a sink and shower which have always been gender neutral.

This policy has already resulted in people using the opposite sex toilets (e.g. a woman who identifies as male using the mens and a man who identifies as female using the women's).

Does this guidance confirm this is unlawful? If so as I say I imagine loads of workplaces are breaching the regulations. Who is responsible for enforcing this?