Baroness Falkner: trans activists will not sway rules in their favour

[ResisterRex]

This in the Telegraph

www.telegraph.co.uk/news/2022/04/08/equality-chief-trans-activists-will-not-sway-rules-women-only/

There must be an accompanying opinion piece which I'm trying to locate. But bits from the above are:

"In her first comments to a newspaper since publishing guidance stating that trans women can lawfully be excludedd from female-only spaces, Baroness Falkner of Margravinee said that her organisation had a duty to uphold the law independent of “campaign groups or vested interests”.
The chairman of the Equality and Human Rights Commission (EHRC) said that it had published a clarification of the law this week as there needs to be a “balance””_ between “competing” rights.
“The law is clear that organisations can sometimes limit access to their services to one sex,” Lady Falknerr_ said.
The EHRC has been threatened with legal action since its advice was published on Tuesday, and bosses within the NHS and other organisations have vowed to ignore the guidance."

And:

"Lady Falkner, writing in The Telegraph, said: “We do not make the law, but it is our regulatory function to uphold it, independent of government, campaign groups or vested interests.”"

Here it is:

www.telegraph.co.uk/news/2022/04/08/time-take-heat-trans-debate/

Behind a pay wall, but looks very interesting. I wonder who is trying to sue them - Foxy Kimono's outfit maybe? All they are doing is issuing clarification FFS!

@Rightsraptor

Behind a pay wall, but looks very interesting. I wonder who is trying to sue them - Foxy Kimono's outfit maybe? All they are doing is issuing clarification FFS!

If you're on a phone click the link then switch phone to flight mode.

Thanks Rex

That's a good article by the Baroness Falkner. It's such a difficult job steering the EHRC and bringing some common sense and proportion in the wake of the mayhem of the last several years. She's coming across as calm, poised and steady under fire, a voice of reason, sensibly appealing to the notion of fairness, so seldom heard in recent times.

Note the wording "just as it’s clear that trans people have the right to live their lives free of discrimination in the gender they identify with." That's identifying with, instead of identifying as. Perhaps that's an instance of her tactful and understated approach. I hope it will eventually have a calming effect at least on the wider world, if not those fussing and fuming and threatening all sorts.

The Telegraph article is also well written by Hayley Dixon, highlighting the personal abuse towards the Baroness and the NHS problem. There's a subtle touch where she alludes to the previous regime at the EHRC: "The conflict over gender identity issues has dominated her time as chairman of the EHRC, said Lady Falkner, who took over from David Isaac in 2020. Mr Isaac was previously the head of Stonewall."

Hah! at that little sting in the tail and even the tale. Yes, we know.

She’s such a steely woman. I admire her a lot.

There’s an interesting section in her comment piece: “ The Act confirms that, while you must not discriminate against someone due to their protected characteristics, there are exceptions which allow organisations to limit services to a certain group, provided the reasons are justified. The reasons could be for privacy, decency, to prevent trauma or to ensure health and safety.

Equally, it can be perfectly legal and appropriate for organisations to open their services to all groups. Our guidance urges service providers to adopt flexible policies that balance the needs of all users, based on their specific circumstances.

Is it the PSED that would help decide whether it is or is not legal to open your services to all groups? I understand there is a permissive law under the Equality Act - you are allowed in certain circumstances to offer single-sex services.

But what are the circumstances where you might be obligated to do so? Falkner is careful to say “can be perfectly legal and appropriate”, which suggests that sometimes it isn’t. But is that driven by the “legal” or by the “appropriate”?

As an aside, did the thread about India Willoughby's tweet disappear overnight or can I not see for looking? I suppose technically the screen grabs were repeating a very serious libel, but it really showed the extreme way TRAs are handling things at the moment. Wonder if IW had to delete the tweet as well - can't face the bird app this early.

It’s still there.

Oh yes, I couldn't see it but it's just popped up again.

I agree with Rightsraptor that this is merely clarification (reiteration) of existing law.

Any official body pointing out that it is not against the law to provide single sex services is welcome, of course, but my God, how did we get to the point where single wax services are being framed as an abberation, and perceived as negative, in the first place?

tabbycatstripy rightly points out that it is legal to provide single sex services and legal to provide the same services to all.

So we are left with no directive that these services must provide—at the very least—a single sex option.

Many of you will remember our poster in the south of England who cannot get her rape crisis centre to offer even one single session that is single-sex for females, despite there being counselling groups for women and transwomen, and also single sex for males (which would include transwomen).

None of this helps that poster whatsoever. From what I’ve read, despite the guidance, organisations are still being left to decide for themselves, and most will choose to carry on as they were, being “inclusive”.

What needs to happen is a “must” instead of a “can” for provision.

But having said that, ShagMe, if a woman can show that she has been excluded from a service by the refusal of that service to provide suitable facilities for her sex, would this not force the hands of providers?

Let’s not look to extreme examples, because sometimes they distort the debate.

An ordinary example of a woman who believes it’s indecent for her to be forced to change alongside male people at the gym, where no single-sex provision has been offered and no customer survey or research supports the view that her concern is that of an extreme minority. There is another gym nearby that offers single-services but it is too expensive for her.

Would she win a case of indirect sex discrimination?

Impressive woman.

Apologies re my deleted message. I’m genuinely sorry for overstepping.

Local authorities have lots of things to balance when spending money. And they must balance their budgets. So if they spend money on things with a poor evidence base or knowing there won't be takeup because women won't want to share certain spaces or services with males then they're failing in that regard as well. They have to take all relevant things into account.

@tabbycatstripy

But having said that, ShagMe, if a woman can show that she has been excluded from a service by the refusal of that service to provide suitable facilities for her sex, would this not force the hands of providers?

Let’s not look to extreme examples, because sometimes they distort the debate.

An ordinary example of a woman who believes it’s indecent for her to be forced to change alongside male people at the gym, where no single-sex provision has been offered and no customer survey or research supports the view that her concern is that of an extreme minority. There is another gym nearby that offers single-services but it is too expensive for her.

Would she win a case of indirect sex discrimination?

So far I’ve seen nothing that forced the hands of providers other than law. So far the threat of being targeted by TRA protests, Twitter pile-ons, and letter-writing campaigns labelling service providers anti-trans seems to have succeeded in forcing organisations—large and small—to ignore their lawful right to provide female-only provisions and, in some cases (Canada, not here), shut them down entirely for refusing to be “inclusive.”

For your example, I doubt it could be viewed as sex discrimination. Financial discrimination, to be sure, but that’s not a protected characteristic.

I agree extreme situations can distort the debate, but they must be considered. That is the point of the feminist pushback on this issue. “This never happens” actually does happen, and even if it happens rarely that is too often when it is more easily avoidable by enforcing single sex services and maintaining safeguarding.

Sorry. I’d like to find a compromise or middle way for all involved, but I don’t see a push for additional provisions, I see a battle for existing ones.

‘Financial discrimination, to be sure, but that’s not a protected characteristic.’

But the discrimination would be because they refuse to provide single sex services and that decision is more likely to impact on female people, who are more likely to self-exclude from a service because of that decision, than male people. The point about the other gym is that they might try to argue ‘You can just use another gym that does’ but actually that might not be true.

Once you accept (as the EHRC guidance and the law does) that privacy and decency are legitimate aims, the onus might then fall on providers to explain why they are not taking them into account when making provision for female service users.

Interesting points Tabby, I would have also thought that the refuge refusing to provide single-sex rape counselling, whilst providing several other groups, could be considered to be discriminating on grounds of sex, but I'm not a lawyer. Under PSED all public organisations (roughly speaking) must consider the impact of a proposed policy on each of protected characteristics, and show proof of what was done to mitigate the impact, in writing. A complaint about the refuge policy should go to the EHRC as the public body responsible for enforcing the PSED. Not sure what happens next, but as the EHRC has been uncaptured they should be able to help and support the complainer in their actions.

I am so grateful that we do have some persons with power on our side.

Yep, EHRC can take companies to court on your behalf, etc www.equalityhumanrights.com/en/our-legal-action/legal-responses

EHRC is an excellent body to have on our side, they are the actual interpreters and enforcers of the Equality Act. I felt deeply betrayed by them and GEO, and their attitude in Ann Sinnott case last year. But I can see why really - admitting any responsibility may lead to financial reimbursements, and is a big no-no for Civil Service. The new non-statutory guidance is good though, now on to redrafting the statutory one, I hope!

@LK1972

EHRC is an excellent body to have on our side, they are the actual interpreters and enforcers of the Equality Act. I felt deeply betrayed by them and GEO, and their attitude in Ann Sinnott case last year. But I can see why really - admitting any responsibility may lead to financial reimbursements, and is a big no-no for Civil Service. The new non-statutory guidance is good though, now on to redrafting the statutory one, I hope!

No.

The interpreters and enforcers (except in very exceptional circumstances) are the judges and the tribunals. And they will be looking at the law and the Statutory Codes. Not this week's nonsense from the EHRC.

Robin, you may quibble at my wording, after all that's your job. EHRC write on their website: 'Our job is to help make Britain fairer. We do this by safeguarding and enforcing the laws that protect people’s rights to fairness, dignity and respect.' You are of course correct, it's ultimately up to the courts to decide if the Equlity Act or the Human Rights Act were breached, once the case gets there, but I'm fairly confident the judges are fairly impressed when EHRC intervenes on behalf of the claimant, as happened in Maya Forstater's appeal, as you will no doubt be aware.

On the side note, I hope your book sales are going well.

I find it surprising from a legal professional to entirely exclude the possibility that your interpretation of the Equality Act may be inferior to EHRC, or at least can be argued against. Do you think if you call something a 'nonsense', then that is somehow the ultimate truth?