UK Government confirms it will block Scottish GRR

[IwantToRetire]

www.bbc.co.uk/news/uk-politics-64288757

Lady Haldane's ruling made clear that SSE could be enforced where appropriate but "for all other purposes" someone with a GRC was the other sex.

I am utterly confused about all this. I thought the reason Haldane's ruling was contentious was precisely because it said that someone with a GRC legally became the other sex. Indeed, the EHRC's response to the ruling was to say:

"We welcome this judgment which confirms that the effect of a Gender Recognition Certificate is to change a person’s legal sex, including for the purposes of the Equality Act."
(www.equalityhumanrights.com/en/our-work/news/statement-following-lady-haldanes-opinion-petition-women-scotland-ltd-judicial-review)

Is the EHRC wrong? Am I wrong? What is going on here?

I think it is confusing and that Stonewall inserted it’s interpretation of this to confuse the matter for lots of government and charitable bodies.

NS hgas boxed herself in politically with this one. On any other issue she could use it as a proxy for the independence fight but not on this issue, which is so divisive, and her proposed legislation frankly dangerous and nuts.

She knows this is not the hill she wants to die on for independence. Your move Nic.

I think Haldane basically says someone with a GRC is their chosen sex (legal sex) and should therefore be included with that sex. I think they can still be excluded under the specific single sex exemption clause which allows people who have the protected characteristic of gender reassignment to be excluded (e.g. for refuges etc). But that's the exception rather than the rule and has to be actively applied and justified.

I think, but I'm happy to be corrected cos the whole thing is a mess.

Yea this is what I thought too, that sex is defined as legal sex, and not biological sex. So a man with a GRC is a woman for legal purposes.

Even though it was in many ways an unwelome ruling, it was a positive thing to have that clarity before the bill was passed. Politicians shouldn't have pretended that this affected no one other than the GRC holder.

Hopefully they scrap the GRC all together

@IwantToRetire

The Policy Exchange document does cover single sex exemptions there are several pages on the topic see p39 onwards.

One of the issues is that the exemptions only apply to services but not to single sex associations and schools
p45
"The above analysis applies to single-sex services. It does not apply to single-sex associations or schools. Much of the commentary on this Bill, including the arguments advanced by the Scottish government in defence of it, have assumed that concerns relating to single-sex spaces are exhaustively covered by provisions within the Equality Act dealing with single-sex services. It is important to set out the law as it related to single-sex associations and schools as it is different to that which applies to services. Most notably, there is no exception for exclusion on the basis of gender reassignment."

So where the EA defines man/woman as female/male of any age is that definition relating to “legal” sex? Seems so unlikely to me that they didn’t mean biological sex when they wrote the EA.

I think this will be the subject of the Radio 5 Live call in at 10am.

The problem is that they didn't define sex as biological sex. Therefore, although parts of the exemption wording may more logically seem to apply to biological sex, the fact that GRC change sex for all purposes means that unless legislation specifies biological sex then it means legal sex.

This is why the petition to update the EA to mean biological sex is so important.

It's a mess. Lady Haldane correctly demonstrated that the law holds two contradictory positions at once.

1. That women are entitled to single sex (male free spaces)
2. That males can become women

Either #1 is true or #2 is true.

Either we are able to exclude males on the basis of sex, or males are able to identify as female.

I did not know it didn't cover schools. That makes the push to move the minimum age to 16 a really big deal for those who choose single sex education.

I know - how was it that the implications weren't considered - it's what happens if legislation is rushed through without taking proper expert advice. I think that could reasonably said about all the legislation in this space, the GRA, the EA and now the GRR.

It is? Are you listening? An SNP MSP who fully supports the GRR and Tory MP Caroline Noakes pretty much supports it too and is mainly frightfully worried about trans people being demonised. So, a great balance, as is to be expected.

20 mins in and no callers allowed on yet.

Sounds entirely par for the course on The Right Side of History.

Parts of the BBC aren’t even trying to hide their bias anymore.

So is the situation now that women can exclude the majority of men on the basis of sex but the remaining men must be excluded (under the exceptions) on the basis of gender reassignment? So all men can still be excluded but you have to use 2 separate mechanisms to do so?

I’m still struggling to wrap my head around the meaning of that judgment.

I just caught the last 5 mins of the 5 Live programme. My god the trans person was useless, and had to be asked to keep to the actual issues rather than detailing their trans journey. They actually did admit there was an issue with prisons “if the trans person had not had any surgery”.

In case anyone is interested, James O’Brien just starting a phone in on LBC on this topic

It appears to be even more complicated than that. The exemptions apply to services but not to single sex associations or schools.

From the Policy Exchange document
"Section 101 of the Equality Act sets out provisions for membership within associations. Section 101(1) prohibits discrimination in the admission or terms of admission of members. Schedule 16 sets out certain exceptions to this prohibition of discrimination. Most notably, sch.16 para.1(1) states that:
An association does not contravene section 101(1) by
restricting membership to persons who share a protected characteristic.
This means that single-sex associations are free to discriminate on the
basis of sex but not on the basis of any other protected characteristic,
including gender reassignment. Drawing upon the analysis set out above,
if Lady Haldane is correct, we can conclude that female-only associations
can exclude all legal males, be they biological males or GRC holding
biological females, subject to justification texts. But they cannot exclude a
GRC holding biological male."

So a public swimming pool could restrict it's changing rooms to biological sex if it was proportionate etc.
If I set up the MN Women Only Swimming Club and there were more than 25 members. The club would not be able to exclude a GRC holding male from membership. So if we hired the same swimming pool we wouldn't be able to prevent a biological male with a GRC from joining us but we could exclude a transman with a GRC"

Very logical...

Oh wow. That’s incredible. I guess atm it won’t apply to schools but if they manage to lower the age to 16 or below that’s going to create a major headache for single sex schools isn’t it?

It is. There is a whole section in the report about the impact on single-sex schools. Nobody needed to consider that before because the minimum age for a GRC automatically solved the problem. And yet the Scottish Government apparently had full legal advice on the GRR and were confident it didn't impact the operation of the Equality Act 2010.

And that would impact single sex schools in rUK too, as you could easily have border hopping.

Ignoring (as far as possible) feelings about whether the GRR is right or not, it does seem like Westminster have a valid case that this has an impact outside Scotland and an impact on the EA. Haldane has served to make that very clear.

Part of the problem is that these places only get scotgov funding if they are trans inclusive. So there is no incentive to protect single sex spaces.