How a GRC changes the way discrimination claims work

[frazzled1]

twitter.com/michaelpforan/status/1623734652031705092

Interesting Twitter thread setting out how a GRC changes the legal test in discrimination claims. Worth a read.

You’re protected from gender reassignment discrimination whether you’re legally male or legally female but the legal test will be different.

For direct discrimination you need to show that someone who shares all other characteristics with you except gender reassignment would be treated differently.

So if you’re legally a woman you need to show that a biological female would be treated differently to you: if they would then you can sue for gender reassignment discrimination. If you’re legally male you need to show that a biological man would be treated differently.

So a GRC changes your legal sex and therefore changes who you can use as the comparator. A biological man or a biological woman.

If you have a GRC you are legally that sex and that will mean you can sue in that sex for discrimination. If you’re legally a woman you sue as a woman when you’re excluded from a women only service. That will matter and might make it easier to win than if you were a man.

If you’re legally a woman you sue as a woman when you’re excluded from a women only service.

Except that in this example the EA Single Sex Exemptions specifically say a trans women can be excluded from women only services.

It seems more and more these interpretations are just personal opinions.

One of the so called legal experts said that associations couldn't use the single sex exemptions, and then the next week Bristol SU said they were wrong to stop women from having an association just for biological females, quoting the Equality Act.

There seems to be so much confusion when it comes down to it. No wonder fewer organisations are offering sex based spaces for women any more, even though the exemptions supposedly make this possible.

The all ‘legal’ purposes of the GRA originally meant things like driving licences. Not challenging the Equality Act exemptions.

It seems more and more these interpretations are just personal opinions.

They are, remember that there isn't much case law, and these cases don't generally get past the lower courts.

There seems to be so much confusion when it comes down to it. No wonder fewer organisations are offering sex based spaces for women any more, even though the exemptions supposedly make this possible.

Hundreds of women's groups throughout the UK continue to use the EA single sex exemptions. (The choice of some groups in Scotland not to use the EA SSE is part of trying to under mine them.)

Do not get taken in by these type of statements. They are intended to make you doubt they work.

So please dont listen to those who are trying to undermine our rights. ie repeating them you are only echoing their aim of saying women dont have rights.

The EA and the single sex exemptions continue to exist and be used as they have since the day the Bill was made law.

See for example this list of groups - and no they are not including trans women as women because they are following the law of the EA SSE www.womensgrid.org.uk/?cat=156

I'm not getting "taken in" by anything. The law isn't clear, and it's contradictory. TRAs have used that to their advantage. The case law which exists, plus the Lady Haldane judgment, shows that the GRC is interpreted as a change of legal sex, and is a higher bar in a discrimination claim.

And yet nobody is supposed to ask whether someone has a GRC or not?

There was the NHS catering worker in Sheffield who was using the female changing rooms, including showers. He was in there with his penis on display. But the judge at the ETA found he had been discriminated against because management wouldn't have treated a woman in the same way. (I think that is what it was). There were certainly opinions voiced that the judge had used the wrong comparator - she should have used a man instead of a woman. I can't see a GRC is relevant here anyway as it's male genitalia in with women, so should be 100% wrong.

I get so confused!

It's an insane mess from top to bottom.

According to Anya Palmer in a blog on the Legal Feminist site www.legalfeminist.org.uk/author/anya-palmer/, the claimant (the man in question) did not at any time in the proceedings say he had a GRC. No-one know whether he did have one, but the fact that he did not rely on a GRC in his case makes it highly likely that he didn't.

Therefore Anya is of the opinion that the correct comparator would have been a male who did not have the protected characteristic of gender reassignment. Instead the tribunal used the comparator of a biological women (the tribunal used the odious term "cisgender woman").

I infer that Anya is of the opinion that in a case of this sort, a GRC does make a difference.

As far as I am aware (and I have been reading many of his tweets) he is saying that yes, a trans person with a GRC can be excluded as per EA but it would be much harder to do so because they are legally the opposite sex. So for a TW the comparator would be women and it would be direct discrimination.

He is explaining things really clearly and he does not support the GRR or the erosion of womans rights.

Robin Moira Whitecus definitely not a fan and has been quite condescending towards him, which I read as meaning he understands the law and not the version Robin wants.

Robin Moira Whitecus definitely not a fan and has been quite condescending towards him, which I read as meaning he understands the law and not the version Robin wants.

Me too.

Given what he says about the effects of a GRC in making someone able to sue for discrimination, with the comparator being the sex they are being excluded from, on grounds of discrimination against Gender Reassignment, under the Equality Act,

what does Gender Reassignment mean for someone without a GRC?

Also, please can anyone explain the difference between Gender Reassignment and ‘gender identity?

There is a definition of 'gender reassignment' in the Equality Act 2010: "A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

As far as I can see, there is no definition of 'gender identity' in legislation.

There are references to 'gender identity' in legislation. Some refer to GIDS and the Cass Review.

However, 'gender identity' has been shoehorned into the The Homelessness (Suitability of Accommodation) (England) Order 2012 - someone has evidently added a spurious protected characteristic and whoever reviewed the legislation has either overlooked it or deliberately left it in (my emphasis below).

"(e) the local housing authority are of the view that the landlord is not a fit and proper person to act in the capacity of landlord, having considered if the person has:
...
(ii)practised unlawful discrimination on grounds of sex, race, age, disability, marriage or civil partnership, pregnancy or maternity, religion or belief, sexual orientation, gender identity or gender reassignment in, or in connection with, the carrying on of any business;"

www.legislation.gov.uk/uksi/2012/2601/article/3/made#text%3D%22gender%20identity%22

There may be other such examples of adding a spurious protected characteristic to legislation, but I don't have time currently to go through all the references to "gender identity" using the Advance Search function on www.legislation.gov.uk/

I think the definition of gender reassignment in the EA is too vague and is easy to conflate with ‘gender identity’.

Chersfrozenface · Today 09:46

Many thanks for your answer, including the Equality Act definition of Gender Reassignment.

In practice though, isn’t a male who says they identify as a woman, essentially saying they are a “ person [who] has the protected characteristic of gender reassignment” because they are “proposing to undergo, [are] undergoing or [have]undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

After all they only have to “ propose”, but not actually do anything.

Even if they were to “act” to change attributes of sex other than physiological, couldn’t this just mean hair, etc on the one hand; or a name and pronouns on the other?

GRC or not, I won't accept any body that was born with penis & testicles in places where I don't want them.

Back to the NHS Sheffield & catering TW case, as I understood it at the time the NHS would have to have appealed the judgement but they were never going to do that, so now lots of women, in the NHS at least, will now find it much more difficult to complain about dicks in changing rooms.

If you’re legally a woman you sue as a woman when you’re excluded from a women only service.

Can it go the opposite way? A woman sues a service for not upholding single sex space and allows a male in even with grc.

It's transgender that's a protected characteristic, sex is sex. They're still male.

Rightsraptor · Today 10:08
GRC or not, I won't accept any body that was born with penis & testicles in places where I don't want them.

Back to the NHS Sheffield & catering TW case, as I understood it at the time the NHS would have to have appealed the judgement but they were never going to do that, so now lots of women, in the NHS at least, will now find it much more difficult to complain about dicks in changing rooms.

I agree, and although various people including the Government say there can be discrimination on grounds of sex in certain circumstances like changing rooms, if judges and lawyers disagree, who wants to risk getting sued and losing huge amounts of money?

I don't know if you can sue as a women, at least not under the sex characteristic.

You have the same sex characteristic as the TW with a GRC do there is no discrimination to you.

The TW could sue i think because they are being treated differently from other women because of their gender Reassignment.

So actually I think a male with a GRC essentially has more rights than a women.

That is my reading and I am not an expert in law.

Pretty shit though isn't it.

So actually I think a male with a GRC essentially has more rights than a women.

Christ. If there was ever evidence that this is the patriarchy / men's rights at work, then this is it.

The whole thing needs to go.

I mean, "gender reassignment" shouldn't even be a phrase. Gender is nowhere satisfactorily defined, least of all in legislation - sex is the only factual characteristic.

The nearest I can find to a definition in legislation is in the GRA 2004 which includes the following words (my emphasis): "A person of either gender who is aged at least 18 may make an application for a gender recognition certificate..."

By which I presume that sex was originally meant, wince 'either' can only refer to one of two, and there are two sexes. This is only an inference, though.

If sex was actually meant, it cannot be reassigned, since it was never assigned in the first place, it was factually detected, observed and recorded.

wince = since, obviously

Although a lot of wincing does go on.

From a brief look at the exemptions (boy in girls' under 13 football team and he scores all the goals) Bristol SU is in the right rather than the lawyer. Proportionate includes dignity and privacy - if the women's group are discussing specifically female issues then dignity, privacy and also aim of the group come into play. In sports it is fair play and safety as well as dignity and privacy (e.g. in changing rooms).

An interesting excerpt from this Parliamentary committee meeting:
Women and Equalities Committee
Oral evidence: Gender Recognition Reform (Scotland) Bill and Equality Act 2010, HC 1098
Tuesday 31 January 2023
Ordered by the House of Commons to be published on 31 January 2023.
Watch the meeting
Members present: Caroline Nokes (Chair); Elliot Colburn; Caroline Dinenage; Rachel Maclean; Kate Osborne; Ms Anum Qaisar.
Questions 1 - 55 Witnesses
I: Naomi Cunningham, Barrister, Outer Temple Chambers; Lord Falconer of Thoroton, KC; Dr Michael Foran, Lecturer in Public Law, University of Glasgow; and Robin Moira White, Barrister, Old Square Chambers.
Written evidence from witnesses:
committees.parliament.uk/oralevidence/12639/pdf/

Chair: Can I just finish with Lord Falconer? This could be a yes or no:
would it be helpful if there were a definition of sex in the Equality Act?

Dr Foran: There already is one.

Chair: There is an understanding of it. There is not a specific definition.

Dr Foran: Sex is if you are a man or a woman, and then the definition of man is a male of any age, and the definition of a woman is a female of any age. They have the definition. What they do not have is clarity.

Chair: The Haldane judgment interpreted that differently.

Dr Foran: Yes, it did. The Haldane—
Chair: Following the Haldane judgment, would it be helpful if that were
revisited?

Dr Foran: Absolutely. The issue with the Haldane judgment as it arises for all the purposes that we are dealing with here is that up until that point, we were really not sure whether or not sex in the Equality Act, as modified by a GRA, first, does modify the Equality Act for the purposes of the claimant, somebody who has a gender recognition certificate, whether they would be classed as male or female for the purposes of a direct discrimination claim. The Haldane judgment goes further than that because it says, effectively, that the definition of sex in the entire Act becomes legal sex. That means that single sex spaces become single legal sex spaces, and what it then means is your justification for exclusion will hinge partially upon whether or not the person is of the characteristic legally that that space is. The test is the same. It is still a proportionate means of achieving a legitimate aim, but whether or not you are legally the same person of a space or a service that is set up for that legal category, not biological category, will be relevant for determining whether or not exclusion is proportionate. The proportionality—

Q27 Chair: Lord Falconer, do you want to comment on that?

Lord Falconer of Thoroton: Michael has made it incredibly complicated. The Gender Recognition Reform (Scotland) Bill does not change the basis on which you make a determination on whether or not—

Dr Foran: No, it changes whether or not you can sue. The policy arguments will not be changed. You could introduce a policy that bans all males from female prisons if you want, but you could be sued for that. You could be sued for gender recognition discrimination. The question about whether or not you have a gender recognition certificate changes the nature of that suit that you make from an indirect discrimination claim to a direct discrimination claim, subject to the same justification test. Is it a proportionate means of achieving a legitimate aim? If you think a court will possibly come to a conclusion that the exclusion of this legal woman who is biologically male and that there is a less onerous way to achieve the legitimate aim of providing security then the policy will be struck down as unlawful. If you want to ensure with absolute certainty that no rapist makes it into a women’s jail, you need a blanket ban, and blanket bans can be struck down by courts. You need to legislate to have that ban in place. Policy documents, guidance, will not do it because the legislative framework is as it is and it is hooked on to a proportionality test.

Chair: Elliot, did you have a question you wanted to put?

Lord Falconer of Thoroton: Could I just come back as Michael slightly cut me off.

Dr Foran: Sorry. I apologise for that.

Lord Falconer of Thoroton: What he said was so misguided. Can I try and make this real? Suppose you were the prison Minister, as I was, in relation to this. You have got to address this on a factual basis. It does not matter whether you have a gender recognition certificate or not. You have to work out whether it is safe for somebody and that is exactly the way the courts will approach it. This idea that the GRC is going to make the difference is complete academic nonsense. The prison Minister has got to address himself to the question of what is the basis upon which I let somebody into the female estate if they are a trans woman. The recent case in Scotland indicates you would never let somebody in those circumstances in, and that is the announcement Brandon Lewis or Dominic Raab made in October. None of this is changed by the Gender Recognition Reform (Scotland) Bill. You have to just look at it on the base of the facts on the ground at a particular time.

Naomi Cunningham: Can I come back in please?

Chair: Yes.

Naomi Cunningham: I am not an academic. I am a practitioner of some horrible number of years’ experience in discrimination law, and I completely agree with Michael that the possession of a GRC makes it more complex. Lord Falconer is half right—

Lord Falconer of Thoroton: More complex.

Chair: Can we please be polite to other witnesses? Thank you, Lord
Falconer.

Lord Falconer of Thoroton: I apologise. I do apologise.

Naomi Cunningham: Thank you. Lord Falconer is half right in that a gender recognition certificate is not simply an access all areas pass. A gender recognition certificate has not made the difference to the Scottish prisons policy because the exceptions that allow service providers, public authorities, employers, schools, etc, to discriminate on grounds of sex and gender reassignment when it is necessary for them to do so are permissive not compulsory, and it is starting to look as if they ought to be compulsory because they are now coming under so much pressure, but under the Equality Act, as it stands, they are permissive not compulsory. Something like the prison service can perfectly lawfully operate a policy that does not make proper use of those permissive exceptions allowing discrimination.
The problem comes when a service provider or public authority etc tries to and wants to do the right thing and provide a single sex service when it is necessary and is faced with a man who identifies as a woman who says, “That’s not lawful. You are discriminating against me.” If he does not have a gender recognition certificate, the answer is very plain and simple. The answer is, “Sorry, you are a man. As far as the law is concerned, you are a man. You do not have a gender recognition certificate. You are legally male. This is a women-only space, a women- only service etc. You cannot come in and that is a flat, simple answer.” That is easy for any little service provider to operate.

If that same man has a gender recognition certificate declaring him to be a woman, the situation is very different. At that point, it is no longer sex discrimination—which is, by definition, permitted if it is a lawful single sex space or service—it becomes gender reassignment discrimination and then it has to be specifically justified. We can argue about whether that is necessarily case by case or policy by policy, but it is more complicated. The legal route is more complicated. For a small organisation especially, but we have actually seen for larger organisations, it is pretty daunting. They need to take legal advice. They probably cannot afford it. They do not really understand what the issues are. They may well think, faced with a man saying, “My birth certificate says I’m a woman” that they have just got to give way and let him in even if that means their core

Yes but the BU case didn't go through the courts did it? It was an out of court settlement. The courts may have come to a different conclusion.

These laws are supposed to be guides, as well as governing how people act. If nobody can even understand them, or agree on how they work, I would suggest they're not fit for purpose.