LexMitior · Today 13:59
This policy look defensible to me and on challenge it should be fine
@LexMitior, I was wondering about whether this policy will work because of what Dr Michael Foran said here at Question 27 at the Parliamentary committeee on January 23rd
committees.parliament.uk/oralevidence/12639/pdf/
Q26
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.