LangClegsInSpace · Today 08:17
Beeswood · Today 01:20
If a Trans woman has a GRC certificate and is Female on their birth certificate, can they be excluded under current law?
My understanding of the Haldane judgment is that no, they currently can't be excluded as they are legally female.
IwantToRetire · Today 16:28
If a Trans woman has a GRC certificate and is Female on their birth certificate, can they be excluded under current law?
Yes, the Haldane ruling is irrelevant as it merely confirmed the law as it currently stands.
So two contradictory views.
It is clear the Equality Act is completely confusing and badly designed especially in how it interacts with the GRA.
My understanding is the same as LangClegsInSpace’s
and is based on a Women and Equalities discussion held in the House of Commons
31 January with the legal expert Dr Michael Foran answering questions and explaining the issues of this interaction.
https://committees.parliament.uk/oralevidence/12639/pdf/
(It is all interesting but scroll to about Q26)
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.