Equality act question

[Catsanfan]

Hi all

Tired as child woke me up very early, so I apologise if this is a ridiculous question. I have been glimpsing the equality act due to a flyer/document my eldest child's school is pushing and an looking at 2 of the protected characteristics: gender reassignment and sex. To my mind, the 2 directly oppose each other and my brain is melting.

Help, wise women of mumsnet!

The Act aims to protect both groups rights, and balance them where necessary (e.g. by permitting single sex services for women which are not open to transwomen where this for a good reason and done in a proportionate way).

You need to have some protection for people who are going through gender reassignment too because you used to have the situation where people could be fired upon announcing their intention to transition.

The important thing is to understand how the Equality Act works. A protected characteristic is protected in relation to a reference comparator.

So a woman has the protected characteristic of sex meaning she can't be treated less favourably than a man in the same situation. E.g. can't be paid less if she has the same skills as a man doing the same job.

A person with the protected characteristic of gender reassignment is compared a person without gender reassignment. So a man who claims gender reassignment who starts wearing dresses and makeup cannot be treated less favourably than a person who wears trousers and no makeup, all else being roughly the same.

Both men and women have the protected characteristic of sex but only people with gender reassignment have that protected characteristic.

Thank you so much, makes more sense. So we ARE entitled to single sex spaces even if men say they are women. Why do so many toilets say that they are for whoever you identify as? Is that even legal?

Service providers have the option of limiting services to biological sex where it is a proportionate means of achieving a legitimate aim.

The problems however are twofold:

A) most service providers choose not to apply those provisions. They want to be seen as LGBT friendly or just don't want to risk litigation (there have been zero cases in this area yet); and

B) in practice, we have self-ID by default, because service providers won't know who has been through the process of obtaining a GRC (which is intended to act as a gatekeeping function) and who has just decided to transition. I know a lot of women who wouldn't mind post-operative transwomen sharing toilets/changing rooms, but GRCs are granted to those who are pre-operative and there is no way to tell who has a GRC or not in any event. IIRC the EHRC guidance says service providers should generally assume people will choose the appropriate facilities, which is effectively self-ID in practice.

It's absolutely considered proportionate to keep changing rooms and toilets single sex. Unfortunately Stonewall were very successful in convincing people that self-id was going to be introduced and it was better to make changes ahead of the law.

A person with the protected characteristic of gender reassignment is compared a person without gender reassignment. So a man who claims gender reassignment who starts wearing dresses and makeup cannot be treated less favourably than a person who wears trousers and no makeup, all else being roughly the same.

This is wrong.

A person with the protected characteristic of gender reassignment is compared a person without gender reassignment. So a man who claims gender reassignment who starts wearing dresses and makeup cannot be treated less favourably than a man who wears trousers and no makeup, all else being roughly the same.

The comparator for a male who claims the PC of gender reassignment is another male who does not claim the PC of gender reassignment.

This is important because if the comparator is another 'person', then a transwman - ie a male with the PC of GR - can claim they are being are being treated unfavourably to a woman - ie a female without the PC of GR. Using 'person' like this is Stonewall-style language to deliberately muddy the issue.

This is important because if the comparator is another 'person', then a transwman - ie a male with the PC of GR - can claim they are being are being treated unfavourably to a woman - ie a female without the PC of GR. Using 'person' like this is Stonewall-style language to deliberately muddy the issue.

The issue is actually slightly more complex as the comparator changes upon obtaining a GRC - see R (Green) v SSJ.

Transwoman without GRC - comparator is non-trans male

Transwoman with a GRC - comparator is non-trans female

What a mess.

The belief that it is impossible to change sex is also protected in law. If I see a male person presenting as, or claiming to be, a woman, my right to treat them as a man is protected.

Yet a person's GRC status is secret, so they may have the right to be treated by me as the opposite sex.

These two rights are in direct conflict with each other.

As the overwhelming majority of people claiming the PC of GR do not have a GRC, it would seem logical to apply the same-sex comparator until such time as they choose to produce their GRC.

Happy to be corrected there. Thanks.

The single sex exceptions were put in even for men with a GRC as I understand it. So women's sports can exclude all men regardless of possession of a GRC.

And absolutely the assumption should be that a man is legally a man unless he produces a birth certificate to prove he is legally a woman.

Passports and driving licences can be changed without a GRC so give no indication of legal sex.

The belief that it is impossible to change sex is also protected in law. If I see a male person presenting as, or claiming to be, a woman, my right to treat them as a man is protected.

This is not accurate. You have a right to your beliefs, but can only manifest them (i.e. put them into action) where this is permitted by law. If they have a GRC then they will have changed their legal sex. There are some areas where transwomen with GRCs are treated in ways which are not the same as women but you can't just generally ignore the GRC outside those areas.

As the overwhelming majority of people claiming the PC of GR do not have a GRC, it would seem logical to apply the same-sex comparator until such time as they choose to produce their GRC.

Again, this is not an accurate description of the law, which I think is what OP was looking for in this thread. Service providers can rely on the single sex exemption where appropriate to provide female only services. They should make sure they have sound reasons for doing so even if the only people who should be able to bring a claim are transwomen with GRCs.

Apologies if this sounds patronising but in threads like this I think we need to stick to what the law says, and not fall into the same traps as Stonewall.

Michael Foran is very good at explaining the law on this in an understandable way. He’s worth a follow on Twitter if you’re on there. Even he says it’s complex and it’s his area of expertise so it’s no wonder the rest of us have brain meltdown when trying to grasp how it all works.

https://thecritic.co.uk/on-protecting-characteristics/

Apologies Jellysaurus I somehow missed this but if your post!

Yet a person's GRC status is secret, so they may have the right to be treated by me as the opposite sex.

I probably sounded too harsh as I see so many people overstate the importance of GC beliefs being protected. It is very important but where it conflicts with the GRA, the GRA usually wins! The courts are going anyway it seems like even without a GRC certain things like using sex-based pronouns may be harassment.

I clearly need a coffee. Apologies again.

Great informative comments. The worry in relation to the school context mentioned by the OP is that schools have been told by trans activists to see children as having the capacity to consent to "gender reassignment", even toddlers. When all this mess was enshrined in law, MPs never anticipated that that it would ever be applied to children, so they were not mentioned in the legislation. But as everyone involved in safeguarding children knows, as soon as there's an opportunity, some adults will exploit it.

We're now in a position where even the youngest of children have been taught that their bodies may be incorrectly sexed but can be fixed with drugs and surgery - and that's a great thing yay!

In the absence of a clear distinction between adults and children, those working with children have been pressurised and threatened to abandon safeguarding and immediately affirm, even little children. The Rachel Meade case shows how extreme these pressures are in social work and they're identical in education, the NHS, charities & politics.

Until the vulnerability of children to social grooming / contagion is accepted, nothing will change. I fear that the adults dismissive of the need to safeguard children are currently in control and the evidence shows they're reluctant to give up that power.

Not offended at all, @AmateurNoun. IANAL and clarity is crucial.

Service providers can rely on the single sex exemption where appropriate to provide female only services. They should make sure they have sound reasons for doing so even if the only people who should be able to bring a claim are transwomen with GRCs.

From a gender critical POV this is both common sense and compassionate. Firing an employee, or refusing service to a customer, because their cross-dressing makes you uncomfortable is arseholery of the highest degree. Refusing to allow an employee to use opposite-sex toilets, or refusing intimate services to a customer of the opposite sex to you, because their cross-dressing makes you uncomfortable is entirely reasonable.

Even if you apply the same-sex comparator until such time as the trans ID'd person chooses to produce their GRC, you don't need to be an arse about it.

It is very important but where it conflicts with the GRA, the GRA usually wins!

Do you mean the EA here? A person without a GRC can't be protected by the GRA because they don't have a GRC. But they still have protection under the PC of gender reassignment in the EA.

Do you mean the EA here? A person without a GRC can't be protected by the GRA because they don't have a GRC. But they still have protection under the PC of gender reassignment in the EA.

I was particularly thinking of s9 of the GRA (the one that changes legal sex and gender). What I meant is that you can believe what you like, but the GRA changes the transwoman's sex/gender in the eyes of the law, and there are only limited exceptions where you are allowed to treat them differently from women regardless of any views held.

The PC of gender reassignment under the EA is a bit of an odd one because it was really intended to protect against getting fired from work, protecting time off for surgery etc. This is why it applies as soon as the transperson announces they are considering reassigning their gender. I don't think adequate consideration was given when the legislation was created to things like compelled pronoun use, and there have been ET decisions where it has been (wrongly IMO) suggested that it provides an immediate right to use toilet/shower facilities of the other sex - eg V v Sheffield Teaching Hospitals NHS

I think it is worth reading and keeping a copy of the letter Kemi Baddenoch wrote to public authorities re implementing the EA.

ie where there are 2 different protected characteristic groups, you cant treat one group as being more important than the other eg toilets there should be single sex factilities (note the word sex - biological reality) and gender neutral ones.

Most of the court cases (and all the legal personalities making money and their reputation about this) are about redressing the imbalance that has happened because of Stonewall training.

So in fact it isn't difficult, it is just that everybody assumes that women shouldn't be so damned uppity as to demand that they have their rights protected. And however awful the single sex examptions are in terms of how it is phrased, the problem is not enough organisations use it when they well could. eg prisons, hospitals.

So MRAs who has always though women are just too demanding and TRAs who want to colonise women's lives have been working hand in hand to erase women's sex based rights.

So to quote KB:

Many people are under the misconception that the act protects groups. It does not. It is about protected characteristics. It is important to remember that every single person has a protected characteristic therefore the act protects all individuals. The 9 protected characteristics in the act are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

I would like to be clear that there is no ‘hierarchy of rights’ under the act, therefore we should not hold one protected characteristic in higher regard than another.

Full letter here https://www.gov.uk/government/publications/public-sector-equality-duty-guidance-for-public-authorities/letter-to-public-authority-leaders-from-the-minister-for-women-and-equalities

Toilets and changing rooms tend to be where these two parts of the equality act can be in contradiction
(the other is obvs refuges and changing rooms)

Most new buildings have individual cubicles behind a door from public space with a shared hand washing space, and these can be used by either “any gender” (unusual), or the gender one identifies as (more usual)
there will also be an accessible toilet, with hand washing facilities inside the cubicle which opens to public space. Sometimes this is also the disabled toilet, but not always

I’m pretty sure the question of pronouns has not yet been addressed in case law. In the Forstater case, it was established that she could hold the belief that sex existed and was immutable, and sometimes that matters, but it was also stated that this did not allow her to act exactly as she wanted. The specifics regarding what she would be expected to do and what would be illegal behaviour was not established or even explored.

They did specifically refer to "misgendering" in Forstater. They didn't set out what was misgendering and whether it would amount to harassment but the implication is that deliberately using pronouns that someone doesn't want may be harassment. These are non-binding comments, but this seems to be the way the Tribunals are going on this. I can vaguely recall at least one ET case where a transwoman won a harassment case where one of the things they complained of was "misgendering".

“You need to have some protection for people who are going through gender reassignment too because you used to have the situation where people could be fired upon announcing their intention to transition.”

Personally, I don’t think men who cross dress for erotic purposes should be allowed to bring their fetish to a work in a number of roles, like any that involved children for example.

Or women

I have an additional query on this topic. GR is a PC and the definition of GR (as I understand it from the EA) is anyone from the planning stage of changing gender to those who've hand cross sex hormones/surgery. In the context of a school, what does this mean? That an 11 year old boy who is planning his transition is thus protected under the EA giving him rights to the girls changing room? I find this hard to believe but I'm planning on escalating things at our secondary school and I want to be crystal clear before I begin. The school quotes the EA and has the correct list of PCs. I was under the impression that the PC of GR was only from the point the person had either received a GRC or lived 2 years as opposite gender.

A person can't apply for a Gender Reassignment Certificate until they're 18 so until then can't be protected by law in to using the wrong-sex spaces and sports. So I'd have thought that the protected characteristic of GR can't apply to kids. It shouldn't really, as they are kids and kids change their minds and identify as different people every month depending on the current trend / Netflix show.

Pretty sure the PC of gender reassignment is independent of holding a GRC.

From the Equality Act:

(1) 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.

'...is proposing to undergo...' That could cover children saying that they are not what they are.

Madness.