Incorrect guidance on single-sex spaces and gender self-identification - gov.uk asking for examples

[RandySavage]

https://www.gov.uk/government/publications/call-for-input-incorrect-guidance-on-single-sex-spaces-and-gender-self-identification

Apparently this has not been well publicised - I cannot think why not.

This seems like a great opportunity for the marvellous GC Mumsnetters to have their voices heard. I don't believe there is anyone in the UK better informed on this subject than a reader of the Feminism: Sex and Gender board

Please read what is being asked for? The request is for examples of incorrect interpretations of the EA2010 excemptions by advisory bodies. They are looking for examples of where an advisory body has advised that it is illegal under EA2010 to exclude people from single sex services or provisions because they have the PC of gender reassignment.

All the examples of service providers who allow opposite sex users into what the vast majority of us would regard as single sex aren't relevant to this research. They are looking for the organisations that say that it is illegal to prohibit trans identifying people from single sex services and spaces.

Yes @JanesLittleGirl I have focused on exactly that. Examples where it says that it is illegal to exclude males from female spaces and vice versa if they are “trans” (trans is sometimes defined, sometimes not).

I have looked at the Rainbow Badge Assessment of nearly every trust that took part in the project last year.
The entire project is evidence of Stonewall imposing the law as they would like it rather than the actual law on the NHS.

I hope they'll be happy with a few examples or this may prove rather time consuming to complete.

Saving it for the weekend.

Thanks for the heads up and discussion.

Is this really about Stonewall?

@RedToothBrush i think they manufactured the virus in their gender lab but once they infected other organisations it just kept replicating itself and other organisations have repeated that advice without reference to Stonewall.

To my shame I used to lead an organisation in ED&I and my experience was that my peers were generally lazy, hard of thinking and fiercely protective of the halos our roles conferred. So much easier to copy and paste another organisation’s equality policy than write your own and actually do the thinking. Equality Impact Assessments are hardly ever worth the paper they are written on.

In (our) defence, the training we got was shocking, total capture. For example, there was one memorable example that said if a woman in a burqa wanted to play hockey or coach a children’s football team (still wearing her burqa) then the players and their parents should be educated about her faith. Nothing about health and safety or safeguarding.

This is the kind of thing I am reporting - from the website of a private sector organisation that does schools & teacher training. From their "how to be an inclusive school"

"Introduce gender-neutral facilities at school. For example, instead of only having male and female bathrooms or changing rooms, create at least one facility that can be used by everyone. Whilst it can be important to have single-sex spaces, it’s also vital that trans students are able to use the facility in which they feel most comfortable. If your school decides to do this, then make sure all students are educated about it."

Sounds illegal to me.

@RhymesWithOrange @RedToothBrush I've just gone back to the council policy I shared and at the bottom there are links to Gendered Intelligence and Stonewall. It really does all seem to trace back to them advising lots of people wrongly and then that metastasized by people copying and pasting other organisation's policies rather than writing their own.

It reminds me of the work the Cass Report did tracing back all the standards of care and finding that lots of them copied and pasted each other, or all traced back to one document but referred to each other as evidence of wide-spread consensus when in fact they were all just based on the same single source.

Is it worth putting this on AIBU
I seem to remember some parents having concerns about their young girls not going to the toilet all day to avoid the mixed sex toilets at school.

Would some of the companies who use Stonewall policies be worth sharing?

Can someone explain what the actual law is here though?

I thought that the EA states that gender reassignment is a protected characteristic. And 'gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.' - so really, self-ID.

Therefore under the Equality Act, the default provision is to not limit trans people and therefore the policy, by default, is to allow trans people to use any space they like based on self-ID. This is the legal default - and therefore all the policies you mention are not illegal.

However, the EA has an exemption where organisations can legally exclude trans people from single-sex spaces - toilets, changing rooms etc. are commonly accepted examples.

The crux of it here is... orgs can choose whether to allow self-ID or not. There's no legal or illegal about it? It's down to the organisation to choose. It's not illegal to exclude trans people from single-sex space, it just seems most don't.

That's the law whether you agree or not?

Happily will hear other interpretations.

Gawd that was a good answer by Kemi!

Kidspartytroll

Self-ID is not the law in the UK. Neither the EA nor the GRA make self-ID the law. The judgements in the cases involving For Women Scotland confirm this.

The EA protects people with the characteristic of Gender Reassignment from discrimination. That is, they may not be treated less favourably than other people of the same sex. It does not confer the right of a person with the PC of GR to use opposite sex spaces. Even when the man has a GRC with an acquired gender of female, he can be excluded from women's single-sex spaces if the exceptions in the EA are engaged - ie if to do so would infringe the human rights of women to privacy, dignity and safety.

Organisations can choose to infringe women's human rights and discriminate against women, but if they do they are liable. It just needs someone to take them to court.

But that's the thing, it's not written down or tested in law so no precedent exists for whether excluding trans people from same sex spaces is discrimination - legally that is. The EA protects trans people from discrimination and treating someone differently (not letting them choose a toilet) because of thier gender reassignment could be discrimination because that's the sole reason they're being treated differently.

So allowing trans people to use facilities for a particular sex is legal. As is not allowing it because there is an exemption.

I know self-id to change legal sex is not law and a GRC is required.

The EA protects trans people from discrimination and treating someone differently (not letting them choose a toilet) because of thier gender reassignment could be discrimination because that's the sole reason they're being treated differently.

Eh? The rest of us can't "choose a toilet" either, we use the one appropriate for our sex.

Stonewall actively campaigned to get rid of the sex exemptions and had it overtly written on their website. They were absolutely confident that they would successfully remove them from the EA, they had Crispin Blunt in EHRC and John Bercow as Speaker.

They advised many organisations to get ‘ahead’ of the law and get rid of single sex toilets and so on as a way of ‘saving money’ when they were sure their campaigning would be successful - so advised companies wouldn’t need to do it later when this ‘inevitable’ change in law occurred.

There is no provision in law which says anyone can self-ID. It's not a default position. There may be confusion but the legal situation is clear. Only a GRC changes your legal sex.

You've got the wrong end of the stick regarding discrimination protection.
Men who claim to be women (MCW) are still men. Men can lawfully be excluded from women-only provision on the grounds of sex, so a MCW who is excluded is not being treated differently from the other men.

If there was a men-only group and MCW were excluded then that would be unlawful discrimination on the grounds of GR. Because all the other men were allowed in.

If a coffee shop had a sign up saying they didn't serve MCW or WCM, that could be unlawful discrimination on the grounds of GR because all the other people are being served.

I'm not going to carry on with this because it's derailing the thread.

@Kidspartytroll the comparator is the person who doesn't have that protected characteristic - is the person with the protected characteristic being treated worse than someone without it.

So - man who know he's a man, or woman who knows she's a woman, neither have the PC of gender reassignment. Has right to use toilet that matches their sex.

Man who believes he's a woman or woman who believes she's a man and proposes to undergo gender reassignment has the PC of GR. Also has right to use toilet matching their sex. Doesn't have right to use toilet for opposite sex but crucially neither does the man or woman who doesn't have the PC of GR. No discrimination as the person with the protected characteristic is not being treated any worse.

Activists have tried to argue that in fact toilets are segregated by gender rather than sex but this doesn't hold up - hence the aggressive attempts to claim that trans people have actually "changed sex" when in fact all that has changed is gender. No amount of surgery or hormones can cause a human to change sex.

Now, if we get into people who have socially transitioned but no intention of surgery, there is a significant grey area. It's clear from Hansard that at the time the EA 2010 was drafted, "gender reassignment" was understood to be something well beyond mere social transition, ie. surgery, but along the way activists have pushed to redefine this PC as being gained by social transition alone.

The law is a mess. EA2010 is not precise enough which has allowed the PC of gender reassignment to be claimed by every Tom, Dick and Harriet (nee Harry). Education legislation requires schools to provide single-sex facilities for children over the age of 8.

It's interesting to read the debates in Hansard on GRC2004. There was a lot of very uninformed commentary but what is striking is the emphasis that this was a compassionate act for a very small number of people who were suffering from a debilitating condition. And that transsexuals were deeply concerned about their privacy. A lot different from the situation we have today.

Not just advisory bodies - public bodies or organisations that advise public bodies. So schools, hospitals etc all count.

The Minister for Women and Equalities is seeking examples of policy or guidance in which public bodies – or organisations that advise public and private organisations – wrongly suggest that people have a legal right to access single-sex spaces and services according to their self-identified gender.

The EA protects trans people from discrimination and treating someone differently (not letting them choose a toilet) because of thier gender reassignment could be discrimination because that's the sole reason they're being treated differently.

The EA doesn't say you can't treat people differently. It says you can't treat them worse purely because they have a PC. So a male who identifies as a woman can't be treated worse than male who doesn't. It doesn't say a male who identifies as a woman has to be treated the same as a woman.

Therefore under the Equality Act, the default provision is to not limit trans people and therefore the policy, by default, is to allow trans people to use any space they like based on self-ID. This is the legal default - and therefore all the policies you mention are not illegal.

Trans people are NOT being limited by being required to use the changing rooms of their natal sex though.

Being rejected from a hotel or job interview because they are trans is clearly illegal and what the EA is for. Not to provide access to facilities of their desired gender. As long as their access to said facilities is equal to everyone else's that's treating them as equal.

I said I would stop posting about this but I can see there is a confusion which needs to be nipped in the bud.

"Self-ID" refers to self identifying as having a legal sex that is different to your bio sex. It does not mean declaring that you have a trans identity. Any MCW or WCM has the PC of GR - as does anyone with a GRC, but only those with a GRC have changed their sex for legal purposes. The sex of the other MCW and WCM is not legally changed by claiming a trans identity.

I think the uncertainty XiaoXong refers to is whether non-binary people (or catgender etc, I assume) are covered by the PC of GR. That is nothing to do with self-ID.

So providing one male toilet and 58 female toilets in a workplace of roughly equal numbers of male and female employees isn't providing equal access and any male employee would have the right to have that situation addressed.

Good idea

My interpretation is org A tells org B that it is illegal not to let anyone who claims a trans identity into the female changing rooms. The reality is that it is perfectly legal to do so if the person doesn’t have a GRC (and in some cases even if they do) and you can justify it by eg persons of that sex would object.

it is basically about giving bad advice and not recognising the ability to use exceptions.