Looking for help keeping a women's group to women only....

[CurtainsToYou]

NC'd but been on these threads for a while and thought I knew the challenges, but now I'm involved in a group going through this and realising that actually I'm lacking in law/facts/examples to reference to!

I'm sure there has been a similar thread on here in the last 12 months but I cannot find it, despite searching. Can anyone remember the thread with similar info or offer any help?

I am a member of a women only group. It is a small registered charity. We are now going through the policies about whether we can remain women only or not. This obviously means we have to decide what we are accepting as a 'woman' (although I can't believe I'm writing that!).
There is a lot of reference to the WI's 'living as a woman' which I don't agree with in general, but especially here as the activities of our charity mean we are often away in small groups or pairs and staying overnight in various accommodation types/set ups and sharing bathrooms etc.

I'm trying to push for decision to be made via 'biological sex' and therefore using passport/birth certificate (although from reading I understand passports can be changed via Dr's note or transition).

I have read the Charities Commission info on this and am confused as both sex and gender seem to be protected. We are a minority in what we do - i.e. a group of women doing things in a very male environment, so I'm wondering if that would help us protect it as I note that might give sway to why we should be protected.

Can anyone help me in pointing me to any sources or info that support a sex based decision, not gender/self identifying. I am wondering if I can use the example of sports (e.g. recently fencing) that are slowly standing up to be sex based, but realise it's a bit of a leap (no pun intended) from that to what we do!

Thank you - I'm feeling a bit panicked and annoyed by it all, so apologies for rushed sentences!

Sex Matters and Naomi Cunningham's blog Legal Feminist are the places to look.

IANAL, but there is a section in the Equality Act which says that sex discrimination is lawful for Positive Action initiatives - initiatives to help or highlight groups who share a protected characteristic (Sex, in this case) and are underrepresented or disadvantaged in a particular area of work, or sport or some other endeavour.
So if you are asking whether you can remain women-only, you absolutely can.

What is a bit up in the air (until the FWS case is heard in the Supreme Court) is whether you have to include males with a GRC - and only those males - because their legal sex is F and women's Article 8 rights to privacy, dignity and safety are probably not in play, going by from what you say the charity's aim is.

Sex is a protected characteristic, gender is not - Gender Reassignment is the characteristic.

The above, I'm 99% sure is correct. But - again, IANAL - if you wanted to include males with a GRC, I think you would be able to ask to see a GRC, because you are not an arm of the state. I also think you could argue that a man could get a GRC tomorrow and acquire a legal sex of F - but that all the years of male privilege in the work sector would not have magically disappeared, so you wouldn't be helping someone who had been disadvantaged or underrepresented and wouldn't be fulfilling the charity's objectives.

I cannot stress enough that I am not a lawyer.

Also EHRC guidance - self-ID is not the law.

https://www.legislation.gov.uk/ukpga/2010/15/section/193

This may help (see point 7) and:

https://www.legislation.gov.uk/ukpga/2010/15/schedule/16/crossheading/single-characteristic-associations

Nia (charity for women) have a policy about women only services. Maybe they could help.

Also perhaps FiLiA could advise?

I know lots of women's groups want a policy allowing them to be single sex.

Brighton Sister Salon have dine this snd share wording re the process on their website

brightonsisters.wordpress.com/about/constitution/

https://www.equalityhumanrights.com/equality/equality-act-2010/your-rights-under-equality-act-2010/sex-discrimination

'Circumstances when being treated differently due to sex is lawful

The Equality Act has some exceptions that allow employers or organisations to discriminate because of your sex.

A difference in treatment may be lawful if:

Being a particular sex is essential for a job: this is called an occupational requirement. This includes some jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are provided. For example, a gym could employ a changing room attendant that is the same sex as the users of that room.

An organisation is taking positive action. Positive action might be used to encourage or develop people of a sex that is under-represented or disadvantaged in a role or activity. For example, an engineering firm places a job advert for a trainee engineer stating that applications from women are welcome. '
...
'There are several situations in which an organisation can lawfully provide single sex services. In all circumstances they must be able to justify it. '

IANAL but I know you can’t ask to see a GRC.

As pp have mentioned the FWS judgements have established the importance of legal sex. Legal sex is based on birth certificates which can only be changed with a GRC. Passports and other ID can be changed without a GRC.

Ideally you specify Sex as recorded at birth and ask for birth certificates from everyone as evidence. As a minimum this would only allow males with a GRC, of which there are relatively few. It would automatically exclude most TW..

You also need to think about Transmen and whether you want to include or exclude them. This is where it gets complicated as if they have a GRC their birth certificate will say Male.

If you are basing your rules on biological sex then a TM with a GRC would not be eligible to join.

Consistent treatment of TW and TM I.e. legal sex or biological sex will be important to prevent claims of discrimination on the basis of gender reassignment.

I would consider researching existing organisations who are single sex or who have single sex provisions to see how they approach it. The Naomi Cunningham suggestion is a good one to follow.

Good luck with this OP. Just a suggestion - once you've established the legal situation for yourselves, as far as is possible keep quiet about it. NOT because it's shameful but because the idea of infiltrating / trashing a women only organisation is like catnip to a certain type of man and you'll find yourself tied up in battles with men supremely disinterested in your aims and values but over invested in wedging themselves anywhere they're unwelcome.

Sorry to sound cynical but experience suggests this is what will happen.

IANAL but I know you can’t ask to see a GRC.

The birth certificate effectively does the same thing, but I'm not convinced that no-one under any circumstances can ask to see a GRC. I think you can as long as you are not discriminating unfairly. I suspect that this is another situation in which people have been told there is an impossibly high bar to clear.

Anyhoo, OP, of course Harassedevictee is correct - birth certificates are the proof you could request uncontroversially.

Edited for clarity

As PP have mentioned, the opportunities for excluding someone with a GRC from a single-sex group are more limited than for excluding merely self-identifying individuals, and your situation may not justify it.

A pragmatic approach might be to lean into the ambiguity and specify 'women-only' whilst reserving the right to ask for sight of a birth certificate.

Transmen with GRCs still have access to their original birth certificate (the original birth registration is not invalidated by the GRC but coexists with the entry on the GRR). But I suspect they wouldn't want to apply, and wouldn't kick off about being excluded as 'not women'.

A transwoman with a GRC would be able to provide a female birth certificate (so no need to ask about the GRC itself), but such individuals are rare compared with those merely self-identifying, so the magnitude of the problem is slashed.

It may then still be possible to impose special arrangements in intimate situations where safety and decency are at risk, but I would not write any of that into the rules, because it could attract complaints about 'bullying' or 'discrimination'.

In other words, kick the can down the road unless and until you have a specific situation to assess and deal with.

Sorry - no particular help but just want to say Don't Apologise - I (and I'm sure many others here) understand your concerns. I seem to be in a minority (20 yr old who sees a distinct difference tween Vs and Ps) and I'm encountering similar problems.

What is a bit up in the air (until the FWS case is heard in the Supreme Court) is whether you have to include males with a GRC - and only those males - because their legal sex is F and women's Article 8 rights to privacy, dignity and safety are probably not in play, going by from what you say the charity's aim is.

Women's Article 8 rights to privacy, dignity and safety are surely relevant in this case:

the activities of our charity mean we are often away in small groups or pairs and staying overnight in various accommodation types/set ups and sharing bathrooms etc.

But you can have a charitable aim to "get women onto fencing"

So your tw with grc can come along to the events and fence.

It is not an aim to "and share rooms at fencing events " so they just get own room (paid for off others are also covered)

Yes, I think Article 8 would apply to policies about sharing rooms etc but probably wouldn't when it came to who the charity can offer to help - assuming the charity offers help to males with a legal sex of F who fit the criteria. Might be that they can come on the residential courses but have to be accommodated separately - solo single room/double room with any other male with a GRC.

I would stick with the actual wording of the act and guidelines from EHRC. These are the existing rules in terms of legality.

And that is can you / the group argue that it is "proportionate" that the group should only be for biological females.

The examples in the Act (wake up RCCs) is in fact given of women seeking support after rape will only want to talk with other women.

So if I have understood, you are a group for women working in a male dominated area of work who are supporting each other to feel more "empowered" or less dominated or ... .

I would have thought this was proportionate, ie that you need to be able to discuss, support each other exclusive of the dominant male workers.

So IMO your biggest hurdle is getting all those involved to agree that this is in fact a fundamental reason to have the group women only and if so would fall under the Single Sex Exemptions.

If you / the group feel this strongly and would be willing to argue this should someone try to challenge it, then go ahead.

Its great that you are registered as a charity, and in fact (if memory serves me well) if you are going to alter your existing aims and objectives already accepted by the Charity Commission, then this is fact will be the first hurdle. ie when you submit your updated aims and objectives to be explicitly.

(Ironically a recent challenge to a women only SU group revealed that associations can make this a rule more easily.)

Sorry if I seem to be rambling, but the first step is know you are all agreed, and agreed enough to go ahead and if challenged be able to explain why being women only is "proportionate"

I think most of the suggestions up thread relate to groups that are service providers which aren't the same.

Your group is a self supporting, mutual supporting women's group, so if you or others can give you examples of that, look at how they have worded it.

As well as the exceptions which apply to every service provider and positive action, there are additional exceptions for:
charities
religion or belief organisations.
Exceptions for charities
If you are a charity you are allowed to restrict your benefits (which include the services you offer) to people with a particular protected characteristic if:
that is included in your charitable instrument, and either
it is objectively justified, or
it is done to prevent or compensate for disadvantage linked to the protected characteristic.
A charitable instrument is the document establishing or governing a charity. The charitable instrument usually sets out the charity’s purposes, how its income can be spent and generally how the charity will operate.

i think it depends on what the objects say in your constitution, but charities can discriminate in the basis of sex. Obviously, whether a male with a GRC is considered a woman is a scenario that is being tested in court.

www.equalityhumanrights.com/guidance/business/guidance-businesses/equality-law-voluntary-and-community/exceptions-charities-and#:~:text=If%20you%20are%20a%20charity,it%20is%20objectively%20justified%2C%20or

Obviously, whether a male with a GRC is considered a woman is a scenario that is being tested in court.

There is already existing guidance in law which is part of the SSE that are specifically about / when men with a GRC can be excluded.

Its in the recent EHRC guidelines and in fact in the act.

The problem we have now is people trying to say the law doesn't say that.

But even Lady Haldane in her ruling acknowledged that where "proportionate" TW can be excluded.

I think what is being tested in court is to get a legal ruling (which would change the EA) that TW should never be included as being female in terms of representation of Boards etc., as it fundamentally undermines women's rights. ie it is to try and achieve via courts what some have argued the EA should be ammended to say that the word sex means biology.

That's why currenlty women have to justify (typical male arrogance) that to be a group / service only for biological females is permissable (worthy of respect).

If "the law doesn't say that" the Supreme Court wouldn't be hearing the FWS case. There must be at least some doubt.

I thought it was to highlight that the law as written is open to different interpretations, and that the decision re Boards being allowed to include TW as though they were women in detrimental to women.

That's why there are concerns the court case should backfire.

If they lose the case then it would make it harder to get the EA reworded to clarify sex, as they would just be able to say but the Supreme Court says the law is okay as it is.

ie if those who wrote the law hadn't always intended for TW to be treated as "legal" women they wouldn't have taken the time to write the SSE.

If they had never intended that TW should be "legal" women then there would be no need to have SSE.

The law as written personifies that women's needs, or in fact actual biological fact, was put second to accommodating the demands of TW.

Women can only have their rights if they can argue they are "proportionate".

ie why wasn't it written that TW had to justify that it was proportionate for them to included as though they were the same as biological females. Because for law makers women had not importance.

Obviously it is mad to have to have this discussion within the limits of the wording of those who wrote the law. Many of whom are really proud that they to all intents and purposes satisfied the demands of TW.

IANAL but I know you can’t ask to see a GRC.

I don't think this is true? But again IANAL.

My understanding is that you cannot share with others whether someone has a GRC or not.

Can anyone clarify?

I was in a similar situation though it was not charity run.

About 30 of us signed a letter saying we would leave immediately if a biological/AMAB was permitted to join, on principle as it was a woman's group.

The organiser allowed the TW to join, we all left and reformed privately.

Someone who has the information in their official capacity can't share it. For instance, the Registrar cannot reveal that the original and replacement birth registration relate to the same person (though I guess a diligent genealogist could work it out). But it is otherwise ordinary information that one can ask for and share in the usual way. OP doesn't need to, though. The existence of a birth certificate with the wrong sex on it is indirect proof.

Fantastsic - hope your private group is going from strength to strength.

Thank you so much to everyone's help and responses. It's been a mad day at work and I need to sit down and read this all many times over the next couple of days to take it all in and decide on my next step. I'm sure I'll be baxk to clarify things - and to update.
Very grateful for the wonderful knowledge here.