We believe there are far reaching problems with the practical application of the Equality Act in relation to this definition - EHRC

[IwantToRetire]

“The central issue raised by this appeal is how ‘sex’, ‘man’ and ‘woman’ are defined in the Equality Act 2010.

“On that point, our position is that when Parliament passed the Equality Act, it intended those who have acquired a Gender Recognition Certificate (GRC) to be treated as their certified sex. So a trans woman with a GRC is legally recognised as a woman under the Equality Act, and a trans man with a GRC is legally recognised as a man.

“We look forward to the Supreme Court’s judgment providing an authoritative interpretation of the existing law in this area.”

“We believe there are far reaching problems with the practical application of the Equality Act in relation to this definition.

“It creates significant inconsistencies, which impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people. These difficulties include the challenges faced by those seeking to maintain single sex spaces, and in the rights of same-sex attracted persons to form associations. We think clarity is important to everybody affected by these issues properly understanding and exercising their rights.

“It is unlikely that Parliament appreciated these consequences when it passed the Equality Act, and they have become more serious with societal change since that time.

“As the equality regulator, we deem this to be a wholly unsatisfactory situation, which Parliament should address with urgency.

“In April last year we provided advice on clarifying the definition of ‘sex’, in response to a request from the then Minister for Women and Equalities. It is our view that the arguments at the heart of this case once again highlight the importance of Parliament giving careful consideration to amending the Equality Act 2010 and the current balance of rights under the Act.”

https://www.equalityhumanrights.com/media-centre/news/ehrc-intervention-women-scotland-supreme-court-appeal

(This is in relation to forthcoming FWS court case, but thought as it is a statment from the EHRC, those not on that thread would be interested to read this. But always find it strange that all these people making all these statements never refer to why the SSE were written, ie because they did intend those with a GRC to be taken as being "legally" the other sex.)

They thought it would only affect a tiny number of people. They also thought that anyone serious about being trans would apply for one. Nowadays people don't largely bother as there is little to stop them using opposite sex services as hardly any orgs use the same sex exemptions. So the whole thing is a mess.

They thought it would only affect a tiny number of people.

Heh, I was about to come out with the same sad old refrain! The situation now is so radically different from that envisaged by Parliament at the time (even though the lack of foresight and due diligence was shocking) that clarification is essential.

Well personally I think it is a total insult that they wrote something that discriminated against the actual class meant to be protected as one of the EA characterists for a tiny minority.

The fact that the Labour Government at the time intended that a GRC gave someone the right to be legally the other sex, at the expense of the actual sex class.

You would have thought, well its only going to be a tiny minority with a GRC, so maybe there will be a few occassion when they can be treated as legally being that sex. ie the exemptions should be written to cover those very few instances when a GRC = biology.

Not imply that generally 50% if not more of the country, should only (when proportionate) be taken to be actual women.

Not forgetting that the real issue isn't what is written in any act, but the huge influence that TRAs, have effectively won the social arguement that TWAW.

That genie is out of the bottle, and even if the law is changed, it wont stop Stonewall, the Guardian, the BBC, schools, women's groups saying with or without a GRC they will accept someon claiming to be (through identification) the opposite sex.

I'm sure you know this, but the Equality Act was passed after the Gender Recognition Act, so the drafters of the Equality Act deserve at least as much of the blame for the current mess.

If a GRC changes a person's sex 'for all purposes', why the exemption for hereditary titles and the like.

I mean I know why, because that would have inconvenienced men, but it demonstrates that 'for all purposes' simply isn't true aside from the fact that humans can't actually change sex.

I'm sure you know this, but the Equality Act was passed after the Gender Recognition Act, so the drafters of the Equality Act deserve at least as much of the blame for the current mess

Yes that's what I am saying.

The EA, as it were, confirmed or created the legal "reality" that you could change sex.

The EA could have been written to say that in certain limited circumstances this was true, ie instead of single sex exemptions, they could have written gender recognition exemptions.

But they chose to say the majority were less important than the minority.

So the case agains this is that it is sex discrimination!

But always find it strange that all these people making all these statements never refer to why the SSE were written, ie because they did intend those with a GRC to be taken as being "legally" the other sex.)

YES!!!!! Why would exceptions for single-sex spaces, organisations, services and hereditary titles exist if the legislation intends a GRC to be a complete and total change of the bearer’s sex in all situations?!

The EHRC in particular drive me crazy by ignoring this fact and I can’t understand why they keep making statements that don’t take this into consideration.

“On that point, our position is that when Parliament passed the Equality Act, it intended those who have acquired a Gender Recognition Certificate (GRC) to be treated as their certified sex. So a trans woman with a GRC is legally recognised as a woman under the Equality Act, and a trans man with a GRC is legally recognised as a man.

I haven’t read the EHRC submission. Does it say why they think when Parliament passed EA2010 they intended “woman means a female of any age” to include a male with a GRC, despite not specifying that “woman means a female of any age and a male with a GRC”?

In the vanishingly unlikely future scenario where the UK repealed/substantially modified the GRA (and maybe the EA too?), a prerequisite would be leaving the ECHR, wouldn't it?

I haven’t read the EHRC submission.

As far as I can tell it is the paragraphs I have included in the OP.

ie they say it is clear that when written the intention was that those with a GRC legally became the other sex.

But the add what the problems are, eg single sex spaces, and that therefore it should be clarified.

Which I think put crudely is the basic intent of the JR.

I only skim read this article but I got the impression from it that the reason the GRA was needed has since been dealt with in subsequent legislation on same sex marriage.

https://forwomen.scot/wp-content/uploads/2024/10/Defining-Sex-in-Law-Michael-Foran-27Feb2024.pdf

Yes the problem is it was drafted by the same Blair/Brown government as the GRA

This question about the carve out for hereditary peers is never ever answered.

I only skimmed through it too, @LoobiJee ! 😀And my first thought was, if only our legislators had brought to bear this level of forensic detail!

This is what I was going to say too.

Great minds 😁

Mind you it's not rocket surgery.

And the problem is that should as a result of the court case, or anyone bothering to remember the "Government" still has to deal with 2 petitions about this, it will be a Labour Government making the ammedments.

If only Sunak hadn't called his snap election, maybe, just maybe, KB could have put forward something in the HoC that sorted this all out.

But as I said up thread, even if there is legal "clarification" in terms of society and how it behaves, we have so much ground to re claim.

And not much public support.

But I think we all know that this "kind" proposal was in fact intended as a Trojan Horse.

And that not just the act, but trans activism has made it a much wider issue.

And much more about undermining biological women as a protected characteristic.

So is the what is the EHRC submission in favour of?

Judges interpret the law, they do not solve the practical problems the law creates.

And the submission seems to say 'we don't like it, but we do think the law says transwomen are women' ??

If a GRC changes a person's sex 'for all purposes'

It doesn’t, apart from all the exceptions it also says: 3)Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

I think they are saying that as written the law says that someone with a GRC is legally the other sex.

But they are saying that as written it has "practical" problems:

“We believe there are far reaching problems with the practical application of the Equality Act in relation to this definition.

And also undermines the rights of women and same sex attracted people:

“It creates significant inconsistencies, which impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people. These difficulties include the challenges faced by those seeking to maintain single sex spaces, and in the rights of same-sex attracted persons to form associations. We think clarity is important to everybody affected by these issues properly understanding and exercising their rights.

If at least the court agrees it is badly worded, and its intent needs clarifying, that will be a step forward.

But not sure the Court can come down either side on the meaning of the word sex in relation to what the law intended.

But maybe they can.

Like a strict teacher saying, no you need to re-write and make it clear.

The problem with that, is with Labour being in power, who knows how they would "tidy it up". Although suspect we know how they will want the law to give rights to trans idendified people.

I think, if memory serves me right, that is a quote from Lady Haldane ruling. And its that, isn't it, that this judicial review is about.

But if I am right in quoting her, and others interpret the law as written, isn't that a further indication that it needs to be clarified.

The Gender Recognition Act 2004 implies that people can change sex.

9 General
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

If a man has an 'acquired gender' of female, then it implies that he is now considered to be a woman for all purposes, and also to be female.

Unless there is a hereditary peerage involved, in which case, for the purposes of inheritance only, he is still male, because it's important that men get to have their cake and eat it and women shouldn't be able to inherit peerages. This clause also contradicts the clause above, since it means that the person's 'gender' doesn't in fact become the acquired gender for all purposes.

The easiest way to solve this self-contradictory mess would be to repeal the GRA.

”subject to provision made by this Act or any other enactment or any subordinate legislation.”

i agree the GRA needs repealing.

I still don't think it is for all purposes if you consider the peers, and rape (SOA) parts of the GRA. However, maybe it's what's allowed this.

The idea a woman about to be strip searched - after all that's gone on in policing - will object and be confident (or stupid?) enough to do so, is for the birds:

www.telegraph.co.uk/news/2024/11/22/transgender-police-allowed-strip-search-women-new-guidance/

"A BTP spokesman added: “Who British Transport Police transgender colleagues may search is determined by an interaction between the legal framework of the Police and Criminal Evidence Act (1984), Code of Practice on the Exercise by Constables of Powers of Stop and Search of the Person in Scotland 2017, and the Equality Act (2010), with the correct application of occupational requirement, and not limited to the provisions of the Gender Recognition Act (GRA) (2004).
“Therefore, an officer may only search as the sex indicated on their birth certificate or listed on their gender recognition certificate, whichever is more recent when enacting a statutory power of search under compulsion.
“A person being searched can object to being searched by any officer; this officer will be replaced by another member of the team to conduct the search in their place. This is regularly done in practice for many reasons, such as a way to de-escalate conflict.”"