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.)

It’s not just hereditary peerages that were excluded. Religious organisations were also excluded from “all purposes “. So a women can still be excluded from the priesthood in those churches that still exclude women.

Basically they could only think of one situation in which treating people as their new legal sex for all purposes would disadvantage biological males and benefit biological females so they drafted an exception for that.

Funny how the legislators did realize that people wouldn’t actually change sex, and that harm might come to the legal privileges of one sex, but only thought about men’s rights.

To repeat, the phrase is from Lady Haldane's summing up.

ie one judges assessment, which is being challenged.

But I assumed it is in fact because of the SSE. If it wasn't meant to be that with a GRC you changed sex, then you wouldn't need the SSE.

The existence of the SSE illustrates that they did intend a GRC changed your sex for all purposes.

And even in their trans extremism, they must of thought, oh dear, we better give the luddite ladies something to keep them quiet.

Because this comes up on so many threads, here is the section of the Lady Haldane ruling I was referring to:

So far as the perceived difficulties that would arise in the setting up and administration of single sex spaces are concerned, appropriate protections were provided in paragraph 28 of schedule 3 to the 2010 Act. This provides that a person does not contravene section 29 (which states, read short, that service providers must not discriminate against a person requiring that service) if the conduct in question is a proportionate means of achieving a legitimate aim. (P16)

Thus through the lens of paragraph 28 it was perfectly possible to operate the provisions of the 2010 Act relating to single sex services, although a proportionality assessment might, depending on the circumstances, be required. In summary, the examples proffered by the petitioner did not give rise to the conclusion that “sex” in the 2010 Act could only and always mean biological sex or sex recognised at birth, rather the 2004 Act and the 2010 Act worked in harmony paying respect to the proposition that, as a matter of law, a person who obtains an acquired gender under the 2004 Act has an acquired sex for all purpose and therefore a person’s sex can, as a matter of law, be changed. Appropriate exceptions to that proposition were recognised in the legislation itself. P17)

Note in second paragraph "proportionality" = women cant just say they want to only be with other biological women.

And then also:

a person who obtains an acquired gender under the 2004 Act has an acquired sex for all purpose and therefore a person’s sex can, as a matter of law, be changed.

The single sex exceptions would still be necessary, even without the GRA.

Without the SSE, it wouldn't be possible to provide any single sex services, because that would be discriminatory against the excluded sex.

The SSE exist to legitimise single sex services and spaces.

Single sex exceptions aren't just about trans people. Any women's toilet is using a single sex exception.

And the reason the EA is so favourable to "trans" is because trans rights activists lobbied hard for that.

Exactly

The fact that a law was used to change what was accepted custom and practice, ie men's toilets, changing rooms, women's toilets changing rooms, based on biological sex, was about social engineering.

It had nothing whatsoever to do with discrimination.

The SSE are specifically about the notiont that those who are a "legal sex" have the same rights to the custom and practice of biological sex.

As I say, nothing whatsoever to do with sex "discrimination".

This is because the GRA and the attempted social engineering to get everybody to adopt the "beliefs" of a tiny minority are far more akin to Maoist China, and making us all intone the little red book of trans fantasies.

What is so absurd is that if the natural development of "gender bending" of the 70s and 80s had been allowed to continue, ie doing away with stereotypes in terms of dress, makeup occupation, etc., none of this social manipulation would have been needed.

There would still have been the very tiny number of people who genuinely suffer from gender dysphoria.

But not the mad escalation of an act to create a "legitimate" right to say sex marriage being hijacked by crazed queer activists and their blinkered view of the world, ie if you aren't with us you are against us, and so need to be silenced.

And these fanatics had the ear of the Labour apparatchiks who abused their position to insert this attack on norms.

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Even if there was the notion that just having sex as biology you would need to have exemptions to stop sex discriminaiton it good easily be written to be in terms of employment, etc., with an assumption that anything to do with health care, privacy etc., would as has always been, be based on biological sex.

The SSE are specifically about the notiont that those who are a "legal sex" have the same rights to the custom and practice of biological sex.

No, they're not. The single sex exceptions exist in order to make single sex services and spaces legal. Without them, everything would have to be mixed sex (anything else would be discrimination). Separate men's and women's toilets and changing rooms can only exist because of the single sex exception. It's not just about trans people.

The problem is with the interaction of the single sex exception with the GRA, which allows people to legally change sex. How can something be for women only if some men are legally recognised as women?

I thought the GRA was designed to allow tw to marry when same sex marriage was illegal. Surely we don't need it anymore?

As I say, nothing whatsoever to do with sex "discrimination".

That's nonsense. The EA fundamental's starting point on sex, like the other characteristics, is "no sex discrimination".

Without the exceptions to that base rule, you would not be able to have women's sports, women's prisons, or women's anything, because to exclude men from them requires discrimination on the basis of sex.

Therefore any such "no sex discrimination" law had to carve out enough space for women's sports. (I think in the 2000s our Parliamentarians would have been up to the task of figuring out they were about to outlaw them if it didn't).

Those exceptions were broadly done as "single-sex things are permitted in some circumstances" and then you have the discrimination exception to allow those, hence the "single-sex exceptions".

That base part of the law really isn't complicated. You're going to need to grasp that fundamental logic before getting on to the complicated interactions with the GRA.

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 this is the flaw in the FWS position isn’t it?

I think though, that this whole statement demolishes the Labour position that there is no problem with how the EA interacts with the GRA and that the EA genuinely provides protection for women’s SSS. If FWS lose they cannot continue to pretend that everything is fine as it stands. I hope the judges will be very clear about the problems (which extend far beyond the SSS.)

That might have been the stated reason why it was brought in but it simultaneously conferred several other rights and any attempt to remove those rights will be met with a tantrum of epic proportions. It would be great to see the GRA gone but I think the most we can hope for from this Labour government is that they don’t make things even worse by allowing more men to easily obtain a GRC. Atm I don’t hold out much hope since they appear to be on a mission to piss off as many people in as short a time as possible.

Hopefully by the time they come to GRA reform the SC will have made it clear that the EA gives men the right to trample women’s rights, that the sss are not straightforward to implement, and that TM with a GRC have no protection in law when pregnant.

The SSE are specifically about the notiont that those who are a "legal sex" have the same rights to the custom and practice of biological sex.

They aren't. They are single sex exceptions for all single sex needs. They apply to everyone.

Trans activists lobbied to make sure they reflected the GRA "gender" but there were still some carve outs.

Those exceptions were broadly done as "single-sex things are permitted in some circumstances" and then you have the discrimination exception to allow those, hence the "single-sex exceptions".

That base part of the law really isn't complicated. You're going to need to grasp that fundamental logic before getting on to the complicated interactions with the GRA.

Exactly.

Indeed.

This is an important thread.

www.mumsnet.com/talk/womens_rights/3463920-Lets-go-back-to-2007

That base part of the law really isn't complicated. You're going to need to grasp that fundamental logic before getting on to the complicated interactions with the GRA.

I don’t understand this. If the law isn’t complicated why would it even end up at the SC with two previous courts and the EHRC getting the law wrong? Regardless of the result there is clearly a level of ambiguity as the law stands.

The part which isn't complicated is that the single sex exceptions exist in order to legitimise things like single sex services which would otherwise be deemed discriminatory by the EA.

The OP seems to have misunderstood the purpose of the single sex exceptions.

I don’t understand this. If the law isn’t complicated why would it even end up at the SC with two previous courts and the EHRC getting the law wrong? Regardless of the result there is clearly a level of ambiguity as the law stands.

Necessary is clarifying that the single sex exceptions in the EA aren't just about trans people. The PC of sex was created to replace the older sex discrimination act. As other pp said they are the legal means by which we can have any sex based protections at all.

If that's how it had ended up, and all males were counted as men, ie it only referred to biological sex, it wouldn't be particularly complicated, no. But as OP correctly points out the issue here is that the Gender Recognition Act has created a person who is to be treated as the opposite "gender" in nearly all cases, with its own exceptions. But the EA (and trans activists were disappointed with this at the time) itself maintained some carve outs of its own for "biological" women.

But it’s not just the OP who has “misunderstood”. The EHRC also talks in terms of the SSE in general enabling exclusion of males but then separately in terms of excluding TW as if it requires an additional level of consideration. If the SSE enabled a straightforward exclusion of all males then why not just word it like that? Also when the SSE are invoked why is there an option to exclude TW from that exclusion (as with the GOP)..

There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.

https://www.equalityhumanrights.com/equality/equality-act-2010/separate-and-single-sex-service-providers-guide-equality-act-sex-and

But it’s not just the OP who has “misunderstood”. The EHRC also talks in terms of the SSE in general enabling exclusion of males but then separately in terms of excluding TW as if it requires an additional level of consideration.

The part that the OP seems to have misunderstood is the purpose of the SSE.

@IwantToRetire said:

If it wasn't meant to be that with a GRC you changed sex, then you wouldn't need the SSE.
The existence of the SSE illustrates that they did intend a GRC changed your sex for all purposes.

The existence of the SSE is nothing to do with trans or GRCs. It's to make single sex spaces legal. Without the SSE all spaces and services would have to be mixed sex. And if the GRA was repealed or had never existed, we would still need the SSE.

She is right that the interaction of the GRA with the EA is complicated and that is what this case is about.

Necessary is clarifying that the single sex exceptions in the EA aren't just about trans people. The PC of sex was created to replace the older sex discrimination act. As other pp said they are the legal means by which we can have any sex based protections at all.

I was having an interesting discussion yesterday IRL where we touched on the forthcoming case. Even though the person I was talking to was clearly very clever, it was interesting and not at all surpassing hearing how baffling he found the whole subject of sex versus gender identity. I have spent months on this board asking questions and slowly building up an understanding to feel confident that I've got enough foundational knowledge about all the interrelated issues. I'm still learning more all the time. Most people don't need or want to focus on it in quite the same obsessive way as I do 😁 (unless I understand it, I can't help my autistic daughter - it's quite the motivation).

He was in healthcare so I raised the point that if FWS loses the appeal, the NHS could find itself in the farcical situation where it has to write to all women with a prostate health reminder, just in case they miss any of the "women" whose GRCs mean that there is no distinction whatsoever between women with prostates and women without them (at a data and legal level).

Another point we discussed was that if they lose, there would be no such thing as homosexuality in a legal sense. Homosexuality would become homogenderality (for want of a better word), for anyone with a GRC. By this point in the conversation he was finishing the sentences with me.

If they lose, there is no such thing as sex in the biological sense. Technically, we're already at that point I assume, given this is an appeal. With Labour on the cusp of making GRCs easier to obtain, this case couldn't be more important.

The case really does highlight why GRCs are a problem too. So hopefully we'll get clarification first that sex means biological sex and then it logically becomes the beginning of the end of the GRA... and we drag ourselves back to common sense where birth certificates accurately reflect someone's sex, the NHS can deliver sex-specific care without having to do mental gymnastics to figure out how and single-sex sports, services and spaces are protected.

Edited for clarity.

The existence of the SSE is nothing to do with trans or GRCs. It's to make single sex spaces legal. Without the SSE all spaces and services would have to be mixed sex. And if the GRA was repealed or had never existed, we would still need the SSE.

This is what needs clarification.