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.)

So when the SG argued that GRC’s didn’t confer additional rights and amending the GRA to allow self ID was just an admin exercise they were lying through their teeth.

In a 40-page legal submission to the Supreme Court, they also said that it was unlawful for women-only clubs and associations to exclude biological males with gender recognition certificates (GRCs).

For example, its legal submission stated that it would be unlawful for a lesbian association to bar biological males with GRCs who were sexually attracted to women.

In an article for The Critic Magazine, feminist policy analysts Susan Dalgety and Lucy Hunter Blackburn said that the Supreme Court case was a “legacy of Sturgeon’s time in office”.

They said SNP ministers were now having to argue in court what they tried to avoid admitting during the passage at Holyrood of the self-ID legislation, that having a GRC “grants a man new rights in relation to women-only spaces”.

https://archive.ph/pzCCB

They said SNP ministers were now having to argue in court what they tried to avoid admitting during the passage at Holyrood of the self-ID legislation, that having a GRC “grants a man new rights in relation to women-only spaces”.

Yes, indeed. TRA organisations and adjacent ones needed to maintain the fiction that it was just admin, and through gritted teeth they would occasionally concede that in very narrow circumstances spaces could be limited to biological women only. But plenty of women on FWR always knew that the GRA changes the legal status of a male with regards to women only spaces, that it is a higher bar to exclude a male with a GRC than an MTF without or any other man.

Yup.

Operation let them speak.

I'm hoping they'll campaign openly in public to transfer the nation's favourite rapist, Isla Bryson, to a female prison too. Obviously Labour would no doubt also be delighted to give Isla an immediate GRC with a 2 year cooling off period, as long as Isla can find any doctor to sign it off. After all, we wouldn't want to make it intrusive in any way and apparently there are no reasons to think anyone would game the system.

In fact it would be great to hear from Isla too in the case next week. It's all about hearts and minds. Nothing about us without us. Etc etc.

https://www.dailyrecord.co.uk/news/trans-rapist-isla-bryson-launches-34023503

Please speak louder Isla.

Nicola, would you like to come back and join in too? You made so much sense last time.... 🤦‍♀️

https://x.com/PeterAdamSmith/status/1620051699900755970?t=wCPnlX40avZEC2Sw-AfIXQ&s=19

Hopefully the Supreme Court will also hear Daniel Radcliffe reminding us that..

“Transgender women are women,” wrote Radcliffe. “Any statement to the contrary erases the identity and dignity of transgender people and goes against all advice given by professional health care associations who have far more expertise on this subject matter than either [Rowling] or I.”

...and Emma Watson helpfully showing us how we shouldn't be questioning the many Isla Brysons that pop up regularly in the news (as women... so might easily be missed):

“Trans people are who they say they are and deserve to live their lives without being constantly questioned or told they aren’t who they say they are,” she wrote. “I want my trans followers to know that I and so many other people around the world see you, respect you and love you for who you are.”

Come on Daniel and Emma. Please do join in next week and help us see how the law would be unfair if it stopped all the Islas from being their authentic selves.

But obviously they are welcome to believe they are women and/or pretend that they believe this.

The belief itself is no more a problem than any other belief that some people hold. The problem comes when it's accommodated as if it were fact.

Rant over 😁

(In the interest of fairness to Daniel and Emma, here is the source of these quotes:

https://www.vanityfair.com/hollywood/jk-rowling-takes-shots-at-daniel-radcliffe-and-emma-watson-for-their-commitment-to-trans-rights#:~:text=%E2%80%9CTrans%20people%20are%20who%20they,you%20for%20who%20you%20are.%E2%80%9D )

“I want my trans followers to know..."

I'll bet you do, luv.

Thanks for setting that out.

What I understood to be the single sex exceptions are the first two that you mention (Schedule 3, Paragraphs 26 and 27). These, as has been stated number of times on this thread by me as well as several other posters, have nothing to do with trans people, they exist in order to legitimise separate services for men and women.

The third exception (Schedule 3, paragraph 28) allows discrimination on the basis of gender reassignment. This comes under a heading of Gender Reassignment in the EA and describes how people with this PC should be treated in circumstances in which the single sex exceptions in paras 26 and 27 are applied. I would describe this exception as a gender reassignment exception (rather than a single sex exception) since it comes under this heading.

@IwantToRetire can you clarify which of the EA exceptions you are referring to when you talk about the SSE? It's not clear from your posts. If you refer to the actual paragraphs in the EA as Signalbox has done it could reduce the potential for misunderstandings.

I've just gone back through the thread and noticed that you did mention the paragraphs in the EA that you were referring to.

When it became clear that many of us assumed you were talking about the contents of paragraphs 26 and 27 when you mentioned "the SSE", it might have been more helpful to either quote the paragraph you meant, or in some other way clarify by reference to the EA.

Referring to paragraph 28 as "the SSE" was bound to lead to misunderstandings. Yes, we could all have done what Signalbox did and look up what the EA actually said, but I (and probably others) assumed you meant paras 26 and 27 when you talked about the SSE, as that is what is usually meant by this term. And you did nothing to clarify.

Oh dear, oh dear.
Seems many have failed to read the OP and the point I was making.

Snarky comments like this don't help. Instead of accusing us of not reading your posts, you could have clarified. If most of the posters on a thread are misunderstanding your posts, you should consider that they may lack clarity, not that we're all failing to reading them properly.

I would say Sch 3, para 28 shows the flaws in the Scottish Government/EHRC's argument. The provision of single "sex" services very much depends on that definition of "sex".

The EHRC are arguing there is only one definition of sex throughout the Act, and it's "cerificated sex" ie. whatever is shown on a person's current birth certificate. Therefore, a lawful single sex service must be a single certificated sex service.

Yet they are also arguing that a single sex service can lawfully provide a single "cisgender" service. They're not even arguing for biological sex here, they are saying that a women-only service will always exclude those females who have obtained a GRC, and it may (or may not) exclude males who have obtained a GRC. So, at best, the single sex service they envisage will be for women who do not have a GRC.

The resultant single-service will satisfy neither the "certificated sex" definition or a "biological sex" definition.

Great post.

Yep, the key question at the heart of all of it is "does the word sex mean biological sex"?

If the answer is yes, SSEs can lawfully discriminate on the basis of actual sex e.g. biological women and biological men can each have single sex spaces like changing rooms, gay men and lesbian women can exclude heterosexual members of the opposite sex (who identify as gay members of the same sex) from dating apps etc, hospitals and GPs can know who the men/males are (re prostate care) and who the women/females are (re gynecological care) etc.

If the answer is that sex means biological sex except when there is a GRC which states otherwise, there is no such thing as biological sex in law.

Therefore these clauses which allow SSEs become meaningless. All it takes is for someone to obtain a GRC (which will be easier under Labour's proposals) and biological sex is irrelevant.

So one more time, and as has already been said here and on numerous other threads (and in fact as said by EHRC)
If the GRA had not been intended to create the concept of someone being a "legal sex" as opposed to an actual biological sex, there would be no need to SSE.
It is BECAUSE those drafting the changes to the EA to allow for those with a GRC to be treated as though they were through a certificate the same as those born a sex, that the SSE had to be created.

Apologies if this has already been straightened out. There be a need for SSEs with or without the GRA. Otherwise any reference to single sex spaces or services (such as the examples I've given above) would be unlawful sex discrimination in the eyes the law. The SSE clauses allow them to be lawful discrimination. The waters then get muddied when the EA interacts with the GRA, because apparently a GRC allows someone to become the opposite sex as far as the law is concerned. Although the EA does at least make an attempt to shore this up in some of its SSE clauses.

However, if "sex" in the EA means "whatever it says on the birth certificate" (GRCs already obviously allow a new birth certificate to be issued with the opposite sex on it), the logic eats itself and there is no such thing as biological sex in law.

What a mess.

Two different things.

The ECHR is the European Court of Human Rights - of which the U.K. is a founder member along with some of the original European Union countries.

The submission is from the EHRC - the Equality & Human Rights Commission - a purely U.K. body which was set up to monitor the workings of the Equality Act 2010.

They’re easily confused! Same initials, different order.

But we can’t “leave” the EHRC as it’s… us. (I suppose it could be disbanded if the EA was ever repealed but IMO that would be quite a bad thing, as well as incredibly unlikely).

Part of the problem with the GRA is that its actual wording seems inconsistent, even within itself.

I suspect that’s because it was drafted, not for its own value, but as a blocking mechanism to stave off the demand for same sex marriage, which Tony Blair, I believe, vetoed.

Instead they got a loophole so that a same-sex couple could marry (with the legal & tax advantages that existed at the time) but only if one of them claimed to be the other sex (the Church of England does that for weddings in church, too).

The main power of the GRA, I think, is in what people believe it does!

Yet they are also arguing that a single sex service can lawfully provide a single "cisgender" service. They're not even arguing for biological sex here

Of course they wouldn't, as their entire position depends on not acknowledging biological sex as an important factor. So they use their genderist term to make it fit their worldview.

The waters then get muddied when the EA interacts with the GRA, because apparently a GRC allows someone to become the opposite sex as far as the law is concerned. Although the EA does at least make an attempt to shore this up in some of its SSE clauses.

Yes, and trans rights activists have never been happy about it.

BonfireLady · Yesterday 20:54

“Transgender women are women,” wrote Radcliffe. “Any statement to the contrary erases the identity and dignity of transgender people and goes against all advice given by professional health care associations who have far more expertise on this subject matter than either [Rowling] or I.”

Hmm. I suspect that Danny Boy hasn't heard about WPATH.

@duc748 was referring to the European Court of Human Rights.

There is a legal argument that repealing the GRA would mean we would have to leave the ECHR.

Putting the GRA in its domestic context - by Michael Foran

My suspicion would be that, despite the same political party having written both laws, those with honest intentions writing the EA probably didn’t even consider the possible effects of the GRA when they wrote the sex exceptions. There may have been some transactivists in the wings, rubbing their hands about the fact that they got it through without that fact being noted, but I strongly suspect those writing the law intended the word sex to mean just that. That was, after all, the standard meaning of sex in common usage at the time.

The GRA changes people’s gender after all. It’s in the name and unless you examine it closely, you wouldn’t know about the deliberately confusing conflation of the terms sex and gender. I’m willing to believe enough government officials were slack enough to not realize as the EA was rushed through.

I suspect the EHRC are going on the fact that the HRA was written first, when they assume it was taken into account, but given what we know from the Denton’s document and the capture outlined in the “Let’s go back to 2007” thread, it seems perfectly plausible that this was another bait and switch situation, where laws were created that could be moulded into the shape transactivists wanted, after the event.

I understand the diff between the ECHR and the EHRC, @Sazzasez . The Court is a Council of Europe body. But am I not right in saying that the it's the Court than requires the UK to have gender legislation?

Ah thank you!

From context, as we were talking about an EHRC submission I assumed - with the eagerness of someone who has only recently found out that those are distinct bodies - that this was what was meant.

If anyone is interested here is a link to the Sex Discrimination Act 1975, superseded by the Equality Act 2010.

www.legislation.gov.uk/ukpga/1975/65/enacted

Thinking about the GRA in the context that this was the law at the time, it allows biological males to opt out of being men (in law) for whatever reason suits them best. Except for the bits they want to keep e.g. hereditary peerages, religious roles.

I'd never bothered reading the original Sex Discrimination Act before. It's not about both sexes, it's about men as the default and women as extras that need to be accommodated in modern society somehow, now that many have jobs e.g. the way that midwifery is described as exemptions (so men can legally leave it to women to do) and women don't need to worry about going down mines.

No wonder the GRA made no sense when the new Equality Act came along and tried to make the sexes equal. All that was left of any sense at this point was the right to marriage... and then (as PPs have said), this got sorted under the Same Sex Couples Act). The whole "oh, it's only a few, I'm sure it'll be fine" sex-fudge approach is coming back to bite them somewhat. It turns out women do matter after all... which is clearly rather inconvenient in law. Ha! I did skim through the Let's go back to 2007 thread but hadn't appreciated just how much the wording of the Sex Discrimination Act contributed to it all. Thank you for sharing.

No problem, I'm glad you found it useful in terms of context.

Yup, total mess that needs repealing rather than tinkering with but that is what is going to happen when you legislate for a nonsense idea that “people can become the opposite sex” 🤷‍♀️

If the government created legislation to state that ‘the sky is green’ or ‘the moon is made of cheese’ it would make as much sense in terms of denying reality and requiring people to ignore the evidence of their eyes and material reality.

Indeed.

Or legislation that says Jesus is officially the son of god, or any other belief.

The GRA is a flawed concept. It allows people to have a certificate which forces everyone else to share their personal belief (that they have an inner gendered essence/soul that is more important than their physical body - or a variation of this) as if it was fact.

I still find it baffling that birth certificates - records of actual fact written at a point in time - can be retrospectively changed under this bonkers approach.

Sure, people should be free to believe the sky is green, the earth is flat, Jesus is the son of god, Allah is the one true god, people have inner gendered souls etc etc. The world is a far more interesting place because we all hold different beliefs from each other.

But none of it should ever be ratified in law as legally valid in a way that completely ignores others' lack of belief in it. Certainly not in a secular society like the UK.

This popped up in my news feed today. Credit where it's due, the BBC has written a good article which explains the case well. Despite the relevance to the whole of the UK, it's on the BBC Scotland page rather than the main news page.

https://www.bbc.co.uk/news/articles/ckgv8v5ge37o.amp

A couple of excerpts:

Judges at the Supreme Court are to consider how women are defined in law in a landmark case brought by Scottish campaigners.
It is the culmination of a long-running legal dispute which started with a relatively niche piece of legislation at the Scottish Parliament, but which could have big UK-wide implications.

When the Equality Act talks about “sex”, does it mean biological sex - or legal, "certificated" sex as defined by the GRA?
This case won’t change the letter of the law, but a ruling on how it should be interpreted could have big implications for how all kinds of public bodies and services operate, and whether others might be open to legal challenges.