Supreme Court - are single gender spaces still allowed?

[DisappearingGirl]

I have a question.

The Supreme Court judgement makes clear that organisations are allowed to provide single sex spaces, services and sports which exclude all those of the opposite biological sex.

However, are they obliged to do this?

Can they still choose to define a space or service as "single gender" (e.g. anyone who identifies as a woman)? Or would this discriminate against males who aren't trans? In which case would they have to choose between "single biological sex" or "everyone"?

In the case of toilets, I think mixed sex (including "single gender") would need to be self contained, but not sure about the rules for other spaces / services / sports.

Basically I'm wondering if organisations can just choose to say, well we've decided trans women can still use our women's spaces/services etc.

I think I’m happy to remain undecided on this one. 🤣

Sorry if this has been answered already

This is quoted in the croft case section 7 of the link added by @AmateurNoun (thanks)

This looks as the word female in the then marraige act and says that humans cant change sex under the law in place at the time.

Section 8 details how the individual needed cosmetic surgery
Section 9 details the steps the individual took including cosmetic surgery.

https://www.bailii.org/uk/cases/UKHL/2003/21.html

This was before the GRA

@AmateurNoun

Fine. Your nitpicking has confirmed what we already knew, that legislation in this area contains logical inconsistencies which have probably only been partly fixed by this ruling on interpretation.

So what should government do to fix it?

And what options do other parties have to try to fix it, that don't mean going the long way round (piecemeal litigation, lobbying)?

Apply for a declaratory ruling that this interpretation of sex etc applies mutatis mutandis to every law and regulation, so workplace toilets, for instance, must be single-sex (although this would conflict with Croft unless single-gender toilets are also provided)?

Apply for a declaratory ruling that mixed-sex provision that is described to users as single-gender does not breach sex-discrimination law, provided that it is side-by-side with any single-sex provision that is required by law (or in order to avoid illegal discrimination against women or religious minorities) and not instead of it?

I am struggling to understand it all. Although the Workplace (Health, Safety and Wellbeing) Regs require single-sex provision in certain situations, "sex" in that context does not necessarily mean biological sex - is that not true? The For Women Scotland case only dealt with the interpretation of sex in the Equality Act. So provision on a gender basis would still comply with Regs?

To the extent that doing so would discriminate in an EA sense between men (and women) on the basis of the gender reassignment characteristic that might well be justifiable as a proportionate means of achieving a legitimate aim.

Yes, and that aim is to spare transwomen's blushes by providing single-gender provision for people of both sexes that subscribe to the belief. But it's going to be tedious to test every set-up in the courts, so government should sort it out.

This is crying out for a cartoon. Five toilet doors:

TERFs

Handmaidens and transwomen

Mixed / apolitical

Men

Buck Angel

IW would still go in the TERFs one though.

I'm pretty certain that any expectation of surgery in connection with transition is now considered a human rights violation. That's changed since Croft (no idea if that change has come via case law or legislation).
So Croft can't apply directly, now. There's no way, today, an employer could get away with allowing a trans woman who has had a penectomy to use women's amenities and disallow a bepenised trans woman, on the basis of post/surgical status alone.
Edit: this was supposed to quote @AmateurNoun . Seeing as the quote didn't work I shall also tag @AnSolas as this responds also to your helpful post.

I think 'Sex' does mean biological sex in those health and safety rulings.
The concept of 'gender identity' is something separate and different...and the terminolgy used is gender, not sex. If regulations say 'single sex', then that is what they mean. Building regulations for schools and other public buildings make stipulations for single sex facilities.

The ruling made clear that when the equalities legislation was drafted the words man and woman were taken to mean based on biological sex.

https://sex-matters.org/posts/updates/what-does-the-for-women-scotland-judgment-mean-in-practice/

What does the For Women Scotland judgment mean in practice?

@theilltemperedqueenofspacetime "legislation in this area contains logical inconsistencies which have probably only been partly fixed by this ruling on interpretation"
I think that's right, though I'd say legislation plus case law create the inconsistencies.
I'm wondering if the step to remove biological sex from the definition of wo/man in Australian legislation wasn't motivated by a desire to iron out the kinks. A culture seeped to the bones in misogyny would also explain it, though.

Definitely....it was always the ultimate goal of Stonewall to remove references to 'Sex' altogether from equalities legislation, to be replaced by 'Gender'.

There were even calls by some for the totality of 'sex' to be broken down into constituent female bodily experiences...so that, for example, menstruation would be a protected characteristic, along with pregnancy and menopause....but that 'Sex' be removed as a protected category altogether ( Caroline Nokes wanted this)

Reading all the bits slowly

On the EA ruling did it include any section where it references UK law and said the word "woman" should be read and understood to mean "female and male people"?

On the Croft as case law.
1 the womens provision in question was a single lockable unit used for changing and the women would have had to que for access anyway if there were 25 women on the work-rota

Sex Discrimination Act 1975 was repealed and replaced by the EA so any legal ruling which was made under it and not currently reflected in the EA is defunct.
https://www.legislation.gov.uk/ukpga/2010/15/schedule/27

By bolding :

The Workplace (Health, Safety and Welfare) Regulations 1992

^https://www.legislation.gov.uk/uksi/1992/3004/regulation/20^

Sanitary conveniences
20.—(1) Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.
(2) Without prejudice to the generality of paragraph (1), sanitary conveniences shall not be suitable unless—
(a)the rooms containing them are adequately ventilated and lit;
(b)they and the rooms containing them are kept in a clean and orderly condition; and
(c)separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.
(3) It shall be sufficient compliance with the requirement in paragraph (1) to provide sufficient sanitary conveniences in a workplace which is not a new workplace, a modification, an extension or a conversion and which, immediately before this regulation came into force in respect of it, was subject to the provisions of the Factories Act 1961, if sanitary conveniences are provided in accordance with the provisions of Part II of Schedule 1.

^https://www.legislation.gov.uk/uksi/1992/3004/schedule/1^

PART II
NUMBER OF SANITARY CONVENIENCES
4. In workplaces where females work, there shall be at least one suitable water closet for use by females only for every 25 females.

5. In workplaces where males work, there shall be at least one suitable water closet for use by males only for every 25 males.

6. In calculating the number of males or females who work in any workplace for the purposes of this Part of this Schedule, any number not itself divisible by 25 without fraction or remainder shall be treated as the next number higher than it which is so divisible.

https://www.legislation.gov.uk/uksi/1992/3004/regulation/21

Washing facilities
21.—(1) Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places.
(2) Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless—
(a)they are provided in the immediate vicinity of every sanitary convenience, whether or not provided elsewhere as well;
(b)they are provided in the vicinity of any changing rooms required by these Regulations, whether or not provided elsewhere as well;
(c)they include a supply of clean hot and cold, or warm, water (which shall be running water so far as is practicable);
(d)they include soap or other suitable means of cleaning;
(e)they include towels or other suitable means of drying;
(f)the rooms containing them are sufficiently ventilated and lit;
(g)they and the rooms containing them are kept in a clean and orderly condition; and
(h)separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities in each such room are intended to be used by only one person at a time.
(3) Paragraph (2)(h) shall not apply to facilities which are provided for washing hands, forearms and face only.

^https://www.legislation.gov.uk/uksi/1992/3004/regulation/24^

Facilities for changing clothing
24.—(1) Suitable and sufficient facilities shall be provided for any person at work in the workplace to change clothing in all cases where—
(a)the person has to wear special clothing for the purpose of work; and
(b)the person can not, for reasons of health or propriety, be expected to change in another room.
(2) Without prejudice to the generality of paragraph (1), the facilities mentioned in that paragraph shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety [F1 and the facilities are easily accessible, of sufficient capacity and provided with seating].

So the question is what is the legal meaning of the word woman in the Regs and would that match the EA

Post the GRA can the State regulate the cosmetic nature of a male applying for a GRC?
imo Nope

So the Judge has to assume that they are looking at a class which has women and Jo the male world class full bearded Rugby Porp and Jane a male who is the living image of Tinkerbell.

Per the ruling on the EA

Sex has 2 class
• woman [ = human female]
• man [ = human male ]

Gender reassignment has 4 class
• woman with (edit🤪) GRC PC of GR [ = human female]
• woman without (edit🤪) GRC PC of GR [ = human female]
• man with (edit🤪) GRC PC of GR [ = human male ]
• man without (edit🤪) GRC PC of GR [ = human male ]

(Edit 🤪 oops .... no GRC needed
https://www.legislation.gov.uk/ukpga/2010/15/section/7

7 Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.
🤪)

If the employer is a male only employer (eg the chippendales/ an Order of RC Monks) and has a male only employee area with banks of male toilets and a single open changing room under the Regs do they have to modify the workplace to create a womans toilet and a womans changing room which allows Jo and Jane seprate rooms from the mens?

The employer is an order of Nuns with 200 women on staff but have 2 toilet and 10 Urinals in the workplace are they in breach of the regs?

@Grammarnut However, the point I was getting at is that women have very different biology from men (our endocrine system is very different, for example) because our bodies are geared to conceiving, carrying, bearing and nursing children and this needs to be taken into account in our employment. Not to take it into account is to discriminate against women as they are.

As I explained previously, any job that isn't safe for women should not be done by men either. So my stance remains that there aren't any jobs that men can do that women can't do.

@nutmeg7 It is very well established that men’s and women’s upper body strengths are very significantly different. It’s one reason for differentiated sports categories, and also why men are able to overpower women physically if they choose to commit assault or rape.

You are thinking of averages. Again, there are lots of men who are weaker than women, and lots of women who are stronger than men. I think it's likely that the average man like me is physically weaker than any woman who regularly goes to the gym, for example.

Just because a comparison between a very weak man and a very strong women could result in the women winning out doesn’t negate this fact when making rules about each sex class.

Why not? If a woman passes the physical strength requirements needed for a specific job, and if she is as strong as a man who is considered capable of doing the job, then why should she be excluded from that job based solely on her sex?

Complying with the law is always a legitimate aim.
As is protecting the privacy, dignity and safety of women.

I arm wrestled with my 17yo son this week. I go to the gym regularly and lift weights. The heaviest thing he lifts is an Xbox controller.

He beat me easily and with barely any effort. I couldn't move his arm at all.

You have completely underestimated the difference between men and women.

You might benefit from reading a book called Invisible Women.

Don't be daft. Men have greater upper body strength. They can lift things more easily than women. I am not saying women cannot be removal people,firepersons etc, but pointing out that men are stronger and also have faster fight or flight responses - this is why the argument about transwomen (men) in women's sports has raged, because men are taking prizes meant for women.

@Grammarnut Don't be daft. Men have greater upper body strength. They can lift things more easily than women.

Women are also capable of lifting and moving things. All people have different capabilities, and no one should be lifting more than they are capable of (as it can cause injury, as we both know).

There is no reason why a woman, in principle, should be excluded from a job that involves lifting things solely on the basis of her sex. If a woman is capable of lifting the weight required for the job, then she can do the job.

Your stance is actually nonsense.

@CheekySnake I arm wrestled with my 17yo son this week. I go to the gym regularly and lift weights. The heaviest thing he lifts is an Xbox controller. He beat me easily and with barely any effort. I couldn't move his arm at all.

That's one example. When I hadn't done any exercise for a long time, I found that I was physically weaker than my female colleagues. For example, they were able to open bottles that I couldn't open.

If a man or a woman doesn't go to the gym or do exercise, they will be weaker. Conversely, any man or woman who goes to the gym will build physical strength.

@Annascaul Your stance is actually nonsense.

No, it's not a nonsense stance.

Your perspectives are outdated. It is wrong to think that men should simply accept danger and ill-health as a fact of the workplace.

If there are jobs that are too dangerous for women, then that same job is too dangerous for men.

Hence why I say that there are no jobs that men can do that women can't do; because men shouldn't be working dangerous jobs to begin with.

Well, neither do I or most other men, but I certainly don't think you should have to!

But generally men have greater upper body strength and can lift heavy weights. Some men can't some women can, but the general trend is that men are stronger than women as far as upper body strength goes. Of course, if a woman can do such a job there is no reason she should not. But protections in law about weights women can lift, what they can lift when pregnant, post-partum etc are there to protect women. And women need these protections.
Also, I was wrong to agree with you about jobs being equally dangerous for men and women because it's not true that if a job is dangerous for a woman it is dangerous for a man. Women's physiology is different, so much so that the way men are taught to lift heavy weights is not safe for women, so a job can be fine for a man but dangerous for a woman if the differences in their bodies is not taken into account.

@Grammarnut But protections in law about weights women can lift, what they can lift when pregnant, post-partum etc are there to protect women. And women need these protections.

Those are HSE guidelines, not laws.

Also, I was wrong to agree with you about jobs being equally dangerous for men and women because it's not true that if a job is dangerous for a woman it is dangerous for a man.

I didn't say "equally" dangerous. I said that jobs that are dangerous for women are also dangerous for men, but I didn't use the word "equally."

I don’t think that’s right. The Supreme Court said that, in the context of the Equality Act, ‘woman’ had to mean ‘biological woman’ because of various uses of the term in that Act and the specific consequences if it didn’t, and that this was sufficiently clear to override the default position under the GRA that a person’s acquired sex under a GRC is their sex for all legal purposes. It’s a separate question whether uses of the term woman in a different Act would override the presumption under the GRA.

Your example is just one example. If mine doesn't count, then neither does yours, right? It's anecdotal evidence.

So we need to look at men and women as a group. Yes, there are a small number of women who are stronger than a small number of men. No-one is denying that. And yes, everyone gets stronger with training. Again, no-one is denying that. We are in agreement there.
But every single study that has ever been done shows that men as a group are physically stronger than women as a group. The fastest human has always been a man, over all distances. The strongest has always been a man. The one who can throw furthest, jump highest, hit hardest: men. Every single time. I'm sure you'll agree that's true.

The problem with the idea that women just need to train to be stronger than men is that it suggests that women could be physically equal to men if they just tried hard enough. Do you think that's a fair or reasonable assessment? Is training alone enough to balance things out and explain the overall differences between men and women? If it is, then why, for example, was someone like Serena Williams not playing (and winning) in men's tennis, where for a long time prize money was significantly more than in the women's?