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.

Well, if that turns out to be the case then it it will have to be put to examination in a court of law. I'm pretty sure there will be many attempts to subvert and get around the ruling.

Provisons for single sex spaces is often predicated, in the first instance, on the equality act. It would be a foolhardy person that decided to waste further time trying to challenge that; plus it would become even more clear than it already is, in the court of public opinion, that the trans lobby cares not one bit about the dignity or integrity of women and girls.

Rather it is more likely to make redundant all previous rulings/cases, given It was the advent of the GRA that created the legal fiction of certificated sex in the first place.

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

Yes, that was my point.

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?

Women are not permitted to compete in men's tennis, just as men are not permitted to compete in women's tennis (disregarding transgender people here as Serena Williams is not transgender of course).

@shuggles
But why isn't there just one mixed category?
Hint because in contact sports it would be dangerous for women to compete against men and in almost all sports they would never win. The few sports where there isn't an advantage in being male e.g. equestrian events there aren't separate events for men and women. Why isn't this the case in athletics, swimming, cycling etc? Because men (as a class) are stronger and faster than women (as a class). If this wasn't the case sometimes the world record for athletic events would be faster/further/higher for men and sometimes it would be faster/further/higher for women but the male record is always the fastest/furthest/highest.
High school boys regularly beat the women's olympic times this isn't because good high school boy trainer harder that the absolute pinnacle of women in sport it's because male and female bodies are physiologically different.

Ok, I accept that.

Can you explain why the fastest sprinter is always male? The fastest middle distance runner? The fastest marathon runner?

Why the world's strongest man is always stronger than the world's strongest woman?

why the human who can jump highest is always a man?

Why the fastest swimmer is always a man?

Why the person who can throw the furthest is always a man?

The person with the fastest serve in tennis is always a man?

Is that because women don't train hard enough?

@CheekySnake It's not because women aren't training hard enough, but most of the male/female gap is due to culture rather than biology. There are many more boys/men who get into sport to begin with, and men's sport receives more funding to begin with, which inevitably leads to better performances and better scores.

China is one of the countries that always dominates the olympic medal tables, but this is not evidence of Chinese genetic superiority over the rest of the world. It's a consequence of culture, huge amounts of funding to support athletes, and having a population of over 1 billion people (which increases the likelihood of finding a very talented athlete).

Please also note that men also dominate sports where there would be absolutely no possibility of having any kind of physical advantage- archery, darts, snooker, chess, and 'e-sports'. This is evidence that biology is not the main factor in men achieving better outcomes in sport.

There are certainly cultural factors at play but there are male physical advantages in in archery (lower heart rate, great draw strength), darts (as above re heart rate, also greater reach), snooker (as above again) but the societal aspects prove that men should never be welcome in women sports because even if reducing testosterone eliminated all physically differences (which it doesn't, heart size, lung capacity, blood volume, bone density, q angle height, reach, foot/hand size and many others don't magically alter on transition) those raised male have the social advantage of sport being a 'bloke' thing.

@GetDressedYouMerryGentlemen There are certainly cultural factors at play but there are male physical advantages in in archery (lower heart rate, great draw strength), darts (as above re heart rate, also greater reach), snooker (as above again)

Chess?
E-sports?

Does having a lower heart rate help men when moving a chess piece, or a mouse...?

Ermm perhaps that why I didn't include chess or e-sports 🤷‍♀️ (although there is possibly some advantage in some eSports to the lower heart rate if they use a dynamic controller).

@GetDressedYouMerryGentlemen Ermm perhaps that why I didn't include chess or e-sports

My point stands then.

although there is possibly some advantage in some eSports to the lower heart rate if they use a dynamic controller

I'm calling Poe's law on this.

So chess and e-sports, both of which I would class as games rather than sports precisely because they lack a physical element. That doesn't prove that "most of the male/female gap is due to culture rather than biology". It proves that there is social/cultural elements that sits as another layer over and above the physical advantages of maleness when it comes to strength speed etc. Why don't trans men out compete women if thinking male is all it takes?

Useful summary of the judgement here. The Supreme Court’s ruling on trans women in detail

https://www.thetimes.com/article/a0378c24-cb2f-4278-912b-202aedc9d78c?shareToken=85ce4ccace52c9176bdf3bd071742c4c

@shuggles@GetDressedYouMerryGentlemen

Chess. Men consistently outperform women. It has been suggested that this is because men are less risk averse than women.

E-sports. See Chess above plus men's shorter response times to stimuli.

The law:

• direct sex (=biological sex) discrimination is not allowed (EA 2010 s 13)
• indirect sex discrimination is that which is NOT a proportionate means of achieving a legitimate aim (s 19)
• "sex discrimination" means either direct or indirect sex discrimination (s 25)
• providers must not sex discriminate (s 29) , i.e. neither directly nor indirectly sex discriminate
• providers may separate services by sex if (Sch 3 para 26), or provide services to only one sex (Sch 3 para 27), which would otherwise contravene s 29, if it is proportionate means of achieving legitimate end, or if person of one sex might object etc to presence of other etc (for 'only one sex provision')

Therefore:

• excluding men (=biological sex) from women's toilets and women from men's toilets is direct sex discrimination but is lawful as it is a proportionate means of a.l.e.
• excluding people who 'identify as male' from women's toilets is not direct discrimination, because not everyone who identifies as male is a man. However, it is clearly indirect discrimination, in that it overwhelmingly would affect men.
• indirect discrimination is only indirect discrimination if it is not a legitimate means of achieving a legitimate end. If this is the case, Schedule 3 (exceptions) is not engaged.
• In general service providers are not required to discriminate. However, under EA s 40A, employers have a duty to take reasonable steps to prevent sexual harassment of employees. Harassment occurs when a person engages in degrading conduct related to a protected characteristic. Allowing men (biological) in women's toilets (etc.) at work is likely to violate 40A. However for a service-provider that promotes itself as trans-inclusive, it might be that they would choose to advertise "trans-inclusive toilets" to their customers, that is "those that are open to people regardless of sex who identify with certain gender identy(ies)". This cannot be justified under Schedule 3, since Schedule 3 is strictly related to separation by biological sex. However, insofar as this is indirect sex discrimination (since it mostly affects males), it could be justified in a similar way. Single-sex facilities are pursuant to the legitimate end of privacy and dignity of service users, whereas single-gender facilities could be promoted on the basis that it allows people to use the toilets that they feel comfortable with.
• Therefore, IMO service providers may choose to offer single-gender facilities, but for employers this not advisable. Employers may need to provide unisex (single user) facilities to cater for those who are biologically female/male but do not feel comfortable using that service. For service providers there is a clear right to discriminate on the basis of biological sex, but there is no duty to do so. In practice, communal changing facilities open to both sexes don't make sense, so the default approach should be "biologically male", "biologically female" and "single-user", however it seems possible to me to offer "single gender" facilities, particularly if single-user facilities are also offered to safeguard the privacy of those who do not feel comfortable in single-gender (mixed-sex) facilities.

@JanesLittleGirl Chess. Men consistently outperform women. It has been suggested that this is because men are less risk averse than women.

Can you elaborate how being less risk averse would lead to better performance in Chess? Is there a citation for this?

E-sports. See Chess above plus men's shorter response times to stimuli.

Regardless of whether or not this is actually true, are you aware that countless men have put forward arguments like this in the past to be sexist against women? How do you reconcile that with your own perspectives?

PlumHam

Interesting analysis

I think offering single gender only would potentially put an organisation at risk of indirect religious and racial discrimination. The failure to provide single sex would have a disproportionate effect on those people who for religious or cultural reasons would not want to share spaces with the opposite sex.

It’s a complex area.