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 reckon there’s a good chance this judgement will squish that idea. It examines carefully in several paragraphs what is actually meant by transitioning in order to qualify for a GRC (which could reasonably be taken to be the legal endpoint if the process) and points out that no physiological changes are required. That court of appeal judgement was based on the assumption that transition is a physical process, but in law and in practice it is not.

Hi. I studied economic and social history and political philosophy. I am aware that what is not safe for women is probably not safe for men either. 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.

They are both saying the same thing.

Not that I support Harriet Harmen but the SSE meant all men, even those with a GRC saying they were a "legal woman" were not allowed in.

I sometimes wonder how it is that so many people, let alone those who are supposed to have a legal background still dont understand this.

The issue wasn't how the SSE were written, but that too many people listened to Stonewall etc., and never bothered to read them.

The big difference now is that not only those services which were protected by the SSE ONLY for biological women, but now shops, workplaces etc., can say they are single sex.

I suspect toilets and changing rooms may have to say that in future. Not Women's or Ladies, but Women's Single Sex Toilets and so on.

Not only to be clear, but because so many people in all walks of life have been Stonewalled.

Quote:

The Equality Act allows for the provision of separate or single sex services in certain circumstances under ‘exceptions’ relating to sex.

To establish a separate or single-sex service, you must show that you meet at least one of a number of statutory conditions (set out in this section of the guide) and that limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim. For example, a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. You must then be able to show that your action is a proportionate way of achieving that aim.

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

(Other parts of this article now redundant, but EHRC aim to rewrite based on this weeks ruling.)

NHS to be pursued if gender policies on single-sex wards don’t change, warns equalities watchdog
https://uk.yahoo.com/news/nhs-pursued-gender-policies-single-103539683.html

Posting for info, bit it also shows that the media needs to go on a retraining course to learn NOT to use the word gender.

🎯

Naomi Cunningham and Harriet Harman are not saying the same thing.

HH is saying that MCW can be excluded from a single sex space designated for women if necessary.

NC corrects her - MCW must be excluded necessarily from any women's SSS. Because they are men and the space cannot be designated SS nor can the provider rely on the SS exception if challenged by other men.

I find it odd, confusing and frustrating that there can be so much attention to detail, such precision, with language in this SC judgement. Then they make reference to a judgement which is all coy and vague about "the process of gender reassignment" which may or may not have "been completed."

Are the Croft judges referring obliquely to penectomy? They seem confident that everyone knows what completed gender reassignment entails.
I also think it's worth noting the employer forbad Croft from using the male toilets from the commencement of Croft's process of gender reassignment. And the judges in the appeal case agreed that this was appropriate. On the face of it this seems to contradict SC judgement but legalese is a foreign country to me!!
(I'm reading the full Croft judgement here https://www.casemine.com/judgement/uk/5b46f1fa2c94e0775e7ef4e3 Frustratingly it won't let me copy text but paragraphs 71. to 77. are what I would copy across if I could).

Never mind Croft. It's only cited in relation to comparators. MCW are men for EA2010 purposes.

I think they are referring to penectomy + vaginoplasty etc. TheCourseOfTheRiverChanged

There's a copyable judgment here if useful:
www.bailii.org/ew/cases/EWCA/Civ/2003/1045.html

Which specific provision of the EA2010 do people think is relevant to work toilets?

As I say above, the SSE that everyone points to in Sched 3 is only relevant to service providers.

@AmateurNoun

The justices cited Croft only in relation to comparators. It's there in black and white.

To address your question, the EA2010 is part of the claimant's case in Peggie Vs NHS Fife. Also in the Darlington nurses case.
A couple of other cases, one of which I think is called Miller, have found that a female claimant in a workplace was discriminated against on the grounds of Sex because adequate toilet facilities were not provided for her. In one case the facilities were not separate and in the other there was a separate fully enclosed cubicle but the lock on the door was faulty. First-tier tribunal decisions.
So the EA2010 must apply to work toilets.

Edited to mention Amateurnoun

I’m perfectly sure that there will be lots of deliberate disinformation! Just as there has always been, from transactivists who have done their best to confuse the issue.

Legally inaccurate ‘guidance’ was issued
by lobby groups posing as experts. Schools and employers were advised to ‘go beyond the law’, ie break the law!

The SC judgement makes it clear none of that is legal.

I'm delighted people can now ask for / get SS spaces and services when there is a genuine need. It's less clear if we need SS craft groups / book clubs etc.

Surely we are entitled to organise single-sex anything we like? Some women may need them, because of previous trauma caused by men. But surely we can also have women-only events/ groups just because they’re safe and fun? (We certainly have a moral right. But I’m hoping we also have the legal right.)

Can men claim they’re being discriminated against by not being allowed to join what is essentially a social event? We don’t have a statutory right to be invited to a party.

I hope I’m right in thinking this.

You'd hope so, I suppose it's the "legitimate aim".
What would be the aim of a single sex craft group, is it just about the craft, or is it doubling up as a support group for women?

The WI & Guides are two of the biggest female groups, both have accepted trans (probably because they were scared 😱 not too).
But can they dial back and say "No we are a single sex spaces to provide a safe space for women /girls for them to be able to discuss ANYTHING that only relates to women/girls, periods starting, ending, sexual pressures, etc"

But again, what specific provision in the EA2010 is relevant? And how has its meaning changed since the SC ruling clarified the definition? As noted, the single sex exception in Schedule 3 for service providers is not relevant.

Miller was a direct sex discrimination case. The men at her work had adequate toilet facilities and she did not because she was a woman. This is not affected by the ruling.

I haven't seen the pleadings in the NHS Fife case but I assume they are going with indirect discrimination because the self-ID changing room policy has a negative effect on women. Again, the clarification of the definition of women does not affect this.

You are right - the ruling confirms freedom of association for women, men lesbians and gay men!

This is governed by the existing rules on 'associations' (clubs etc, and also applies to shortlists, prizes, and the public boards the case was originally about). They are permitted to be single-sex, the specific guidance about whether one can or must include or exclude certain groups on basis of safety, fairness and privacy (eg in sport) does not apply to them, but in any case transwomen must be excluded (because it's got to be single-sex to be covered by the rule that made it 'permitted' iyswim).

It logically follows that the situations governed by the specific guidance must also always be single-sex and never single-gender, but this is not coming through very clearly and is being mis-reported altogether by Harman and Sumption etc who really ought to know better.

I wouldn’t be interested in a single gender identity group, not least because I don’t have a “gender identity”, but surely if people want one they can set one up. It’s more the providers of services needing to make provision for single sex services when appropriate and not misrepresent mixed sex services as single sex.

They clearly aren’t saying the same thing. HH is referring to Schedule 3 para 28 which is an exception specifically dealing with those with the PC of gender reassignment. HH is saying that single sex services can only lawful exclude those with a PC of gender reassignment if it is a proportionate means achieving a legitimate aim. NC is explaining that a single sex service, by definition, cannot include any males or it ceases to be a SSS.

The exceptions that deal with allowing service providers to provide services to men/women etc are at Schedule 3 paras 26/27 but this is not what HH is arguing about.

How does the definition of woman have no bearing? Doesn’t it rule out self ID?

It’s the definition of women in the Equality Act. The confusion is when other laws are added in, like the GRA and the Health and Safety at Work Act, which the judgment was not ruling on.

I think pp is making a flimsy case that men with GRCs can still use women only spaces in the workplace and I’m not convinced by it but I do see that it’s a grey area until specifically addressed in law.

A shame that Upton doesn’t have a GRC.

Do we know if the Darlington Nurses chap has a GRC? I can’t imagine that case will get as far as the court room now but if it does it would useful to hammer the final nail in that coffin.

The ruling covers this. The single sex services from which a man who identifies as trans can be excluded from on a case by case basis are those for men, and vice versa.