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 agree that is what the pp is saying but it's not a grey area because the EA does apply.
As do the 1992 Workplace Regulations which predate the GRA anyway and refer to men and women.

Anything in Croft which conflicts with their lordships' finding is superseded.

I ask again, if you are at work and a post-op transwoman is using the women's toilets what specific EA2010 claim do you bring?

You cannot rely on the single sex service exception for service providers in Schedule 3, because we're not in the context of service provision.

You cannot rely on direct discrimination because men can also have post-op transmen in their loos.

All you can do is argue that it's indirect discrimination on the basis that women are more likely to want/need single sex toilets. But unfortunately it's not likely to work when A) the risk of voyeurism from a post-op transwoman will be seen as being low, B) there will be cubicles so outside of voyeurism under/over the stalls it will be seen as a private space, C) although Croft was decided on the grounds of EU law (because the HRA wasn't in force when the issues occurred) it's heavily implied that the post-op transwoman will have rights under the HRA to use the women's toilet. There will be women who won't want to be in an enclosed room with someone who is biologically male but I am really not sure that will be enough.

I welcome any alternative analysis but I think we remain screwed on this front 🤷‍♀️

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.

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.

It does women no favours to pretend that physical differences are not real. It is important to remember that lesser physical strength does not mean less intelligent, less valuable, or less important as a human being.

But don’t pretend the difference in upper body strength between men and women is a pretence invented to keep women down.

Croft was after the 1992 Workplace Regs. Croft was legally male and yet post-op would have a right to use the women's loos regardless.

I agree that if there is anything in Croft which conflicts it will be superseded, but nobody can actually point to anything specific in Croft which is actually in conflict. If you think you can, be my guest.

That’s a really interesting part of the judgment. I wonder if anyone argued for this? I’m not aware that they did.

There are so many gotchas doing the rounds with photos of bearded women captioned with “coming to a ladies changing room near you”.

Clever of the SC to preempt this difficultly and save service providers from a whole new era of ambiguity and being litigated against by activists.

Although that’s not what HH was talking about in her post. She was arguing that service providers needed to apply the proportionality test to keep TW out of SSS which is incorrect.

Typing on my phone with one finger on a train so I will be succinct.

Self ID is unlawful.
Croft is superseded.

Male people with the PC of GR, even with a GRC remain male for EA purposes.

The EA applies to workplace toilets - which is the point you disputed.

Single sex spaces must exclude all persons of the opposite sex.
Therefore a male, with or without a GRC, at whatever stage of transition or none, cannot use single sex toilets and changing rooms designated for the use of women at his workplace.

The End.

The EHRC intervened on behalf of the Scottish Government. They got the law wrong. In her post HH is referring to Schedule 3 para 28 which refers specifically to the PC of gender reassignment. We now know that the EHRC guidance which you have linked to above is incorrect. This is what the EHRC guidance said and what HH appears to still be saying about SSS. We now know that this is incorrect.

"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."

"Gender reassignment provisions in the Equality Act (Schedule 3, paragraph 28 of the Equality Act 2010) If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions. Under these provisions, your approach must be a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users."

I wonder when the EHRC will take that page down.
It's clearly incorrect now you'd think they'd take it down PDQ.

Amen 🙏

Single-sex things which exist (irrespective of their legislative or other origin) as a permitted derogation from the general rule against sex-discrimination (and this surely means all of them!) must be single-sex in order to continue to enjoy the derogation.

Croft's finding, that human rights law requires transwomen of a sufficient degree of seriousness to be allowed to use the women's toilet at work, is in conflict with that. If he is allowed in, then so are all the other men, for what legitimate aim could justify their exclusion that does not also apply to him?

There must be ways to fix this, that protect both the dignity of transwomen and the need for at least some single-sex provision.

Single sex spaces must exclude all persons of the opposite sex.

Yes, if they are a service provider providing a single sex service pursuant to the exceptions in Sched 3. These are not relevant in a work context.

Male people with the PC of GR, even with a GRC remain male for EA purposes.

I agree, but that's not relevant to this particular issue.

The EA applies to workplace toilets - which is the point you disputed.

There is no single sex provision that applies to work toilets. Yes, you can obviously sue for direct sex discrimination if your employer if your employer only provides toilets for men and none for women (as in Miller) but that's a completely different kettle of fish as the sexes are being treated differently.

I wish it was as superficial as you believe it is, but it's really not. Again, for the love of god, can anyone who disagrees with my take tell me what specific claim you would bring if you were unhappy with a post-op transwoman at work?

Sexual harassment.

Why would it matter whether he was “post op”, exactly? Where is it said that would be necessary? You seem to be relying on your personal what I reckon based on a throwaway “of course you’ll be able to use the ladies loo someday when you’ve had your “sex change” remark.

I ask again, if you are at work and a post-op transwoman is using the women's toilets what specific EA2010 claim do you bring?

Harassment

26Harassment
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B's dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Interesting analysis from Maya Forstater. And no I’m not implying that she has the last word on it either. https://a-question-of-consent.net/2020/08/16/croft-v-royal-mail-between-a-rock-and-a-hard-place/

I think I'd go for breach of regulations because they haven't provided men's and women's toilets at all. All the toilets are mixed. Croft can say 'I'm only a man for the purposes of the EA, not for any other purpose'. But would that work?

I’ve long thought that women are going to need to bring harassment claims. This is one of Sandie Peggie’s claims against Upton/Fife.

It's based on the Court of Appeal's judgment in Croft. They held that the fact that Croft was still anatomically male and had not completed transition was more relevant than Croft's internal sense of identity, but that they would eventually gain a right to use the women's loos once transition was complete.

This is going to sound snarky but have you read Croft? I think it's a bit ridiculous to dismiss someone's interpretation of a judgment as "flimsy" if you haven't read that judgment.

There's just no way that judges are going to say that a post-op transwomen using the ladies loos at work is harassment unfortunately.

They'll say that the transwoman was just using the toilet and they have a right to do that.

They'll say that, even if you find their presence distressing, this is not reasonable (this is part of the test for harassment under s26(4)(c)).

Let's not forget that the Courts have also held that transwomen can be put in women's prisons despite this leading to a greater risk of sexual assault*, and that passing post-op transwomen can carry out intimate searches. They will take the FWS into account where relevant but it's naive to think that they are going to suddenly backtrack on absolutely every position they have taken.

*This may change following the FWS judgment but I am just trying to demonstrate that the Courts rarely balance rights in the way that we would like them to.

I disagree that it’s the supreme arbiter of whether a man can use a ladies loo. It was a remark made in a case in a time before the GRA. Many men with GRCs expected to be treated as women in the Equality Act from 2010 onwards. This ruling says they are not to be.

You're getting frustrated because some women here don’t accept your personal interpretation as the be all and end all. We’re going to have to agree to differ on how relevant the remark was in Croft v Royal Mail to men with GRCs now.

Just to be clear, where the Supreme Court and the court of appeal conflict, the Supreme Court always wins.

Also the provision of toilets are a service to employees and one legitimate aim of providing single sex toilets is to fulfill regulatory requirements. Work toilets are covered by the Equality Act.

They'll say that the transwoman was just using the toilet and they have a right to do that.

The Supreme Court ruling is quite clear that they do not.

Ereshkigalangcleg can I ask again have you actually read the judgment?

Can you quote the relevant paragraph please if it so clear?

Like I said, it’s all very flimsy, rather than the certainty this poster states it with, and will probably need to be ironed out in further cases. I also disagree that a man, regardless of anatomy, using a women’s private space where she is undressing isn’t grounds for a harassment claim.