Supreme Court judgment and trans men.

[Signalbox]

This is an interesting part of the judgment. Appears to be saying that TM can be lawfully excluded from women's spaces on the basis of use of the gender reassignment exception. Is this a correct reading and does anyone know if this was argued for by FWS or was it just an issue that the SC foresaw causing a whole new round of litigation and decided to nip it in the bud?

"221. There is nothing in the wording of this provision to indicate that paragraph 28 was directed specifically at those holding a GRC, nor is there any basis for concluding that this is its likely context as the Inner House suggested at para 56. (The example given in the explanatory notes at para 740 also does not distinguish between transexual people with a GRC and those without: “A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful”). We can see nothing to support the Inner House’s conclusion that “the importance of this paragraph is that it provides the only basis upon which a person might be permitted to exclude a person with a GRC from services which are provided for their acquired sex”. Nor is the EHRC correct to assert that paragraph 28 is redundant on a biological interpretation of sex. On the contrary, if sex means biological sex, then provided it is proportionate, the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status. Moreover, women living in the male gender could also be excluded under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided. Their exclusion would amount to unlawful gender reassignment discrimination not sex discrimination absent this exception."

No one is gonna read all that and come up with a sensible conclusion.

It does mean that transmen are excluded from males single sex provisions and can also be exluded from single sex female provisions if their "male" appearance could alarm women.

I assume they could only be excluded from females spaces if alternative provision was provided and hopefully it will only be in restricted circumstances, group rape counselling for example.

Is this a correct reading

Given the way the law works, yes, because the Supreme Court says what the correct reading is.

But let's discuss it as mere mortals without that power.

The reason to bring it up is as a counterexample as to why the clause is not redundant - that exclusion of someone who had modified sex characteristics from a single sex space that would otherwise permit them would be real and straightforward discrimination on the basis of gender identity, but the clause could be used to permit it.

I don't recall FWS arguing for this; it's in response due to EHRC arguing that the section was redundant if sex meant bio sex, cos they assumed it would be opposite-sex people being excluded, not same-sex. Their main line was 'look at this inconsistent mess', but it was actually they getting tangled in the confusion between sex discrimination and gender discrimination.

There have been so many false claims of gender reassignment discrimination in recent years (mostly sex discrimination which we've been fighting to demonstrate is permitted) that they, and arguably we, struggle to think of a real gender discrimination case, let alone a permissible one. But the SC are smarter than us. Or at least not so focussed on sex...

The 'what about a scary transman' argument actually helped the SC reach the judgment. They concluded that the EA was also protecting people like JM who objected to transmen in women's spaces. We largely missed that too - as we're quite aware of transmen, so recognise them quite readily as bearded women. The EA goes a bit broader and realises that there may be people who might find it harder to look past the disguise - that opposite gender reassignment could cause a problem akin to actual opposite sex, and hence might need some permissible discrimination measures to balance rights.

https://www.mumsnet.com/talk/womens_rights/5319672-good-piece-on-current-misreading-of-the-sc-ruling

The article linked here by Akua Reindorf has a good discussion of this issue.

Just realised I misunderstood a bit there. The OP's question wasn't whether the SC had read the EA correctly...

The Akua Reindorf article TwoLoons is recommending is outstanding. Short, clear and pretty much every point cleared up.