Hampstead Heath Ladies Pond - considering the SC judgement

[QuetzalTerfLus]

Apparently the CoLC is considering its position

https://www.hamhigh.co.uk/news/25109343.equality-ruling-affect-hampstead-heath-swimming-pond/

Well they are going to have to get used to not getting everything they want all the time anymore.

They have just two legal options.
Three mixed sex ponds or
One men, one women and one mixed.
Pretty sure they will do the latter.

And that is biological sex. No other interpretation.

To play devil's advocate, I think the potential loophole might be that gender is not a pc, so there is no legislation directly limiting the ability to discriminate based on gender.

That might be indirect discrimination, if you argue that women are excluded because of the absence of single sex facilities - but it might be more difficult to make that argument about a swimming area.

@merrymouse
Gender and gender identity are utterly irrelevant.

Sex is binary, male or female.
Services that say 'women' on the door or in the name have to be for females.
If they are not, its discriminatory and illegal.

Yes and only sex is a protected characteristic in the EA.

What, in law, stops somebody from providing a service that is only for people who identify as female? You can have all sorts of strange criteria for club membership.

Discriminating on the basis of a non-covered characteristic that indirectly discriminates against the people of a particular sex (as gender does against the opposite sex as fewer of that sex would be able to access) has previously been ruled unlawful by the courts. For instance you can’t have a pool for long haired people and a pool for short haired people and pretend it doesn’t, effectively, sex segregate. It would only be legitimate if there was something about swimming that made it relevant to provide separate facilities on the basis of gender (or hair length).

@Merrymouse
they have to BE female
not identify as
that is what the Supreme Court explicitly ruled on
because of the Scottish mixed boards bill

Clubs can discriminate WITHIN the protected characteristics
but not across them

No, the basic position is that you can't discriminate against people based on protected characteristics.

The Equality Act sets out certain exceptions to that rule, one of which is that you can provide a space or service exclusively for people who share a protected characteristic and exclude all people who don't share that protected characteristic, if it is a proportionate means of achieving a legitimate aim.

Gender isn't a protected characteristic, so if you create a space or service for people whose "gender identity" is female, you have not applied the exemption correctly and you are just unlawfully discriminating against men.

According to the Sex Matters list, the City of London Corporation (which manages the ponds) is still a Stonewall Diversity Champion, sooo…

But what about if you had a club that was only for say Welders? Bring a welder isn't a protected characteristic, and I would guess most welders are male. But surely it wouldn't be forbidden to have a welders only club or a special union for welders. That's what the "guilds" are.

So why would gender be different? Like for some things I think it's clear you absolutely need single sex spaces as a proportionate means of advertising a legitimate aim, but most swimming pools aren't single sex, so I'm not sure that that argument would be as strong here?

The impression I have is that the men’s pool is a bit of a gay hangout. Hopefully this may mobilise the LGB vote in favour of the men’s and women’s pool “staying” single sex, as the gay men won’t want women spoiling the vibe at their pool!

The judgment's pretty clear. If you've decided to provide facilities grouped by sex, then sex means sex.

If you make exceptions for any man, on any grounds, it's no longer single sex and you can't refuse the other men.

I think Stonewall's going to be something in the history books before much longer judging by the tiny violin thread, and activists won't be able to control women's spaces any more.

No. That would be discrimination against females.

Lots of swimming pools have single sex sessions, because lots of women, for all sorts of reasons, wouldn’t be able to swim if they didn’t provide women-only sessions.

So providing only mixed sessions would indirectly discriminate against those women, as they wouldn’t be able to participate because of their sex.

And yet plenty of swimming pools also don't have single sex sessions and aren't being sued. Certainly my private gym doesn't have any, and nor does the other non-LA gym in town. Is it something to do with whether or not they're local authority run maybe?

To be clear, I would be really pleased if the ponds end up genuinely single sex, as I think a women's only environment would be lovely.

I'm just questioning whether it is truly obligatory under the latest changes?

You aren’t applying the exemption at all.

It’s a mixed sex club for people who identify as women.

However, that would also open up the men’s pond to any woman who claimed a male identity, and historically that has been very unpopular, so perhaps they wouldn’t try that tactic….

But on what legal basis do you think you can exclude men from a mixed sex club?

If you are not (correctly) applying the exemption then you cannot discriminate.

There is no obligation to provide single sex swimming.

However, in the case of the ponds, they are already called men’s, ladies, and mixed. Their choice now in order to comply with the law is to make all three mixed sex and call them mixed sex or to continue with ladies, men’s, and mixed but the ladies and men’s must be single sex. If they don’t they will be taken to court for sex discrimination. If they have two mixed sex and one male single sex, they will be taken to court for indirect sex discrimination. The law is now thankfully crystal clear.

A Men's welders club cannot admit female welders

welding is not a protected characteristic so having a welders club that excluded riveters
is allowed

It could well be linked to the additional Public Sector Equality Duty on local authorities, as private clubs obviously don’t have that obligation.

And I think the community the pool serves makes a difference too in terms of discharging the PSED - council pools in some areas might not need to bother, whereas my public pool has sex-segregated sessions as there’s a high proportion of Muslim and Jewish swimmers who wouldn’t be able to swim otherwise.

I think for Hampstead, it would be difficult for an organisation that’s been running separate women’s, men’s and mixed facilities for years and years (albeit incorrectly in recent years, due to Stonewall’s shoddy advice) to argue that everything should now be mixed and that women-only and men-only spaces are suddenly no longer needed.

The male sex is not excluded. Anyone is welcome in the feminine pond as long as they identify as having a feminine gender today (or at-least for the duration of the session).

Same with the masculine pond.

That is exactly what the mixed pond is for, that's the 3rd space

Gender identity is not a protected characteristic.

No. You let one man in, you’ve got to let them all in 🤷🏻‍♀️

In practice I think the problem with my argument is that the gender identity categories would need to be so open that the pools would effectively be mixed sex (would certainly include Man Friday swimmers in men’s pond ) and that would be unpopular with all service users, not just women.