Interim guidance from EHRC is out

[impossibletoday]

https://x.com/HeadWarriorTWM/status/1915853104421167211?t=qbUrcHVdtPyqVB1uZ5depA&s=19

I think they had no choice but to release some interim guidance because so many organisations have come out and said “well we’re not going to comply with the law until the EHRC release their guidance”.

I can’t wait for the influx of Insta videos of people crying in cars at the absolute unfairness of it all…

Welcome news indeed. Good, especially, for girls in school who should now get single sex toilets.

The fact the guidance is so succinct just goes to show how clear-cut the law is now.

It’s unbelievably simple, which is exactly how the EA 2010 was intended to be.

It is often referred to as the single sex exemption but it is more accurately an exemption for providing spaces or services for people sharing a protected characteristic. So anything that is "women only" now has to be women only, but you could use the same exemption to have "trans women only" or "trans people only" or "lesbian only".

Important snips

@MixTapeMel and @Soontobe60 I think it is unclear, because if you take "sexual orientation" in the broad sense of "anyone with a sexual orientation" then any space, service or association on that basis would be for gay, bisexual and straight people, which seems completely pointless. But then if you take it in the narrow sense, by subcategory, gay and bisexual people are listed in separate subcategories in the legislation.

In reality I don't think anyone is likely to split hairs about it, but I think the guidance is raising questions that don't necessarily need to be asked at this point in time.

Isn’t it glorious?

Also, associations 'can' restrict to groups with 2 PCs in common, but they don't have to, do they?

I'm quite shocked that changing rooms can be mixed sex upto 11. I hope this doesn't happen in practise.

What about a women’s network at work? Does that count as an association?

The B share the PC of Sexual Orientation with the L and G.

ETA: Cross posted. Should have RTFT first.

What’s the issue with that, though?
No non trans people will be itching to get in to trans only associations (I suspect the trans take up will be minimal also, but that’s by the by).
Women can have their own spaces, that’ll do me.

I suppose the way round it is to make LGBTQ+ associations open to anyone, assuming that people not in those categories will have no interest in joining.

No issue with that at all.

I think if they provide staff toilets separately to the ones used by the public, this may not be the case.
So separate facilities in private areas used by staff, but still permissible to have mixed facilities in the public areas.

Great stuff. I think the speed of this has a lot to do with Kishwer Falkner's contract ending in Nov. She must want to finish the job.

Sir Keir Starmer is refusing to commit to reappointing the head of the equalities watchdog who championed legal protections for ­biological women in same-sex spaces such as lavatories and NHS wards.

www.thetimes.com/article/46fa3712-2afc-42d1-a960-07aa45a77f05?shareToken=f386ca5249d48ef952b52c858e36a703

I read it as meaning that you can limit it to people with multiple protected characteristics (e.g. lesbian and bisexual women is fine too), and that the only reason they have included this is because several of the interveners were lesbian groups who’ve encountered this exact issue (as discussed in detail in the judgment).

This guidance can’t be more prohibitive than the law it’s about, and since the EA doesn’t prohibit organising a group by reference to multiple PCs, it wouldn’t make sense for this guidance to mean that two PCs is the limit. They’re just trying to make it absolutely clear that single-sex LGB groups are allowed and aren’t transphobic, as councils, venues, etc will be looking to the EHRC to confirm this.

Also, it says a group can be limited to two PCs, not that it must be.

I know there’s at least one planning application for a lesbian-only space being considered by a council at the moment (which the council have previously refused, I believe, as they said it needed to be a general mixed sex LGBT space to be lawful), so this will give councils the confidence that this would be perfectly lawful.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

Permissible but as the guidance says it could still be indirect sex discrimination

That would make sense.

So if you want to exclude transmen from a women's refuge, so as not to traumatise women who may read them as men, you should offer extra separate provision.

Means third spaces being created, or use services according to sex.

Everyone is provided for.

Good guidance. It covers a lot of the stuff we have been discussing on here.

I look forward to the full version.

I get the distinct feeling that the author(s) of that guidance were experiencing sheer relief to be able to write that in good blunt language 😂

Look forward to the consultation, I'll share that far and wide when it starts!

Toilets - in the interim the most pragmatic option is disabled toilets which are often unisex (sorry - I know this is not right but pragmatic). If say, a building has 5 blocks of female toilets and 5 blocks of male toilets making one female block and one male block unisex.

Associations, with respect I think you have misunderstood slightly what it is saying is it is lawful to restrict lesbian groups to same sex attracted women.

LGB associations would limit on one pc, same sex attracted. Plus associations do not have to limit who can join, for example flower arranging associations allow anyone who enjoys flower arranging. LGBT can therefore be open to anyone including allies,

No, I mean, I get that you can have a group limited to people who share two protected characteristics and that this is given as an example, rather than an exhaustive list of what you can do.

But my understanding is that the membership criteria need to be based on people sharing the same protected characteristics, whether that means "women" or "lesbians" or "disabled women" or "Black people" or "Black lesbians" etc. On a narrow reading of the legislation an LGB association would fall foul of this because you are not grouping together people who share the same protected characteristic. You are grouping people who share one sexual orientation (gay men and lesbians, who are same sex attracted) with people who share a different sexual orientation (bisexuals, who are attracted to both sexes).

I know this sounds like a really nit picky issue, but I'm concerned about it for two reasons.

Firstly, it could be used by vengeful trans activists as another attack on the LGB Alliance. They could say that their LGBTQ+ AND ALLIES associations are not discriminatory because they are technically open to everyone, whereas an LGB association is clearly discriminatory because it excludes anyone who does not have one of two protected characteristics, but because it is not for people who share the same protected characteristic it is not compliant with the Equality Act and so the discrimination is unlawful.

I am hoping that no LGBT+ groups will be stupid enough to attack the LGB Alliance again, after what happened last time.

But I am afraid that if they did, they could win on a technicality, or alternatively the court would have to find a legal justification for an association consisting of people who have either one of two different protected categories. And if they do that, then it opens up the possibilities for creating other associations or spaces for people who have one of two different protected categories....such as women plus trans women, for example.

You see where I'm going with this?

In reality I don't actually have a problem with associations for women plus trans women existing, as long as that doesn't become the default loophole to make everything for women plus trans women (and nothing for just women).

But perhaps I'm overthinking this.

Really clear and unequivocal guidance - sanity has been restored.

It will be interesting to see what schools, NHS and Civil Service do.