Were the EHRC captured?

[Dul]

The big get out for Stonewall and all the other organisations that gave the wrong advice over the years is that it was in line with EHRC guidance. But the EHRC guidance didn’t reflect the correct interpretation of the Equality Act and that was obvious (to many of us, not to them I assume). Is this because they were captured by activist staff?

Under Baroness Faulkner they pushed for clarification of the law. Did Baroness Faulkner have to take this line because she couldn’t directly contradict what her own organisation had previously said, even though it was plainly wrong?

My point is that if they ignore public opinion they will pay the price.

However, this is taking the thread off topic. The discussion here is about whether the EHRC was corrupted. The interpretation of the law the EHCR finally put out was not consistent with what the Supreme Court have concluded, which is odd. How did a body created to interpret the law, get it so wrong?

A very good point! (I was commenting on the misinformation, but unfortunately contributing to the derail 🤦‍♀️)

If anyone else could throw any clarity on the situation, I’d be interested to hear it.

Indeed.

Helen Joyce this morning on the EHRC being asked by a Parliamentary committee to provide guidance to protect the poor TW.

@BonfireLady

Well, I'm going to have a go, and I'll start (dons hard hat) by saying that I agree with @IwantToRetire 's analysis.

As first published, the EA included Schedule 3 26-27 (the SSEs - single-sex services that are permitted as a derogation from sex-discrimination law) and 28 (exclusion of transsexuals from such single-sex services, that is permitted as a derogation from GR-discrimination law).

Both need to be proportionate means to a legitimate aim. The example provided for 28 was exclusion of a male transsexual from a survivors' group so as not to put off the women.

The existence of para 28 is evidence that TW (with or without a GRC) were intended to be treated in law as if they were women, because otherwise this paragraph would be unnecessary. This is consistent with Croft v Royal Mail and with FWS v ScotGov at least at first instance, so it's unsurprising that EHRC went along with it.

In the period that followed, they had two options for protecting women's rights: to make the para 28 guidance really stringent (which they did, but everyone ignored it) or to lobby for the biological sex switcheroo which the SC have now delivered.

None of this means the ruling was wrong. They're not expected to hop in a time machine and go back to 2010 to ask every mp and peer what they were really voting for. They had to construe the Act in a way that works, is consistent with case law, has minimal logic fails, and balances different rights fairly. If they went against what was intended, that's because it was badly drafted.

(I have a feeling the SC was also influenced by social developments. TW used to be rare, sort of passing, and surgically altered, but because of changes in therapeutic approach, and human rights law, that's all gone by the board.)

I thought the interim guidance was fine. We just need to stay alert!

As someone who works with legislation a fair bit, I'd add that the GRA is really badly drafted - the way "sex" and "gender" are mixed up without defining either, and the way "for all purposes" is followed by a number of exemptions where the transsexual person with a GRC is explicitly not to be treated as a member of the target sex.

A lot of this filters through into the EA, where the PC of GR casts a wider net than the GRA, by including people undergoing or proposing to undergo gender reassigment. My best guess is that this was drafted with the assumption that the people with the PC of GR would be on pathway, probably including surgery, that would conclude with the issuance of a GRC.

But anyway, yes, we've got this concept of legal sex explained in a not very articulate way by our learned Prime Minister. I assume our legislators mostly didn't see a clash with biological sex, or they thought the numbers were so small it was manageable.

Then, as @theilltemperedqueenofspacetime says, society moves on and we have loads of people asserting a trans identity who don't fit into the gatekept process envisaged by the GRA and EA.

So what do you do?

The law seems pretty muddy, so the EHRC attempts to provide guidance, but most businesses and public bodies are following Stonewall law on the principle that the more you pay for a dodgy antique, the more you'll be inclined to believe it's genuine. And also because the SSEs seem to be much more complicated than they should have been.

When it comes to clarifying the law, which is going to happen eventually, it then becomes more zero-sum. One simple and elegant solution (though terrible in its consequences) would be to adopt Stonewall law and say, where the law says sex it means gender identity, ergo there's no conflict.

OR

There's the line that the SC has taken, which is that the SSEs were written into law for a purpose, they don't make any sense if they're not based on biological sex, ergo (because the same word means the same thing in the same piece of legislation) the trans movement's Humptydumptyism is not a workable method of statutory intepretation and TWANW at least for the purposes of the EA and associated bits of law.

Which still leaves us with the two categories of biological sex and certificated sex, and it's up to Parliament to reconcile those if it wants to. But as things stand certificated sex looks like a zombie status that doesn't confer any right to spaces or services covered by SSEs, which, let's be honest, is what self-ID was all about.

Yes, they were captured right back when the first statutory code was written. I don't know about individual staff there at the time (aside from Trevor Phillips) but the stat code for the single sex exceptions was rewritten to satisfy the TRA orgs of the day. I wrote a post about it here with links to the original docs:

https://www.mumsnet.com/talk/womens_rights/5317515-podcasts-covering-the-sc-judgment?page=1&reply=143640112

Yes and no.

In a way they were captured, but I also think they took a fundamentalist interpretation of section 9(1) of the GRA, without the cognisance of any exceptions.

This was the original from the draft code for services, public functions and associations.

If you go to archive dot org and put this link in you can download all the original draft codes:

http://www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/

This is what the final version looked like.

It's self ID.

Sounds like they had TRAs leaning on them, but no counterbalance from the other direction. Now, women have more organisations to speak for them.

We must remain vigilant!

Yes, Press for Change, Gires and a:gender (civil service tra org) are all listed in the post-consultation report. Stonewall are listed as well but, as has been pointed out, they were still a LGB org in 2010.

Another link for archive dot org:

https://www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

Thanks all, that’s useful information.

@IwantToRetire and @theilltemperedqueenofspacetime nobody needs a hard hat, I don’t think. I think most of us understand it’s a nuanced situation.

As I said , I did not understand what @IwantToRetire was trying to say as, regardless of any previous threads, what @theilltemperedqueenofspacetime has now explained was not something I had come across.

I don’t think there was any doubt there would have been transactivists lobbying at every level, in private. Women would not have lobbied as we had little idea we were being comprehensively undermined at that stage.

It’s an interesting suggestion that the evolution of transactivism might have influenced the SC decision. They may well have (correctly) interpreted the original intention as being created to protect women, while by necessity reinterpreting some of the built-in nuance, which was designed to protect a group of transsexuals that in no way resemble the group demanding access in 2025. It is very obvious women were no longer protected as was intended, at least in part because of the deliberate manipulation that has occurred since it was written.

Thank you so much, @PencilsInSpace . That seems to be the information I had seen before. I don’t think I’d seen the linked podcast though, but it had probably been repeated elsewhere.

Women ... had little idea we were being comprehensively undermined ...

This.

Their decisions on PIP and the winter fuel allowance are about saving money, so the weighing up process is a bit different.
I am hopeful that they won't want to follow a course of action which is unpopular with voters, likely to cause damaging and distracting political arguments in territory where they have often looked foolish in interviews in the past, which doesn't even save them money. I'm not sure there would be much political upside in getting embroiled in more gender trouble. It's true that we have to be vigilant though.

"The example provided for 28 was exclusion of a male transsexual from a survivors' group so as not to put off the women."
Was the example given in text which parliament voted on? For example is it part of the act itself, or was it in notes which accompanied the act before Parliament voted?

It's not in the text of the act but it's in the explanatory notes. Relevant reference here: Equality Act 2010 - Explanatory Notes

Most bills going through Parliament will have the explanatory notes attached to explain to the non-lawyer what the bill is meant to achieve. So it's a pretty strong indication of what Parliament thought it was doing.

Thank-you. I think I was aware of that way back when, when I was filling out the consultation on self id. So I assume the supreme court decided that - given the principle of a word having the same meaning throughout the act - the explanatory notes were not compatible with the wording of the act itself, and the act won out. This really shows how necessary it was to take it all the way to the top.

I can also see how the ehrc would have interpreted the law wrong without necessarily being 'captured', though they might also have been. And I can see why recently the ehrc thought that changing the EA to make sex = biological sex was the way forward.

As others have said upthread the mischief began before parliament voted. They didn't quite do enough mischief to make sex a meaningless pc in a way that was unrecoverable, but they had a good go.