So, what do I think about all this?
Not a lot, personally.
To start with, the first step is that TIM must suffer a disadvantage that is connected with being trans. Frankly, I’m not too sure what that disadvantage might be. The law firm told DH that they have plenty of examples and they will send that to him next week.
I doubt that there will be any real disadvantage but, just for the moment, let’s consider that they do come up with some disadvantage. “Disadvantage” is not defined in the Act. It may, for example, include exclusion, rejection, lack of opportunity, lack of choice, or barriers to accessing services.
The next step is that any action taken by the WI is a “proportionate means of achieving the aim of” overcoming or minimising the disadvantage faced by TIM.
(I am ignoring here the different needs or participation parts as the WI seemed to be focussing just on the disadvantage part).
“Proportionate” is something that is really open to debate, especially when it is the WI (the main purposes of which are “to advance the education of women and girls for the public benefit”) who are seeking to take steps to overcome disadvantage faced by TIM.
In particular, the WI must show that admitting TIM to an organisation set up to advance the education of women and girls is an appropriate way of achieving this.
And also they must show that it is reasonably necessary. That is, in all the circumstances, would it be possible to achieve this aim as effectively by other actions that are less likely to result in less favourable treatment of others (ie women members of the WI who object to TIM being members).
The Supreme Court referred to this in the FWS judgment at para 241
In the case of both sets of provisions, the purpose of addressing the particular needs, disadvantages or participation levels of women as a group with the protected characteristic of sex, is undermined if women as a group includes trans women with a GRC (in other words, biological men who are legally female).
In the balancing exercise that would need to be done for a test of being “proportionate” then the whole purpose of the WI (“the education of women and girls for the public benefit”) is undermined if TIM are included.
There are plenty of ways in which the WI could help with any disadvantage TIMs might suffer without giving them general membership of the WI. Perhaps they might start a separate and distinct TIM section or wing of the WI?
In addition to this, it would appear that trans identifying women (ie transmen) are excluded from WI membership as they do not “live as women”. I would question why it is reasonably necessary to include TIM but not trans identifying women.
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However, I think it’s also necessary to look at the historical context here.
The WI’s EDI policy from 2023 admitted TIM who had a GRC as, at that time, it was generally considered that men with a GRC should be treated as women in this context. Although, the EDI policy didn’t require a GRC, but just self ID as trans.
TIM were not admitted to the WI under some sort of positive action programme, they were admitted under the belief that the Equality Act required that these people be treated as though they were women.
So, to now make the claim that this policy was intended as positive action seems unlikely and I doubt that they will be able to come up with any evidence that back in 2023 that was their thought process.
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Finally, moving on to the specifics of my DH’s case. I think that, even if admitting TIM to the WI was found to be a legitimate positive action, the practical result is that they have still created a mixed sex association which led to direct discrimination on the ground of DH’s sex.
Now, if they had perhaps created a separate TIM wing or section of the WI then I could understand that DH could be refused membership of that section because he isn’t a TIM. However, they didn’t do that. They just admitted TIM to general membership of the WI.
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So, that’s my thoughts on the situation. What do others here think?