EHRC on Woman’s Hour 21/5/25

[SabrinaThwaite]

Kishwer Falkner from the EHRC will be interviewed about the SC judgment today.

Is the reverse legal? Could men who claim to be lesbians start a group which excludes all other men, but welcomes women?

I’m not sure about this either and to me it seems the greyest of the various areas.

I’m not sure they’d be able to do it on the basis of being lesbians though, because they aren’t.

Perhaps there can be an exclusive association based on the protected characteristic of believing in genderism.

Yes, I can imagine that could be possible but IANAL.

It's not that simple. You could have a perfectly clear description of an illegally discriminatory group.

The default position is that groups, services, association etc are open to anyone.

If there is a legitimate aim (and for associations this is quite a low bar - 'because we want to' is sufficient in most cases) you can have a 'limited membership' group.

But there are rules on the ways in which you can apply a limit. You cannot exclude by protected characteristics - the old 'no blacks, no Irish' tenancy rules are totally illegal. But you can include only certain PCs - so you can have 'only women'. (There are some extra rules for race, so 'white only' isn't allowed).

You can have multiple inclusion criteria, but if you do so the members of the included group must all meet all criteria. A group for disabled lesbians can onky admit people who are women and same sex attracted and disabled; it can't allow disabled men, same-sex attracted women without a disability, same-sex attracted men etc.

So a lesbian group (PCs: female, same sex attraction) is fine. A group for transwomen attracted to women (PCs: male, gender reassignment, opposite sex attraction) would also be fine. But you couldn't have an association that included both groups because they have different protected characteristics, and you'd be illegally discriminating against the excluded groups.

What I think you could do, if you really wanted, is have a lesbian association and a 'sister' association for TW attracted to women (and possibly also one for TW attracted to TW). The associations could then hold some joint events. Like Scouts and Guides (if both were still single sex) having a joint jamboree.

No, because the SC were clear that sex=biology, woman = woman, lesbian= same-sex attracted woman. Men can't be women or lesbians.

Baroness Falkner was very clear that Duty Bearers are the ones who must comply with the law as written.

Basically, that is who are liable to be sued if they get it wrong. So any Duty Bearers going “oh it’s so complicated let’s wait for the guidance” are running a huge risk.

I’ve said it on other threads Sandie Peggie and the Darlington Nurses will be important to send a message to the NHS and other employers.

I'm at work & can't listen.

Did Nuala go on and on about the poor menz in this interview?

I'm gearing up for a big complaint of bias & inaccurate reporting and NO RESEARCH (ignorance indeed) in Woman's Hour's treatment of this issue.

I don't think they could create a group open to lesbians plus all men, because that discriminates against women who aren't lesbians. The short answer does indeed seem to be "no". (As Naomi Cunningham said at the the LSE!)

My guess is that you could create a group that's open to everyone but mostly it's transwomen and women who want to hang out with transwomen want to go. Like a group that hosts LGBTetc "bring your own frock" events, all welcome!

There was some discussion in the SC case, IIRR, of something like, could there be an association for women who were same sex attracted AND shared the protected belief of being gender critical. I think the answer was basically yes, but that if the SC case had gone the other way the problem was that you still couldn't have excluded men with a GRC who claimed to be attracted to women and said that they were GC - regardless of how nonsensical their presence in such an association might appear. (I think part of that may be my extrapolation, but there was, I'm pretty sure, some discussion about whether you could get round the problems by appending "and GC beliefs" to some of the other PCs.)

Surely the answer is yes. They can include anyone they want in their group as long as they make it clear that’s what they are doing.
If they explicitly say it is for lesbians but then allow men to join they could be challenged in court.

I haven't listened to the programme and know that had I been listening I would have got aggravated by a bad phone line. And think that they shouldn't use one if it isn't reliable or do, which sometimes they do, of dialing up the person on an old fashioned land line.

(Sorry - it really irritates me)

But I am not saying this is the reason, but am very aware that since the Court ruling, and the issuing of the Interim Guidelines, Kishwer Falkner has come under a sustained attack by the usual suspects. And an inference that her own staff are being quite hostile.

So as PP have said I am sure she was being this is now the law, these are the consequences. In fact it wouldn't be her place to say the judgement was good or bad for anyone group or another. It is to look at the judgement and see how it impacts on various laws.

But wonder if she is now back in a hostile work place, which if it is now (again) must be complete shit given the torture she was put through before.

I dread to think who Labour will engineer to take over her job.

No, associations can have rules that include all people with the SAME set of protected characteristics, but they can't mix and match. If they include any men, they have to include all men.

You can have an association based on 2 protected characteristic, ie sex and sexual orientation.

Just as some jobs are advertised under sex and race.

Not sure if there is a later version.

What equality law means for your association, club or society
https://www.equalityhumanrights.com/sites/default/files/what-equality-law-means-for-your-association-club-or-society.docx

Just had time to listen on catch up. I thought the Baroness was very good, speaking from her remit as Chair of the EHRC she focused on the law and how it should be interpreted and implemented. I liked that she told questioners that they should read the judgement and guidance and avoided getting drawn into specifics. I also liked that Nuala clearly found this frustrating, rendering any potential gotchas ineffective.

yes, but it has to be an AND not an OR. You can have an association for female same-sex attracted people, but not for people who are either female or same-sex attracted. Job advertising is different (under certain very restricted circumstances, you can advertise things for underrepresented groups only - I've never understood exactly what the rules are, but it happens for certain academic fellowships, for example).

That EHRC guidance is old (2014) but its p20 still seems pertinent.

Quite honestly I am not sure and hadn't really paid any attention to the detail.

As had really come on the thread to find out about the interview.

Seems these days most threads deviate from the OP and just become general discussions around issues already covered elsewhere or could be their own thread.

My mistake for allowing myself to get side tracked.

Just to add I am really concerned about what will happen to the EHRC one Baroness Falkner leaves.

It has been explained numerous times, in many threads. And by Akua Reindorff. No mix and match of characteristics. Everyone must share all of them.

Yes it was the Scottish government position I think - because if their interpretation won the day lesbians would not be able to exclude tw with a grc from social groups, they could instead have an association for gender critical lesbians. I expect it helped the judges to see that sex must mean biological sex.

I also liked that Nuala clearly found this frustrating, rendering any potential gotchas ineffective.

It's pretty clear to me that Nuala is on the side of TWAW / #bekind / they just want to pee

I've never heard such bad-tempered and under-informed whatabouttmenz? guff on WH before.

I agree with this summary. I didn't even find the occasional brief drop in sound quality a problem. She handled Nuala well

Telegraph has picked up on this interview

Parliament told to obey ‘law of the land’ over trans ban
https://archive.is/bkd45