LGBT Groups and the EHRC Guidance

[gayhistorynerd]

I've been following the SC ruling and subsequent EHRC guidance with a close eye, as this subject is particularly close to my heart as a lesbian. However, there is one thing I've been struggling to reconcile, and I know the brilliant women here are most likely to have the understanding to clarify.

Are LGBT groups now considered unlawful?

I have the feeling I'm more in denial than anything, but I'm hoping against hope that somebody will be able to tell me that these vital community spaces will be preserved. As it stands, I don't see how the guidance for associations will permit them; if everyone in a space must share the same protected characteristic, then a group for gay, bisexual and trans people surely can't be lawful unless it's exclusively for people who are gay and trans? These groups have been life-saving for me, and many others I'm sure, as I sought out community as a young adult and now, years down the line, they're an important part of my social life. I absolutely appreciate the right and need to have gay-only and lesbian-only spaces- I am part of some lesbian-only groups myself- but I didn't expect the right for those groups to exist to come at the expense of the other, broader community spaces that have been a hub for LGBT people for so long.

It casts a bittersweet light over the SC ruling if this is indeed the case, which is a sentiment I never thought I'd have. I want to be as happy as everyone else about it, and I am in 99% of contexts, but I would be lying to say that this one aspect didn't really worry me.

I don't see why they would be unlawful?
Gay only or lesbian only are now clarified as being allowed. An LGBT broader group would be mixed sex which is also allowed, so you can have that too.
Could you clarify why you'd think they wouldn't be lawful?

I think of the SC ruling as the Ronseal slogan - it does what it says on the tin.

If the sign outside says "female changing" then no men, no TW.
If the group is for lesbians, then it's women only - no men, no TW.
If it's a LGBT group for lesbians, gay men, bisexual and trans people - then those people are welcome.

What is stopping is a women's only group, calling itself a women's only group but having men in it. It either changes its name, or stops including men - so it does what it says on the tin.

My concern is that the guidance states that in a group specifying multiple protected characteristics, they have to be shared by all members. This makes a lot of sense when a lesbian group is for people with the protected characteristics of sex and same-sex attraction, so women who aren't same-sex attracted are excluded and same-sex attracted men are excluded as well. What you can't have is a group for, say, women and disabled people, because that would be unlawful discrimination against non-disabled men under the new guidance.

When it comes to LGBT groups, you're likely to have same-sex attracted people who aren't trans and, similarly, trans people who aren't same-sex attracted. It seems like for this to work, the group would then have to allow anyone and everyone to join otherwise it would be considered discriminatory. I have no problem with some LGBT spaces already being open to anyone, such as gay bars which often end up with a significant straight female clientele, but I worry that the more exclusive groups may now have to open up as well.

I apologise if it's hard to get my point across correctly, I find the guidance is difficult to understand and discuss on this subject- it ends up sounding like word salad.

you're very confused here. Group CAN be set up to one characteristic. or even two.

they don't HAVE to be

I don't think anything has changed here. A group that was only open to LGBT people is a mishmash of different protected characteristics on any possible reading of the equality act, either before or after the SC ruling.

I'm not an expert, but as I understand it, one could have two different groups - one LGB group and one T group - that do joint events, which is virtually the same thing, assuming the two groups do in fact want to have joint events.

You make an excellent point, gayhistorynerd ·though possibly unintentionally!

The recent and illogical tacking on of T for Transgender to the existing LGB community and organisations has resulted in a situation where same-sex-attracted groups can no longer exist without people-who-want-to-be-the-opposite-sex tagging along - and taking over. Stonewall is a good example.

Trans and lesbian/gay are two different things, different identities, different issues, different interests, different aims and objectives.

The SC ruling reaffirms that women who are lesbians may meet on their own and are free to exclude men, even men who claim they are lesbians, so it's good news.

If a group or a venue is just for lesbians, it's just for women who are lesbians.
If it is just for gay men, it is just for men who are gay.
If it for lesbians, gays, bisexuals and transgender people - no problem, it's then a mixed sex group/venue, everybody knows it is and everybody's happy.
LGB✂T

The only people excluded from an LGBT group would be heterosexual people without the protected characteristic of gender reassignment, in practice I doubt those people would actually be excluded, more that they would self select out. It’s not quite the same as for example a lesbian group that would actually prevent men from joining.

It will really only come in to play if someone complains about being excluded.

Confirming what's been said already.
The ruling hasn't changed anything to do with unisex lgbt gatherings. It simply clarifies that sex-based rights for women are based on biological sex.
Anyone can still have any kind of group they want - and indeed it has now been made clear that a group stated as being for lesbians doesn't have to welcome males as males can't be lesbians.
As long as a group is clear that it is unisex, that's fine.
(Of course provision of certain services, eg rape crisis services, would struggle to argue that unisex provision only was adequate, and would realistically have to provide single sex services, but as rape is a male crime, that's for clear reasons which wouldn't apply to an ordinary lgbt gathering)

I still don't see why LGBT groups wouldn't be allowed. It's be a group for the L plus the G plus the B plus the T. It's just not allowed to call itself an L only group if its not an L only group.

IANAL but I think the issue would be that an LGBT group of 25 or more members couldn’t rely on using the EA 2010 to justify excluding a heterosexual non trans identifying person from their group.

They could have an LGBT group just like there could be a chess club or cycling group but it could not justify excluding anyone based on shared PCs.

IANAL

Asking the question another way, what is the challenge LGBT groups share that justifies their exclusivity? I think that is hard to answer, but perhaps that points a way forward.

Because while you can't discriminate based on sex or same sex attraction because these are PCs, my understanding is that you can discriminate on things that aren't PCs as long as you aren't accidentally discriminating against a PC by doing so. (Regular Goth Night Out for the office goths for example probably OK, Regular Senior Managment Footy Day might be on risky ground if women felt excluded)

So finding a non-PC common interest or need would presumably be the key. Probably would not exclude non-LGBT people, but the asusmption would be that such people either had no interest in the thing, or had a genuine interest in whch case presumably they'd be welcome.

Off the top of my head, you could have a group for LGBT political activism as long as it didn;t exclude non-LGBT people, LGBT history interest, perhaps gender-nonconforming social and support, Glitter Party Night for people who just love a Pride-style party, Queer Beers for anyone who identifies as queer which isn't really defined as anything legally.... I think the key thing is you have to do it genuinely, you can't just use that as a mask for really excluding people based on their sexuality.

And if the LGBT groups really can't find a single thing their members share around which to regroup, that does rather raise a question doesn't it?

I'd agree with this - LGBTQ+ is a huge diversity of people some of whom will be exploring etc, so who would you be looking to exclude and why?

The point of the SC judgment would be that lesbians can meet as women only, regardless of how men identify, and cannot be called discriminatory or harassed or refused services without this getting legally really, really problematic. <see the slam dunk JKR offered to fund yesterday.>

Another interesting point: the only reason there needed to be clarification of the EA was because male people were forcing their way into women’s groups and lesbian groups and those men were claiming women and lesbians could not legally exclude them.

I suspect you can have any grouping you like, so long as you are not a dominant group using it to exclude a weaker group, without reason and to the detriment of the weaker group.

The only requirement then is that those excluded, who suffer no detriment from that exclusion, are decent human beings who respect the rights of others to meet in their absence

I guess if you have an LGBT group and lots of straight people insist on joining, there wouldn’t be much you could do, but those people with blue hair and spicy straight relationships are already included under Q so chances are, OP that your groups won’t change much at all.

Would it mean you might struggle to exclude regular heterosexuals, say?

Could a male heterosexuals say but you've got male heterosexuals in there in the shape transwomen attracted to women. So you have to let me in too.

So you can have an LGBT group, but you might be accused of discrimination if you don't allow other heterosexuals in there.

@Datun I guess any male heterosexual would have to claim the right to join under the protected characteristic of gender reassignment? And then if members of the group doubted he was trans, it becomes a question of evidence if it goes to court? Tricky when trans is 'cos I say so' but that's a problem for TRAs to work out!
@PriOn1 I suspect you've hit nails on heads there in terms of the reality of the situation.

But isn't the discriminatory aspect about the criteria for exclusion, not inclusion?

You have to treat the heterosexuals the same. You can't treat one heterosexual more favourably, because he says he's the opposite sex.

It's the same argument that says you can't let men into a woman's space, even if one of them says he's the opposite sex.

Yes i agree with others that you couldn’t use the EA exemption as you have mixed sexes and not everyone is either trans or same sex attracted. So you can certainly go ahead and have the group but the only issue is that any heterosexual person could also apply to join and if you said no you would be discriminating against them

Yes I see what you mean @Datun. I'm looking at it from the perspective of a heterosexual non-trans male. He wouldn't have any protected characteristics so the group would be arguing that they are a group of individuals with protected characterstics - albeit different ones! - under the Equality Act.
I may have got myself in a muddle though because the general whataboutery of the last few weeks has put me in such a fury that my brain is refusing to engage in anything more esoteric than 'there are 2 sexes and males can't have female rights' 😂

I agree with your analysis. I don’t think you could legally exclude people (assuming >25 ppl) for not being one of LGBT. Because if including heterosexual T, you are losing the claim to have a legitimate need to exclude heterosexuals. And if including non-trans LGB, you are losing the claim to need to exclude non-trans people.

It is a problem in theory, but I think that is the law. Whether it’s a problem in practice is another matter. Do many non-trans straight people try to join LGBT-only groups? And would they have been excluded anyway if they self-identified as included?

The heterosexual man has the protected characteristics of sex and sexual orientation like everyone else does.

I suspect the instinct for most queer groups is to be as inclusive as possible so I can’t see there is an issue.

I am curious as to if they could exclude lesbian TERFS as I am one but I would choose personally to self-exclude if I had a lovely lesbian only group to attend. This is now possible under the clarification of the EA.

TBH this is the current state of play and I don’t feel that I am missing out any. So worry not, and crack on.

The group could be for LGBT identifying people as well as their “allies”. That way you are allowing anyone with an interest in LGBT matters to join and you would not be relying on excluding anyone based on PCs. If someone joined just to be abusive or disruptive you could get rid of hem the way the chess club could get rid of someone who continually tips the chess board over when they lose.

Yes i agree with others that you couldn’t use the EA exemption as you have mixed sexes and not everyone is either trans or same sex attracted.

Sorry I meant that to say “and not everyone is same sex attracted as you also have trans”
So basically heterosexual people could also apply to join as they would fit a characteristic you have included eg. male or female, same sex attracted or opposite sex attracted

@soupycustard
He wouldn't have any protected characteristics so the group would be arguing that they are a group of individuals with protected characterstics - albeit different ones! - under the Equality Act.

Not correct all sexual orientation are covered.

So the heterosexual non-trans male has a PC of Sexual Orientation 12.1(b) but not Gender Reassignment.

12 Sexual orientation
(1)Sexual orientation means a person's sexual orientation towards—
(a)persons of the same sex, [ L or G ]
(b)persons of the opposite sex, [ S ] or
(c)persons of either sex [ B ]

(2)In relation to the protected characteristic of sexual orientation—
(a)a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation;
(b)a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.

@gayhistorynerd

You couldn't lawfully exclude a heterosexual of either sex or a homo/bisexual who wasn't trans on the basis of the PCs of SO or GR. In practice, crack on - terf lesbians and gay men would probably rather eat their own feet than go to an LGBT gathering.
(Plus I second Flirts' point earlier - what do you have in common?)

To answer that question, perhaps you could say it is a group for people who believe in GII. Assuming (not proven) that GII is a protected belief, you could restrict entry on that basis.