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.

Are LGBT groups now considered unlawful?

Only an extremist would want to shut them down. It could be argued that trans people aren't members of LGBT groups because of their sexual orientation, but they are often included because of a perceived common interest between the groups.

A lesbian group can be for same sex attracted women only.
An LGB group can lawfully exclude trans people.
A trans only group is lawful.

If it does turn out that some arsehole wants to shut LGBT groups down then a possible workaround is to set up separate groups for each characteristic, and have regular meetups.

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.

No, that wouldn't be unlawful discrimination against non disabled men at all, unless by disabled people you mean both men and women, rather than just women.

If you had a single sex group for women then it is just that, a SINGLE sex group for women whether they are able bodied, disabled, black, white etc etc. Being a disabled woman is not a subset of women. What all those women have in common is their sex group.

Men on the other hand are a different sex group whether they are disabled or not so can be refused entry to a womens single sex group.

However, if you had a group for just women and disabled people of either sex (I'm struggling to think why such a group would exist in the real world tbh) then it would automatically be a mixed sex group anyway because disabled people are not a sub class of their own sex.

If this is still confusing try replacing disabled people with black people in your original question:

What you can't have is a group for, say, women and black people, because that would be unlawful discrimination against non-black men under the new guidance.

An LGB group can lawfully exclude trans people

Not if they're LG or B too though surely? As in really LGB in terms of sex, not straight men identifying as lesbians.

In terms of OP's question though, surely the SC clarification wouldn't make any difference. Everyone wouldn't share a pc regardless of the outcome of the case.

I think you can have an LGBT group in the same way you can have a chess club. It's what the group is about, it's not a restriction on membership. You can't ban straight people from attending if they want to discuss LGB or T issues. Is that why groups always have an A for allies in there somewhere?

If you've labelled your group LGBT then you're being very clear it's gender ideology that is the driving force, so heterosexual 'spicy queer' etc is all part of the giant umbrella.

Who would you be needing to exclude and why? That's the only reason the act would matter.

By definition of the act/judgment many of the T people would in fact be heterosexual, this was a major part of the whole issue for those who wanted to be able to retain sexed based groups for gay and lesbian people along side.

A lesbian or gay group can exclude some trans people because the basis for the group is sex. Therefore a lesbian group can exclude trans id men but not trans id women because trans id women are female and trans id men are male.

Re: A bi group

I suppose it would depend if it were a single sex bi group. eg a bi-womens group could still exclude on the basis of sex and exclude trans id men but not trans id women because trans id women are female and trans id men are male.
A mixed bi group would be mixed sex anyway so I don't see how you could exclude anyone.

It's just easier to think of people as either male or female sex when interpreting the law rather than the nebulous concept of how they identify.

Oh it's a nightmare. Because it's so tempting to think you should include someone because of something rather than not being allowed to exclude them.

It gets me every time. I totally grasp it, and then it's so elusive I lose it again.

But I think I'm right 😃 (I never like to be unequivocal about the equality act!)

It's partly, of course, because transactvism says you must include men into women only spaces because of their protected characteristic (of gender reassignment).

But the Supreme Court has now clarified that the only way they would be included is if that actually meant they were women, and no they're not.

Not even with a legal piece of paper that says they are. They're still not.

but lobbyists and activists have spent years saying the opposite.

Little wonder everyone is confused

Unfortunately what OP is asking isn't covered by the EA because "identities" are no a protected characteristic.

There is

• Sexual orientation
• Gender reassignment

Which could be used to set up a group, but would not apply to the far larger group that Stonewalling has led them to believe have a legal entity.

So LGB and GRC yes.

The rest of the rainbow initials no.

Although would love to see a Judith Butler explanation of how queer should be written up as a protected characteristic in the EA.

(hmmm have I got time to talk to ChatGPT)

Oh there you go, that's why I'm never unequivocal.

Sexual orientation is the protected characteristic. Not heterosexuality.

Which, frankly, to me, makes it even more complicated. So I'm not even going to try and do examples.

It's just like school, I'm gonna copy the answers of the girl next to me.

Edites to add that my post was in response to AnSolas explanation

I would think that you couldn't just randomly mix sexuality with gender identity as a group like that.

What you might get would be gay men or lesbians with a transgender identity, because they would fall under the sexuality element. And really, that is pretty much why the T began to be associated with sexuality in the first place.

But surely the law is only relevant if you want to use protected characteristics to exclude groups. You can have a railway enthusiast and fishermen's hobby group without any problems until you say it's only for pregnant women and gay men.

The WI for example has a problem because they cannot declare they are single sex and exclude some men but not others: women and that small group of men have no shared protected characteristic that permits legally excluding others.

Who from an LGBT is that group going to wish to exclude and therefore want to use that law?

A lesbian group could. A gay men's group could. An LGB group could. And those groups as we all know, do need to.

Well that was what I was trying to say.

So in asking about LGBTQI* only(!) group not all the initials are protected characteristics, so the EA isn't relevent.

And in fact, despite all the hype about how trans are being discriminated against, the current social practice, acceptance of events, groups etc., advertising under the umberella term aren't ever challegened as far as I know.

But thankfully the protected characteristics do allow men who are same sex attracted to form a group, and women who are same sex attracted to form a group.

And sadly this is still the case. That the protected characteristic of same sex attraction has been underminded by the trans activists. Who, as we all say so often, seem to focus on imposing themselves on other groups.

The whole question doesn't make sense.

T isn't a protected characteristic, gender reassignment is. Unless we want to define T narrowly as people with GRC, the protected characteristic doesn't get into play for T focused group - and they never did.

Plus I second Flirts' point earlier - what do you have in common?

Just want to illuminate this a little:

Actually I do think LGBT people do share genuine social challenges / experiences that are tied to Patriachy's ideas about what is "ok" and my list of examples was a genuine attempt to show that.

Without denying the utter mess that T- and Q-politics have made of the LGB political movement I don't think the narrative that "T jumped on totally separate LGB" is entirely fair. Some strands of cross sex identity or performance have long associations with L, B and/or G culture and people.

Like so many things, it's best to stop thinking of "T" as one thing and see it more properly as a whole bunch of different reasons people adopt a cross sex persona, some of which do align and overlap with LGB experiences and politics. Commonalities that come from shared history and shared oppression are no less real than ones that come from shared bodies.

One reasons that #NoDebate is so bloody frustrating is that by refusing to accept there are meaningful and fundamental differences between groups (TW and women, LGB and T) and within groups we can't have conversations about what we share, conversations that would actually build shared understanding and insight.

Right, there are couple of different issues rolled up here (who can be in a group, and what a group is), so let's break it down.

Firstly, if you have an exclusive¹ group that is covered by the Equality Act then whatever the inclusion characteristics are must all be shared by everyone in the group.

So an LGB group for people who are same sex attracted would include lesbians, gay men and bi people of both sexes. It would also include trans people who are attracted to people of their own biological sex. It would exclude trans people attracted to people of the opposite biological sex.

A T group for people covered by the gender reassignment characteristic would include trans people attracted to either sex, but exclude LGB people who are not trans.

An LGBT group includes people with a mix of characteristics, and not everyone will share all of them. So it's not allowed.

So your initial concern is not unfounded. You cannot have an exclusive¹ group that is covered by the Equality Act that includes all of LGB and T.

But.

You could have an LGB group and a T group who hold joint events. (If anyone challenges the legal technicalities you might also need to hold some separate events, to show clearly they are separate groups - but it's unlikely anyone would get that nitpicky. Just having separate membership lists is probably enough.)

Or you could have an LGBT group that is not covered by the Equality Act.

Groups only count as 'associations for the purposes of the Act' if they have 25 or more people and have membership criteria.

An LGBT and allies group (or event, service etc) that was aimed at LGBT people but let anyone join in, would be absolutely fine.

A group for 'people interested in the LGBT lifestyle'² would be fine.

So technically it does cause some difficulties for mixed groups, but there are workarounds if people want them.

¹ In the sense of including people with certain protected characteristics and therefore excluding people without them.

² Whatever that might mean - it can be as broad as Stonewall's umbrella.

A T group for people covered by the gender reassignment characteristic would include trans people attracted to either sex, but exclude LGB people who are not trans.

But this wouldn't work because in terms of the law someone with a GRC is "legally" the opposite sex.

But under the Supreme Court ruling, can no longer claim that "legal" sex within the context of the EA because the ruling said that for the purposes of the EA sex was biological.

ie the previous "legal right" to claim that for all purposes someone with a GRC was the opposite sex is no longer true in relation to the EA.

So it wouldn't ever be a group about sexual orientation as those with a GRC would have to declare their birth sex. Or it would be difficult to classify as being same sex attracted.

Could make a complicated meet up if linked to sexual orientation!

But as a club or society support group for people with a GRC obviously okay.

Not forgetting if it is less than 25 participants it is not covered by the EA.

When it has no formal rules or fewer than 25 members

Clubs which have no formal rules governing membership or whose membership is less than 25 are not associations in equality law.

For example:
• A book-reading club run by a group of friends.
• A walking club which anyone who finds out about it can belong to.
• A choir which is open to anyone who works at a particular place but where no approval is required to join.

This sort of informal ‘club’ is not covered by equality law at all.

https://www.equalityhumanrights.com/sites/default/files/equalityguidance-associationclubsociety-2015-final.pdf

First of all, for years, women's network groups in corporations have been told they have to accept men joining because it would be illegal to have a women only group. Many corporate women's network allows men (actual self-identifying male men) as members - in practice they don't join (usually). If you're worried about being sued, allow 'straight allies' to join in your constitution, keep it on the down low and calm down, no hets will join. Why would they?

Secondly, you're making the naive mistake in thinking that because something is illegal, it's enforced. It rarely is. Rape is common and widely practised without punishment (99%+) as is disability / maternity / pregnancy discriimination. Most burglaries go unprosecuted. At the other end, littering, fly tipping and streaming IP without paying - all illegal, all rarely prosecuted. You usually have to get 6 figures in legal fees and 3-5 years of your life to get the EA enforced.

I think you've misread that para.

As I said, the trans group would be for people attracted to either sex (or, which I left out for the same of brevity, both) - i.e. sexuality is not a consideration. And because it is not a consideration, for this group it doesn't matter how same/opposite is defined.

Surely the SC clarification is irrelevant? It was only to do with the definition of sex. An LGBT group doesn’t differentiate by sex: it’s open equally to males and females, so what’s changed?

So an LGB group for people who are same sex attracted would include lesbians, gay men and bi people of both sexes. It would also include trans people who are attracted to people of their own biological sex.

Which was the original configuration of the LGBT, as heterosexual AGPs were in general hostile to gays and lesbians and didn't see themselves part of the gay rights movement, and stayed away. This is why the T made sense at the time. Ironically, adding the T could be read as: you might think that because you present as female you're not welcome but we still consider you gay (i.e. you're still a man 😮) and you're always welcome! But it would be wrong to say there was just one interpretation of the T and certainly it was contentious.

I think you've misread that para.

I think you misread my intent. ie I was pointing out that under the EA having a GRC means you legally become the other sex. But the recent ruling said that in the EA sex was always biological. So which is the sexual attraction. Your legal sex or your birth sex.

And as most people with a GRC the whole point it to be accepted as having changed sex what attraction is there in being with people who are saying their sex is a legal construction rather than being able to persuade somebody who has stuck with their biological sex to accept someone with a legal sex as "being that sex".

So a support group for people with a GRC could be a support group. But would provide not support for sexual orientation.

Which would it be? The certified sex or the biological sex?

Sexuality is defined by sex. So its definition is affected by the SC judgement.

But arguably yes, LGBT could be viewed as a mixed characteristic group that would fail the EA criteria under either the SC or ScotGov interpretation. Or you could say that under the ScotGov version, LGB sexualities all translate to 'anyone attracted to anyone' - which would make the group open to all and therefore allowed.

So which is the sexual attraction. Your legal sex or your birth sex.

Sex.is biological. Therefore sexuality is based on biological sex. The SC judgement had a whole section explaining it with reference to lesbians.

That is an interesting contribution. Thanks.