Please help me send an email to our Chief Exec who has announced they are ignoring the Supreme Court

[VivaDixie]

I feel I have to do something about this - even just a carefully worded email.

Background: I work in a large well known, well respected white collar organisation. Historically it was very stuffy and male, but in recent decades it has become more inclusive.

This may be v outing but yesterday the very stuffy male Chief Exec announced in an all organisation Teams meeting that - basically - they are ignoring the SC ruling and said that trans colleagues can use whatever toilet and changing room they want. He had all the #bekind #beinclusive vibes. He reminded us all we have to be inclusive for all, clearly women don't come under that umbrella. Made lots of noises about 'we will all have different views on this as its a sensitive subject' bla bla

He made some waffle about how they are reviewing the matter and haven't made any final decisions, but - and this is crucial - that they have already taken external legal advice. I believe the crux of it is that they don't want to change the toilets and want to be seen to be inclusive.

This was one of those teams meetings where you can't put your hand up but there is an anonymous Q&A at the end - I didn't get a chance to put a Q in as I was blindsided and didn't know what to ask without sounding like an idiot.

So I intend to email the Chief Exec office and need to think about what to say. I want to keep it brief but I am thinking of getting the following in:

1. They say they have sought independent legal advice. How has this legal advice aligned with the SC ruling in terms of the fact that allowing trans colleagues to use whatever loo (and more crucially changing rooms) they like has always been but is now confirmed as unlawful
2. They say they are inclusive of all - how does this protect women's rights to safe spaces
3. The toilets are not self contained - in that they have floor to ceiling cubicles but the sinks are outside the cubicles. (Mumsnet - am I right that if you are essentially making these mixed sex then that set up is now unlawful?)

My questions are clunky but I am going to think over the weekend how to articulate this. If anyone has any ideas that would be much appreciated.

In which case I think her position is absurd.

Ok

I have read the Judgment. I'm glad you agree that it does not specify that the Workplace Regs requirements relate to biological sex.

None of the other sources you cite claim that either, by the way.

@PlanetJanette

Given that it is undeniable that female-bodied people have different physical and social challenges to male-bodied people, why is it so important to you that female people not be allowed to have sex-specific rights, spaces and protections?

It is quite possible that @PlanetJanetteis advancing a sound legal argument and that employees with a GRC should use the workplace facilities that align with their acquired gender. This is irrelevant for the vast majority of trans employees who do not have a GRC and should never have been allowed to use the workplace facilities provided for the opposite sex.

My posts have been about what the law is. If you don't like that, then take a legal challenge or lobby to change the law.

But right now, the most standard legal approach would be that when a 2004 piece of legislation said that someone with a GRC was 'for all purposes' the sex of their acquired gender, that included purposes of prior legislation which has not been specifically carved out.

So those claiming with certainty that the law demands the provision of toilets and changing rooms segregated by biological sex are simply wrong. That question hasn't been tested in the courts, and the recent Supreme Court judgment did not change that.

They didn't because that wasn't the issue.

The issue was 'did the Equality Act break laws like this'. And no, they don't.

This! I'm sure that they would love to hear which organisation this is.

And, having found out who it is and that what you have stated is fact (and I don't doubt you) would tell the rest of the world. So we can vote with out feet and the shareholders with their boots.

Please contact them!

Or approach the JKR fund. I'm sure they'de be interested, too.

A derail indeed has Reddit gotten some legal advice

i think not

Disingenuous Janet.

Firstly, your posts on this thread are not about what the law is, but what you believe (or wish) the law to be. I believe the law to be settled and the various attempts to challenge and undermine this will only serve to clarify that. And sooner or later one of us will be proved right.

But as I just I just posted on another thread, if for some reason one of these misogynistic attacks does succeed, all that does is provide an absolute moral foundation to build the case for new laws and a new social consensus for female-only rights, spaces and protections entirely separate to whatever provisions those who experience "womanhood" may need. Because if "women" are not specifically female, what business would it be of "women" to speak for what the people who are specifically female may or may not need? On what moral basis would "women" have the right to claim the specifically female are harming them by excluding them when the law itself recognises that "female" is not relevant to "woman"?

Secondly and more pertinently, your posts on this topic are always against the possibility that female people should be allowed sex-specific rights, spaces and protections.

So I ask you again.

Given that it is undeniable that female-bodied people have different physical and social challenges to male-bodied people, why is it so important to you that female people not be allowed to have sex-specific rights, spaces and protections?

I know you can't do it but my petty inner self would love to just get a stick on tash.

Announce you are now gender fluid and will decide on a day by day basis whether you are feeling male or female today. If you are wearing the tash that is an indicator you are male and will therefore use the male facilities. The absence of the tash will mean it is a female kind of a day.

Haha that would be hilarious 😂

Thanks for agreeing with me.

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102kb9l/do-retailers-have-to-provide-single-sex-toilets-and-changing-rooms-for-their-cust

And again, this is the advice SabrinaThwaite copied upthread. Deals with customers and staff.

No I am disagreeing with you.

I get that you don't understand. It was always illegal for employer to not provide single sex facilities. The Trans Activists have pretty much forced employers to break the law by saying that the GRA breaks the legal requirement to provide single sex spaces. The supreme court decision confirms that the GRA does not break the legal requirement to provide single sex facilities. It never did.

The Workplace Regs include specific requirements for a ‘pregnant woman’.

The SC judgment for the EA2010 found that you can’t interpret ‘woman’ to mean anything other than a biological female in the context of pregnancy and maternity protections, and that you can’t then use a different definition of ‘woman’ (a male with a GRC for instance) for other parts of the same piece of legislation.

So it follows that, if the Workplace Regs require separate facilities for men and women, the definitions would refer to biological sex.

OMG

This reminds me of 6th Form Debates.

“If the legislation is clear, courts generally can't just set it aside because it creates practical challenges.” - discuss

The legislation was a complete FU, drafted on the back of a fag packet during lunch break, by a group of idealistic teenagers whose parents never said no.

Pontificating about whether the SC considered all the possible scenarios in their judgment is simplistic. The practical challenges you refer to are in fact illogical/ unsolvable situations.

“Schrödinger's cat “ springs to mind

A biological male enters a Women only space.

In your opinion it was Parliament’s intention that if this person possessed a GRC then they were effectively legally a woman and therefore entitled to enter this space. And it was also Parliament’s intention that no one could be asked to provide evidence that they possessed a GRC.

🤔

@PlanetJanette the SC ruling was very clear that the GRA did not interact with the EQA.

They said that.

What that means as a matter of law is that “the for all purposes” that you mention, only refers to the GRA, and nowhere else.

If you only read section 9(1) of the GRA you would think that is the end of the story, but it isn't.

Section 9(3) of the GRA sets out that "Subsection (1) [the bit you quoted] is subject to provision made by this Act or any other enactment or any subordinate legislation."

The SC court said that a "provision made by ... any other enactment" includes any law where to apply subsection 1 makes the other law incoherent.

Parliament can legislate as it sees fit. But where Parliament passes a second law that makes a first law into nonsense, courts bend over backwards to find a way to interpret that second law that allows the first law still to make sense.

Parliament passed the Equality Act 2010 sixteen years after the GRA. It did so in the full knowlege of what the GRA said and since Parliament never makes a mistake when it writes a law, Parliament must have intended the two to work harmoniously together. The only way for the two laws to work side by side is for Parliament to have intended 9(3) to be applicable to the EA2010.

It will make the same argument for the Workplace Regulations et. al.

Also the GRA allows the production of a GRC which nobody is allowed to ask to see.

So makes the whole GRA utterly pointless.

The GRA dates from an era before same-sex marriage, and when a woman's pension rights were different from a man's. Those things have been fixed now, so yes, a GRC is now much less significant than it used to be.

The secrecy of the GRC was one of the things the SC found to be a problem with apply the GRA to the EA. Single- and separate-sex services are allowed to be provided, as matters of propriety and decency. That becomes incoherent when a trans person with a certificate is allowed access while a trans person without a certificate is not: a piece of paper doesn't change the challenge to propriety and dignity. The problem is doubled when the existence of such a certificate is supposed kept secret.

The problem goes away when trans people with GRC's are to be treated the same as trans people without GRC's (who have always been seen as members of their birth sex) under the EA. Therefore that is the correct interpretation of the GRA.

Those who argue that the workplace regs require loo provision based on biological sex, not certificated sex, do so because:

The gra says that the grc holder's sex has changed for all purposes, but the act specifically states that this provision is “subject to provision made by this Act or any other enactment or any subordinate legislation”: section 9(3)." (As stated in para 24 of the fws ruling).

The judges' approach was to consider whether reading 'sex' as 'certificated sex' would produce an absurd outcome.

Much of the reasoning was about 'sex' in the 1975 sex discrim act. Sex did not have one meaning 1975-2004, then a different one 2004-2010, then back to the first one in 2010. The same meaning has continued from sda to ea.

They take these things together to mean that if a 'certificated sex' reading of pre 2004 legislation produced an absurd outcome then a 'bio sex' reading must be correct.

Watching with interest as my uni has declared "Use the toilets you feel most comfortable using." 🙄🤦

Well personally I'm most comfortable using single sex toilets, but apparently a person born male may feel the same way and they've okayed them using the same space as me. 😡 Ridiculous.

The Workplace Regulations, by contrast, pre-dated the GRA2004. As such, Parliament passed a provision saying that someone's sex was, for all purposes, that stated as their acquired gender in a GRC in full knowledge and view there was statute requiring single sex facilities in workplaces, in full contemplation that some exceptions were needed (e.g. peerages) and yet Parliament chose not to carve out the Workplace Regulations from the GRA2004 provisions.

Sex and gender are not the same thing, I think you know that.

If there are men using the single sex toilets then there are no single sex toilets. So this policy fails the Workplace Regs.

Yes it’s getting clearer because for sure the GRA wording is confusing and has led to lots of the problems with conflation of sex and gender.

As I now understand, the GRA was to create a legal standing for transsexuals regarding their human rights and their personal interaction with “the state” concerning pensions, marriage, finance, family etc. That was Goodwin’s part of the 2002 case and the privacy part came from “I”’s case regarding privacy & paperwork for access to education/employment. All of this covers issues when interacting with the formalities of the “state” rather than general “society”.

The GRA always had the exceptions in 9(3) and looking at them now it’s clearer to me that the exceptions all cover interactions where the rights of trans individuals clash with the rights of others? Sport, crime, succession, peerages etc and as you say there’s a whole “anything else” cover-all in the form of “any other enactment or subsidiary legislation”. Parliament presumably knew it would be complicated and thought they’d just wait to see what was challenged legally in due course. They didn’t predict that activists would create a new secular religion - with stringent thought-policing to enable widespread & blatant law breaking.

The “subordinate legislation” part of 9(3) applies to Building Regulations, Workplace Regs, Statutory Guidance etc and therefore covers toilets. And the ability to legally permit single sex toilets was first linked to the Sex Discrimination Act 1975 (segregation for the legitimate purposes of privacy, dignity and safety) and then this was replaced by the Equality Act.

So in reality, those with GRCs have been using single sex toilets on a legally dubious basis since 2004. This went unchallenged based on there being a very small number of transexuals and women’s goodwill/silence/confusion/coercion/avoidance (delete as appropriate).

Had things broadly stayed the same, transsexuals would have been left alone and women would have “budged up”. But by pushing self-ID the trans numbers (and so many cases of egregious over-reach) swelled to a point where women (FWS) made that (maybe inevitable) legal challenge - leading to the Supreme Court clarification. Which makes the idiotic push for self ID such a massive own goal.

In short - workplaces are obliged to provide single sex spaces, the sex segregation of which have been legally permitted by equality law since (at least) 1975. OP’s employer will fall foul of employment law if they don’t provide single sex facilities for women.

Trans people will have to bring their own legal challenges if they don’t want to use facilities on the basis of sex segregation. But this will, in no doubt, result in provision of “third space” facilities. Because while trans people probably do have a human right to a protected space - it’s not their human right to use the single sex space identified for women. Moylon & Mcloud will argue in their case in the courts/Europe but presumably those who have donated to the crowdfunder may be disappointed … apparently large sections of European law are based on a biological definition of sex which isn’t likely to get overturned. Ever. (I don’t have a citation for this last bit because it was mentioned by the FWS wims on a webinar and I didn’t catch the exact phrase).

Sorry for typing this all out but it’s helping me process all this info which is new to me - what have I got wrong ?!