Gems from the Trans Legal Project response to EHRC consultation

[MyAmpleSheep]

The Trans Legal Project's response to the open EHRC consultation is available here:
https://www.translegalproject.org/blog-1

I was going to write a more detailed critique of it, but realized that working through what seem to me to be all of the legal errors contained in it would about a weeks's work.

If this is tldr for you, then don't worry - you have nothing to fear from this organisation's response.

Here are some gems though (TLP text in bold, my comments underneath.)

Use of the term biological sex is confusing.
Uh, no, no it isn't.

What happens if the individual refuses to confirm their birth sex?
Then you don't have to let them in; same as if they refuse to tell you their name or age, if those are relevant and required to provide the service.

What happens if an individual does not know their birth sex (e.g. they are intersex)?
People with DSD's know their biological sex, even if they later turn out to be mistaken. An honest mistake as to one's biological sex is exculpatory for using the wrong service. If any person is not sure, then they can take the trouble to find out.

How does a service provider determine the individual has answered objectively falsely if the individual has made a full medical and legal transition?
There's no such thing as a "full" medical transition, but if someone lies about their biological sex then they're just lying liars who lie. Just like someone who lies about their age, or other relevant condition of entry. Just because some people are lying liars, it doesn't invalidate the idea of responsibly confirming that your service is being used by the correct people.

What about trans people who “pass”? Based on this example those trans people who “pass” are permitted to use single-sex services
No, they're really not. If a "passing" trans person sneaks into a service for someone not of their biological sex, they're lying liars who lie, and shouldn't be there. No further consequences flow. See my previous point.

Following FWS, anyone who experiences sexual attraction is now bisexual.
This is too stupid to comment on further.

There needs to be a new example showing that trans women who breastfeed are protected by the pregnancy and maternity protections on the basis of case law.
Trans women can't breastfeed in the correct sense of the term.

First, a women’s group can choose to admit cisgender and transgender women. It is not direct sex discrimination as individuals of both legal sexes are admitted.
It is direct sex discrimination. A group that allows in all white people and only black people who shave their heads is still directly discriminating on the grounds of race, even though some black people are admitted. Similarly, a single token Irish person in your service is not a failsafe talisman to prove you're incapable of unlawful discrimination against Irish people (nationality).

Third, although single legal sex women’s organisations are possible in law, they are impossible in practice. The reason is that if the association does not check the birth sex of everyone who joins, they risk allowing a trans woman to join and losing the protection of the single-characteristic exception.
No, they're really not impossible in practice. If an organization confirms prior to membership with an applicant that their biological sex is female, and takes reasonable steps to confirm this, then its protection against a claim for unlawful discrimination is not diminished by the fraudulent membership of lying people who lie.

There should also be an example that it is unlawful when a single-sex women’s association tries to restrict membership to only same-sex attracted people as only single-sex characteristic associations are allowed. There seems to be a belief that lesbian only associations are lawful under the EA 2010; they are not.
Explicitly, associations for members who share more than one protected characteristic are permitted. That someone in authority could write that lesbian-only associations are unlawful under the EA2010 is quite ... surprising.

Many trans men take testosterone and pound for pound are as strong as cisgender men. Concerns about the safety of trans men taking part are misfounded and transphobic.
If a sporting body is unworried about the safety of women entering men's sport, they can permit them to do so, and it would be called a mixed category. Nobody is suggesting that's unlawful.

Trans women who play women’s sport these days tend to have to meet strict eligibility requirements. They are unlikely to have a significant advantage. If they do, it will be almost impossible to prove they have the advantage because they are trans.
They have a significant advantage not because they are trans but because they are men.

A domestic violence support group set up separately for men and women under sched. 3 para. 26(2). is being setup on the basis of bio-segregation. But trans men and women would not be able to attend the group for their lived sex due to the operation of the law and it would be completely inappropriate in practice for them to attend the group matching their birth sex. Indeed, if they were permitted to attend groups matching their birth sex the rational for separate sex groups would be undermined and para. 26 would not apply. As a result, trans people would be completely excluded from the service. Completely excluding trans people from the service would not be proportionate so para. 26 could not apply.

Completely excluding trans people from a service could absolutely be proportionate, if to include them in the service provided for either sex would make that service insufficiently effective, and providing a separate service for trans people is impractical (such as insufficient numbers for a group service.) For the same reason that a women's refuge service is not also obliged to provide a parallel men's refuge service. Schedule 3 para 28 explicitly permits a service provider to discriminate against gender-reassigned people in the context of single- and seperate-sex services, if a proportionate means to a legitimate purpose.

Trans women have been placed in women’s hospitals wards for over 50 years without issue. Further, every year thousands of cisgender men are placed in women’s wards due to pressure on the NHS. As a result, excluding all trans women from a women’s ward is not proportionate and the sched. 3 para. 27 exception cannot be used.
Excluding all "trans women" from a women's ward is explicit in the meaning of a women's ward. Historical failure correctly to place patients in single-sex wards doesn't excuse the practice.

The example should explain that a bio-segregated hospital ward is unlawful and instead a trans inclusive women’s ward should be operated instead.
I make no further comment on the claim that a single-sex ward is illegal.

. Gyms, changing rooms and hospital wards are not examples where a bio-segregated service is lawful.
Again, no further comment from me on the proposition that single-sex changing rooms are illegal.

First, this example stereotypes all Muslim women as being hostile to trans women and as such is racist. There are many varied Muslim communities, only some of which have transphobic views.
Objecting to a male person in a female changing room is not demonstrating hostility. To suggest that "only some" Muslim communities have transphobic views appears to be engaging in the same racism the author imagines in the EHRC text.

Imagine a trans man who has fully transitioned and is every inch a man.
Except the inches that count, eh? Nudge nudge, wink wink...

There's a lot more on the single-sex services section which mostly consists of repeating the same points (not unreasonably, given the way the consultation is structured) but I don't feel like typing out the comments again and again, and this post is already too long.

As I said, I don't think we have too much to worry about from this organisation's submission.

So sick of the constant reference to the nonsensical word ‘cis’.

I'd like to know what constitutes a description of 'gender identity' so the person providing the spaces knows on what basis to exclude those who don't have one and include those who do.

And is the criteria exactly the same for men and women?

They talked about commonly used symbols ( such as a figure in a dress) which are commonly understood to be representative of women; saying that such words and symbols, even if not using the actual word 'women' or 'female', effectively meant the same when it came to the designation of single sex spaces.

Can't find the exact location right now, but of you read through the ruling, or better, if you can manage to watch the ruling as it was delivered live, then you will see this.

Can we have a semantic definition of 'hate' please? Because it now seems to mean a whole range of things, none of which seem to have much common ground and it's become wholly incomprehensible.

https://supremecourt.uk/cases/judgments/uksc-2024-0042

Exactly. The mere presence of men in spaces purporting to be for the privacy and dignity of women only is harassment. And women are entitled to challenge on that basis.

So is Planet suggesting a segregated space, on the basis of gender identity, that allows women and transwomen, and doesn't discriminate against men in general, and thinks it can be called the women's toilets, and be operated on the basis of that?

So basically everything that TRAs want except the women basically give permission?

I'm not sure how many more ways I can explain to you that I am not talking about a single sex facility under the Equality Act. Where a venue adopted the approach I am talking about, the single sex exemption would not apply and would not be relevant.

Nothing in the Supreme Court judgment indicates that if you label your toilets as 'women' or 'ladies' or 'hens' or anything else, that that then needs to adhere to a specific definition. It is the reliance on the single sex exemption that gives rise to the need to limit access based on biological sex, not the signs that are used on toilets.

Sorry this is just utterly wrong.

A cisgender person cannot claim discrimination based on their lack of gender reassignment. That's not how the GR ground works.

I've explained this already - some protected characteristics apply to everyone in some way (e.g. age and sex), while others only apply to certain categories of people who have that protected characteristic (e.g. disability, gender reassignment).

So the only person who can claim discrimination based on disability is a disabled person treated less favorably than an able bodied person. An able-bodied person cannot claim discrimination based on (lack of) a disability if they are treated less favorably than a disabled person.

Similarly, the only person who can claim discrimination based on GR is someone undergoing GR, not someone who is not doing so who claims that their lack of GR is the basis for their discrimination.

All of this from you, including your diagram, is based on a fundamental misunderstanding of how the protected characteristics apply.

I don't even know what point you're trying to make that hasn't been answered a dozen times before.

But just in case, you are describing the rules that pertain if a space is designated single sex for the purposes of the Equality Act. I've repeatedly acknowledged that if a space is designated as single sex then it cannot admit trans people of the opposite biological sex.

But where a space is not designated as single sex for those purposes, that does not imply an obligation to admit all biological males. Service providers have always been free, and remain free, to 'discriminate' based on non-protected characteristics. In this case, gender identity is a non-protected characteristic and therefore a perfectly legitimate grounds for distinguishing which people are permitted to use specific facilities or services.

I agree. So such a toilet would be not segregated by sex at all.

But of course it is still perfectly permissable for it to be segregated by non-protected characteristics, like gender identity.

And before you try it again, no, a cisgender man can't rely on the gender reassignment ground to claim he's been discriminated against compared to a trans woman because of his lack of gender reassignment. Because lack of gender reassignment is not a protected characteristic.

I think the theory is that if you say WOMEN on the door but you have a wee dinky footnote saying "*this is not a single sex exemption for the purposes of the EA2010" that would be totally legal.

It reminds me of the theory that if you say "allegedly" you can't be done for defamation.

I haven't waved anything away.

I have pointed out that the obligation to have single sex facilities under the Workplace (Health, Safety and Welfare) Regulations 1992 have not been interpreted one way or another as to whether they mean biological sex or not.

And I have pointed out that the obligations in terms of building regulations apply in respect of new buildings, which is a small minority of the sorts of places we're talking about here.

And of course also more broadly irrelevant to issues beyond toilets like services and associations.

As for your second question, I suggest you go back and read some of the threads if you don't think any hate was expressed to organisations and venues that dared to offer trans inclusive facilities.

PlanetJanette An able-bodied person cannot claim discrimination based on (lack of) a disability if they are treated less favorably than a disabled person.

But what if a venue open to the public ONLY provided an adapted/accessible toilet which is solely for the used of people with disabilities?
Wouldn't that be a case of able-bodied people being treated less favorably/favourably than disabled people?

It's not just equality legislation that applies: there are rules and regulations setting out many aspects of building design, including the number, type and design of toilets which must be provided.

These should in the first instance be single-sex women's and men's toilets, a third space for people with disabilities, and an optional fourth space that anybody can use.
In the second instance, where there is insufficient space, a suitable number of single-occupancy 'universal' toilets of specific design can be provided instead of single-sex toilets, and anyone can use those.

Reading the entirety of material about the design of buildings and the provision of toilets, changing rooms, etc., gives a much clearer picture of what is required.

You say this law applies to 'employers and service providers'.

You are just wrong. It does apply to employers (but the meaning has not been interpreted by the Supreme Court), but it does not apply to service providers unless caught by new provisions of building regulations.

They are highly likely to be interpreted in the exact same way as the SC. What is the basis for any other interpretation?

That's not how courts work.

When a court puts out a judgment that people then use to incorrectly claim that X, Y or Z must happen, the court doesn't just put out a press release saying they are wrong.

Honestly, the nonsense some posters come out with on here while having the nerve to call others postings 'piffle'.

It's not enough that your scenario embodies a form of discrimination not banned by the law. Duty bearers must avoid all nine potential types of discrimination simultaneously. Your scenario discriminates against men by imposing a test for admission (gender identity) that is not imposed on the women. And against trans men under the PC of GR.

I don't agree, but even if you were right, then you are really just now arguing about how a venue or service provider describes things.

So even if you were correct that if the sign on the door says 'women', that must mean only biological women, the way that venues can operate trans inclusive facilities or services, if they choose to, is by being clear that they are open to women based on gender identity, rather than women based on biological sex.

I sort of agree with PJ that men claiming discrimination from being unable to access a so called women only space, even if some other men can, may not constitute a strong direct discrimination case. But IANAL and could be wrong on that. What PJ completely failed to consider as is clear from their posts is that women using a space which is badged as women only, but actually lets in a self selecting group of men, may have a claim for harassment against the owner/manager of the space. Its quite interesting that it never occurred to the poster that many women feel sexually and otherwise harassed by men being in spaces where they are undressed or otherwise vulnerable and expect a women only space, and that they may have a claim if an organisation misleads them or otherwise facilitates their sexual harassment.

Two points, PlanetJanette:
the obligations in terms of building regulations apply in respect of new buildings, which is a small minority of the sorts of places we're talking about here.

UK building regs don't just apply to new buildings, they also apply to alterations to existing buildings, e.g. any changes to toilet provision in an existing building, like removing all single-sex toilets and only providing 'universal' toilets - they'd have to be 100% building regs compliant universal toilets, in the required number.

As for your second question, I suggest you go back and read some of the threads if you don't think any hate was expressed to organisations and venues that dared to offer trans inclusive facilities.
Now you are shifting the goal-posts! Nobody would claim that in an open discussion, there was NO hate ever expressed by any poster, ever - it takes all sorts in an online discussion, as is proved by this thread
But what you actually wrote was:
you couldn't move for people hopped up on hate.
which is a far cry from 'there were some posters who said things that I personally think were hateful', which I wouldn't quibble with.

It was a discussion. There were a posters calling for what were called 'third spaces', i.e. unisex toilets [actually fourth spaces] to accommodate people who chose not to use the toilet designated for their sex. There were posters who mostly just wanted males out of women's toilets. There were posters who shared their detailed knowledge of UK building/workplace/health and safety regulations. There were posters describing their negative experience in venues where women's toilets had been removed and replaced by 'gender neutral' toilets. There were many long, detailed discussions on the subject.

But to you it was you couldn't move for people hopped up on hate.

No it doesn't.

Biological men and biological women alike would be subject to the same requirement as to their gender identity.

No, I’m not just arguing about that. “Trans women” are men. The legitimate aim of providing spaces for women is for women, not “women and some men”. That expectation strengthens the harassment case, I think.

Anyway, this will all be thrashed out in the courts, I imagine. We soon have Sandie Peggie back in court. Part of her claim is harassment.

The reason I am focused on the Equality Act is because that is what was interpreted by the Supreme Court. Obligations to have single sex toilets under building regulations apply to new buildings, so not relevant to the vast majority of situations we're talking about.

The point is that the poster claiming that a cisgender man would have a discrimination claim if they were treated differently to a transgender woman on the basis that they have not undergone gender reassignment was simply wrong.

Someone who has not undergone Gender Reassignment cannot claim discrimination on the basis of lack of gender reassignment.