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.

@MyAmpleSheep Thank you for wading through that utter guff and breaking it down for us. They are not sending their best, are they? Or maybe this is the best they can do.

Naomi Cunningham agrees with me that the Supreme Court got it wrong😀

It is ironic that he treats as a strong point in the Court’s reasoning what is in fact a minor error: the Court says that the duty-bearer cannot ask whether someone has a GRC. That is a widespread belief, but one which has no foundation in law.

https://www.strath.ac.uk/humanities/lawschool/blog/genderdoesntmatter/

I know, I was conducting a thought experiment for whether it would have been possible for the Supreme Court to have ruled otherwise. My conclusion being that they considered this as a possibility and concluded that it wasn't workable, because the provisions of the GRA make it impossible for a GRC to be used as a "get into women's spaces free" card.

Perhaps what their Lordships were alluding to was that formally asking if someone has a GRC puts the service provider in a difficult position regarding disclosure (“Why is THIS beared bloke in a dress allowed in but not THAT one? … I’m afraid I’m not allowed to say.”)

The more one digs into this, the more obvious it is that disallowing a GRC to count for anything in the consideration of discrimination in the provision of services is the only practical way to understand the law.

There might be something to that. If we can spot a male person in a female space, and only a male person with a GRC is allowed into that space, then the male person's very presence would out them as having a GRC.

It was Cunningham, not Foran, that I was thinking of, and yes, that was the reference. Thank you!

I suspect that this whole thing is based on the canard brought up by the chair of the Women and Equalities Commission at Baroness Faulner: that the SC judgement only refers to membership of boards.
They are going to keep trying on that one, I think. And obviously think the rest of us cannot understand the judgement.

Do we know who the legal brains behind this organisation are?

I think it's because FWS started because ScotGov said a man would count as a woman on a board if he said he was a woman, because equality Act or their interpretation of it. They then reversed a little and said a man with a GRC would count as a woman. It seems clear to me it was the interpretation of the EA that was being challenged. It just happened that the man with the GRC could be a woman on a board was the nonsense that was the trigger. It could have been anything; men in changing rooms, women's prisons, football teams, it just happened that it was this.

If you admit some biological men, you have to admit them all, does not have any basis in the law.

What the Supreme Court judgment means is that a facility that is open to cisgender women and transgender women cannot rely on the single sex exception. It does not follow that such a facility cannot lawfully be offered.

For example, if a service provider wanted to create a service for anyone with a female gender identity, there is nothing in the Equality Act that prevents them from doing so. Yes, that discriminates against those who have a male gender identity but gender identity is not a protected characteristic, biological sex is. And since no one is being excluded on the basis of their biological sex, it does not discriminate on that ground.

I skimmed through the response. It's full of such nonsense like the phrase "women & trans women" being transphobic because it should be "cis women & trans women". Even the term “biological male” is a transphobic dog whistle apparently.

Do we know who the members of the TLP are? I realise I've been assuming that S. Whittle is one of them, but I don't think I have any evidence of that.

There are also references to gatekeeping access to single-sex spaces by interrogating butch women to decide whether they are "trans" or not. The last few paragraphs of their submission exemplify the bollocks (& lack of spell-check)-

Imagine a small service station, which just has toilets for men and women. A woman comes into the service station, pays for her petrol and asks where the toilets are. The cashier notices she is tall and has a deep voice and suspects the woman is trans. What does the cashier do?

Does the cashier ask her for her passport, for her birth certificate, measure her hand size and compare it to a chart of appropriate hand sizes for her height, check her genitals, check her cervix, swab her DNA? None of these determine someone’s trans status.

Ultimately the cashier has to decide whether she can use the women’s toilets.

On the EHRC’s view of the law, the service has to be provided under paras. 26 or 27, so all trans women have to be excluded. But if the cashier accidently excludes a cisgender woman that too would be unlawful.

The cashier actually doesn't need to decide which toilets are used & need do no more than say "The Ladies are here & the Gents are there." The onus is on the tall lady with the deep voice to choose the correct toilet.

Once more for those at the back - the law is settled. The supreme court decision sets out the law as it has always been.

thr purpose of the EHRC consultation is not to debate the law but to come up with examples and scenarios they didn’t include in their interim guidance. Which is not going to change, because it reflects the law.

It is mixed sex so all men are eligible.

That doesn't follow, however.

The fact that a service is mixed-sex does not mean those providing it have to open it up to everyone of both sexes. They can use other criteria to exclude certain people - provided that that exclusion is not based on a protected characteristic.

So a discussion group for Labour Party members might be mixed sex, but it does not follow that they have to admit all Conservative men. Similarly, a 'mixed-sex' service could exclude biological men and biological women who do not have a particular gender identity if they so choose.

As ever, such is the alacrity with which they jump to genital inspections that I strongly suspect someone was typing that section one-handed.

It could be someone living in their mum's basement for all anybody knows as nobody is prepared to have their name associated with TLP. Legally incoherent arguments hold even less weight when presented anonymously.

It would be called a 'unisex' facility, though, not a women's facility. In law a facility that is designated as 'single sex' is meant for members of that sex only.

Unisex facilities are legal, as long as they meet certain standards and requirements. Most orgnaisations have not got the time or bandwidth for virtue signalling a belief in Gender Identity, though, as to create a facility for people of both sexes, but then refer to it as for women and for men who identify as women. ( Not now, that the law is clear, anyway)

Not everyone has a gender identity, though. Who is going to go to the trouble of creating such a facility for the few that do?

provided that that exclusion is not based on a protected characteristic

The threshold for discrimination as settled in decades of case law is quite low - much lower than you think. If any protected characteristic forms any significant part of the decision to admit or deny service, the discrimination is direct, and unlawful unless covered by an exception.

Exactly. The woman could be asking on behalf of a mixed sex group of friends waiting in the car

@PlanetJanette Did you read this posted earlier? https://knowingius.org/p/is-the-women-only-tower-block-lawful

As a life-long, gold star lesbian, I can confirm that picking up women in the toilets is not really a thing.

However, I've read so much about all those butch lesbians - hundreds of them? thousands? - every TRA or trans ally seems to know one! - being chased out of women's toilets recently, that I might rethink my strategy..

Facilities can use whatever nomenclature they like. They can continue to call their women's facilities women's facilities. The Equality Act doesn't regulate the labels venues place on their toilet doors.

The Supreme Court ruling just means that if they allow trans women to use the women's facilities, if a cisgender man challenges them, the venue cannot then rely on the single sex exemption. But that does not mean that the venue has unlawfully discriminated against anyone, if their policy is to admit people based on gender rather than biological sex.

And of course they don't need any bandwidth - they don't need to police facilities, just as they tend not to police facilities right now. The point is that venues have a lawful route to provide trans inclusive facilities if they wish to.

You'd think that all the 6ft heavily muscled transmen that we're told will be in the women's loos would stand up for the butch lesbians and stop them from being chased out of the toilets