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.

There is no need to 'create' a facility. What I am describing is the sort of facility that existed in most venues prior to the Supreme Court ruling.

This is the rape counselling case in Brighton isn't it?

No female only service, only gender identity based services.

But being a biological male would play no part in refusing access to a service described as being for women.

The reason someone would be denied access is that they do not identify as a woman. As folk on here love to repeat, gender identity is not the same as biological sex, and gender identity is not a protected characteristic.

A man might be able to claim discrimination if he's excluded because he is biologically male, but not if he's excluded for having a male gender identity (including trans men).

Nothing so far suggests that a good Solicitor and a secretary/clerk could not deal with this gibberish between a late lunch and early cocktails.

If this is true why are GLP and the Trans Legal Project so upset about the Supreme Court ruling?

The Equality Act doesn't regulate the labels venues place on their toilet doors.

In theory it does: the way you advertise a service is an integral part of that service. A “no Irish” sign is unlawful, even if the service admits Irish people who apply.

The point is that venues have a lawful route to provide trans inclusive facilities if they wish to

They actually don’t, for reasons explained very clearly in Michael Foran’s post referenced above. Lots of people repeating what you say again and again doesn’t make it become true.

I hadn't seen that. Thanks.

I think what it boils down to is who is the appropriate comparator in determining whether someone is discriminated against.

Let's take the housing example - a woman only tower block that is open to biological females other than trans men, and to trans women. A biological man who is not a trans woman challenges on the basis of direct sex discrimination.

Who is the appropriate comparator here? It is not simply 'a woman' or 'a biological woman'. It would have to be a woman who is otherwise in the same circumstances as the man. So in this case it would be a biological woman with a male gender identity (i.e. a trans man). If the cisgender man is not being treated any differently than the trans man, then he is not being discriminated against compared to the appropriate comparator.

Let's take the example given in the article - a policy which admits white people (without qualification as to religion) and black people who are also Christian.

If a black muslim were to challenge this on the basis of racial discrimination, the appropriate comparator would not just be any white person. It would be a white muslim. And since a white muslim would be admitted but a black muslim would not, the case for discrimination is clearly met.

Foran's article doesn't properly consider the appropriate comparator for a cisgender man who is excluded from a service open to cisgender women and trans women.

The comparator must be someone in the same circumstances as himself apart from the protected characteristic. So someone who is biologically female but in all other relevant respects, the same. Since here, gender identity would be a part of the venue's policy, the comparator should be a biological female who identifies as a man.

Provided the policy treats the biological man with a male gender identity the same as the biological woman with a male gender identity, there is no direct sex discrimination.

First, because from the perspective of supporting the rights of trans people, a situation in which venues can choose to include trans people but have no duty to do so, is clearly less preferable.

Second, because the judgment has been used to go far beyond what the Court actually said, and has been stated, including by the EHRC, as inferring not only a lack of a duty to be trans inclusive, but actually a lack of an option to be trans inclusive.

My reading of the law does not render the Supreme Court judgment a good outcome for trans rights. It just renders it less bad than those who want it to mandate trans exclusion would like it to be.

You can create a space for "adults who were looked after children" because that isn't a PC so it's not discriminating against those who weren't looked after.*
You could create a space for "adults who have gender reassignment PC" aka trans people because that's a PC, if you wanted to discuss trans issues that's right and correct to exclude non-trans people.

You could also create a space for "everyone who believes in gender identity" because you can also have a space for "everyone who thinks GI is a load of tosh" aka gender critical people - that's the PC of belief.

What you're proposing is direct discrimination on the grounds of religion or belief however because it's discriminating against those who don't have a gender identity and for whom the whole idea is a nonsense and ONLY those women who have a GI are allowed to come, not the rest of them.

If you have toilets that say "Women's" but they actually aren't for women, that's discrimination on the grounds of sex (if you are an employer or a service provider you need to provide single sex, or completely enclosed unisex, toilets) AND false advertising (like saying "these sausages don't contain any meat" but they do)**

*if you don't know, this means they were in foster care.
** pun intended.

(Bets on which of our favourites is now called PlanetJeanette?)

Reads as if it was put together by a couple of drag queens given the extent of "misreading" and ignorance displayed in it. I was a bit disappointed not to see the killer argument that if women take their toddler sons into women's changing rooms etc then all the middle aged TIMs were entitled to be in there as well. 😂

But what is gender identity?

Trans people are included on the basis of sex where it's proportionate to have separate sex. It's fully inclusive of trans.

What you want is to disallow single sex services to ever operate, which is why this ended up in the Supreme Court.

First, service providers don't have a legal duty to provide single sex services. Employers do, but the GRA came after the 1992 Workplace Regs and there is no case law finding that those regs require those services to be provided on the basis of biological sex.

Second, no, it's not discriminating against women who don't believe in gender identity, because those women are perfectly free to use the trans-inclusive women's facilities whether or not they believe in gender identity.

They will do this finagling forever won't they?

It's the same bullshit baffles brains that's gone on for years.

As exemplified by Stonewall.

Your eyes probably glazed over before you reached this paragraph but they do indeed roll out a variation on their "male child in the Ladies" gotcha-

13.4.3 This example is incorrect. The justices in FWS would not make an exception for trans men and women who have completely transitioned and have bodies of their lived sex. Throughout the judgment they repeatedly used the transphobic term “biological male”, which includes cisgender boys. As a result, the service cannot be operated on a para. 26 and 27 basis. Instead, it should be operated on a mixed sex basis – for example permitting cisgender women, transgender women and boys under the age of 10 to use the women’s changing room.

Umm, no. What I am describing would allow service providers to operate on the basis of single biological sex if they wished to. I don't massively like that outcome but that is inescapably the outcome of the FWS decision.

What I am discussing is not whether service providers can provide services split only by biological sex (they indisputably can), it is whether they have an obligation to do so. And when you look at the appropriate comparator for, say, cisgender men who claim to have been discriminated against because they can't use a toilet for those with a female gender identity, the comparator is a biological female with a male gender identity, not a biological man with a female gender identity.

I'm always puzzled (not really) by those so desperate to insist that women are not entitled to single sex spaces. The insistence that creepy men are allowed everywhere no matter what along with tortuous arguments to find ways of wedging them in. Thank heavens for the SC judgment.

Still, thanks OP for going through that whole word salad so that the rest of us don't have to

Your comparator is wrong. “Male/female gender identity” is not a protected characteristic. Your problems would be over if it were. A court will re-cast your client selection criteria in terms of sex and gender reassignment and choose comparators on those bases (like Michael Foran does). Bluntly, the terms in which the venue chooses to describe its entry policy are irrelevant.

When set in terms of both sex, and gender reassignment, the correct comparators for a biological man without gender reassignment are firstly a biological man with gender reassignment (to consider whether GR discrimination has occurred) and a biological woman without gender reassignment (to decide if sex discrimination is at play). That makes the unlawful discrimination crystal clear.

Obviously if the court would let you define your own protected characteristics then nobody would ever be guilty of unlawful discrimination.

Service providers do need to provide adequate toilet spaces.
Non-single sex non-enclosed toilet spaces are not adequate - they mean that women, in particular, are more at risk of harassment and abuse, and also are likely to take way too long to go the toilet compared to men (see Invisible Women).

I can see you are not very good at reading because the GI issue is related to your other post about a group for (and I'm paraphrasing because I don't want to repeat your offensive term) "women who identify as women and men who identify as women". This excludes women who don't have a GI.

FGS! Thank you for pointing that out

Still - it shows how divorced these people are from the reality of women's lives that they think this is a persuasive argument. I did see the demands for men with a fetish for breastfeeding to be given maternity rights and protections.
Nothing like demonstrating who you really are to an already pissed off general public.

@PlanetJanette The problem you have to overcome (and can’t) is that in the law as it exists, there’s no protected characteristic that connects “cis” women and “trans” men. The only way to combine only those groups is to have some women (those who don’t have gender reassignment) and some men (the ones who do).

There’s no legal way to mix-n-match like that. There is no legally recognized “female gender identity” group.

@PlanetJanette A biological man who is not a trans woman challenges on the basis of direct sex discrimination.
Who is the appropriate comparator here? It is not simply 'a woman' or 'a biological woman'. It would have to be a woman who is otherwise in the same circumstances as the man. So in this case it would be a biological woman with a male gender identity (i.e. a trans man).

Surely the comparator would be a biological woman who is not a transwoman.

You mean a unisex facility?