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.

PlanetJanette 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.

Maybe the EA doesn't, but building regs Document T does:
All toilet accommodation should have clear and appropriate signage.

BTW that's in the same section which states that single-sex toilets are a requirement, and 'unisex/gender neutral' toilets are an optional extra, unless
Where space precludes single-sex toilet facilities from being provided, fully enclosed universal toilets should be provided.
Toilet accommodation: Approved Document T

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.

In which case you are discriminating against men, because you are allowing in all women, but only those men who comply with extra requirements.

Out of interest, why is it so important to you that female people are not allowed their own language, spaces or rights? Why will you only accept support for trabns women if it also destroys female people's protections and political and legal legitimacy?

It's so much easier to understand once you drop all this "trans woman" or "trans man" nonsense. The more accurate term is "male transexual" or "female transexual" which unambiguously shows both the biological or birth sex plus possession of the protected characteristic of gender reassignment.

There is no such thing as a trans inclusive 'women's' facility if the person with the trans identity is male.The workplace regulations relate to biological sex in the same way as does the Equality Act. The term 'Sex' has always been based on common understanding.

Now that the law is clear......I cannot imagine many employer's trying to flout the ruling, especially the expense of their public liability insurance etc. Most big employers already have single sex facilities, they will simply retain this and maybe add in third unisex facility in order to be compliant.

A single occupancy room with integral basin would suffice, but an employer would have to make sure they had enough of these to meet requirements...depending on the number of employees

It's the opposite actually. It is precisely because gender identity is not a protected characteristic that the hypothetical biological man claiming discrimination would be unlikely to succeed. Because the reason for his exclusion is not being biologically male, but rather having a male gender identity, which we agree is not a protected characteristic.

You are also wrong about the necessity for comparisons to relate only to protected characteristics.

Let's take a private members club that is only open to people with an annual income over £500k a year. If a 70 year old with income of £25000 and a 30 year old with an income of £1m both apply, the latter is admitted and the former not - if the 70 year old wants to claim age discrimination he needs to use a comparator whose circumstances are the same except for the protected characteristic which they allege to be the source of the discrimination.

So in this case, the comparator would be a 30 year old with the same income (£25k a year). Income is not a protected characteristic, but it doesn't need to be in order to be a relevant circumstance which needs to remain constant for the purposes of assessing the comparator.

Yes, why is it so important?

Is the female signage an essential signifier of transition? Without that doorway, men are just a man in woman's clothing?

Barclays were the first to announce the change back to legal provision. Do you think male employees are unsafe with each other in Barclays corporate offices?

As far as you are concerned women were never unsafe so as far as I'm concerned neither are men. They can have exactly the same consideration you gave women.

Nobody is 'excluded'. People with trans identities can use unisex facilities or the facilities provided for their sex. The law around facilities is not about how people identify, it is about their sex.

I don't have to overcome that at all.

In fact it is precisely because gender identity is not a protected characteristic that cisgender men can't claim discrimination viz transgender women if they are denied access to a womens service.

If gender identity (as distinct from gender reassignment) were a protected characteristic, then they could probably argue that they were being discriminated against based on their male gender identity. But since it's not, they can't.

'Gender Identity' has got nothing to do with Sex.

Any service that is listed or signed as being for female people ( and that includes the word 'Ladies' or any symbol commonly understood to mean' women/female) then it does not permit access to biological males however they identify.

The only facility that can admit both women and males with trans identities is one that is advertised, signed or labelled 'Unisex'...and then it must be compliant with regulations.

Further explanation is pointless.

No.

Because in this scenario, where the venue has decided to separate its services based on some factor that is not a protected characteristic (could be anything - hair colour, income level - in this case, gender identity), the appropriate comparator for a discrimination claim is someone who shares all relevant circumstances with the claimant except the specific protected characteristic.

So a cisgender man who claims that he is being discriminated based on his sex by a policy that allows cisgender women and transgender women to use the women's bathrooms needs a comparator who is:

(a) different in terms of the protected characteristic (i.e. a different biological sex, i.e. a biological woman); and
(b) for all other relevant purposes, in the same circumstances (i.e. they share any other criteria for admission which are not protected characteristics - i.e. in this case, someone with a male gender idenity.

Combining (a) and (b), the comparator for this claim would be a transgender man.

You can use terms like 'cis' and 'trans' all you like, but it doesn't change the facts of 'Sex' nor the legality of access to facilities designated as being for men or women, male or female.

No. I mean facilities separated by men and women, but which included trans men and trans women in those definitions respectively.

There is a perfectly lawful way for those facilities to continue to be provided - they just can't rely on the single sex exemption. But they don't need to, for the reasons I've set out at length.

You can't have it both ways though.

If the basis for inclusion is gender identity, which is not a PC, you don't fall foul of the EA. What you have is some sort of weird but entirely legal toilet club - you do you I guess - but female people who don't feel they share a gender with trans women have to be excluded.

If you want to include all female people even those who don't feel they share a gender with trans women, plus men who are trans women only, bang - you now discriminate against men and fall foul of the EA.

So your options are either people of either sex who enjoy a "womanesque" gender identity, or female people only. All female people plus womanesque gender male people is not an option.

Nope. In this scenario you wouldn't be allowing in all (biological) women. You'd also be excluding biological women with a male gender identity.

In other words, the relevant factor in the exclusion is gender, not biological sex. And as you folk are so fond of reminding us, gender is not a protected characteristic.

But I agree that a venue's policy that allowed access to women's services to all biological women, including trans men, as well as trans women, probably would be discriminatory against biological men, since it would only be biological men that needs to meet a specific gender identity criteria. But if that gender identity criteria applies to biological men and biological women, and everyone with a male gender identity is excluded, then there's no direct discrimination.

I think we're seeing a fine example here of the Underpants Gnomes theory of legal analysis.

1. Let's assume that TWAW
2. ???
3. Therefore, under the SC ruling it is perfectly legal to have "single-sex" "women's" spaces that include men with pronouns

If I were a cynic I'd speculate that Janette is starting from a desired outcome of men with pronouns having access to women's toilets and working backward from there.

These exist only in your imagination. Who do you imagine is going to provide facilities predicated on 'gender identity'? Most organisations just want to be compliant with the law and to provide the necessary facilities required of them. Now that the law is clear, and once they have receievd sound legal advice that is what they will do. Some will endeavour to also provide a third, unisex facility, or else they will make sure their existing unisex facilities are fully compliant.

OK, well first, thanks for acknowledging that it is entirely legal.

But no, women who don't feel they share a gender with trans women do not have to be excluded. Believing in, or supporting, admission criteria is not a prerequisite for benefitting from that criteria.

By this time next year you will have accepted that your chosen identity has limits. The world will not end for you, you will simply have to adapt yourself to it, just like everyone else.

Well, I was describing facilities that existed before the Supreme Court ruling. Are you denying that there were lots of venues that accepted trans women using the women's bathrooms and trans men using the men's bathrooms?

Because if so, I suggest you look back on this forum where you couldn't move for people hopped up on hate against various theatres for having trans inclusive policies.

As for whether venues will opt to retain those policies, they can lawfully choose to do so. I agree that the Supreme Court means that they are not compelled to do so.

And what do you think my 'chosen identity' is?

@PlanetJanette I do get what you are trying to say, but it is the 'gender identity' that is the problem. It going to be impossible to explain what it means in a court of law. I think it might be possible to have an association on those grounds, mainly because the 'wrong' people will happily self-exclude, but the naming of the association will need to be very carefully considered to avoid falling foul of discrimination law.
GI is not going to work for privacy, dignity and safety facilities because females will be able to claim discrimination and/or harassment if males are present.

But if gender identity were a PC then you would be able to discriminate on the basis of it. You could have facilities and services for "people with a female gender identity" and it would be lawful to exclude "people with a male gender identity" from those places.

As it is, the PC is sex and gender identity is as irrelevant as height.

"I am a man with a female gender identity so it is discriminatory to exclude me from female single sex spaces."

"I am a man who is below average height so it is discriminatory to exclude me from female single sex spaces."

Those two statements are as batshit as each other imo.

The problem is that none of my legal reasoning relies on assuming that trans women are women under the law. Certainly it is all based on the position that, under the Equality Act 2010, they are not women.

So the first line of how you describe my reasoning is entirely wrong.

PlanetJanette 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.

In the case of toilet provision, workplace regs, building regs, health and safety regs - all require single sex toilets, changing rooms, etc .

As Shortshrift points out, providing all-lockable-building-regs-compliant single-occupant cubicles, with washing facilities inside, for all employees would also meet requirements, but is unrealistic on a large scale.

What is NOT allowed is simply sticking a new 'gender neutral' or 'unisex' label on toilets which are not build to 'universal toilet' specifications.

In the real world, there are existing buildings open to the public, which normally already have sex-segregated toilets. They also have to have a 'third space', i.e. adapted toilet for disabled people. Some have chosen to add a fourth space, a unisex toilet.

So they already comply with the requirement for, in the first place, single-sex toilet provision, and it makes financial and organisational sense for them to maintain that configuration.

New buildings are bound by Document T of the building regs which was updated in 2024 to state that single-sex toilets are a requirement, unless there isn't enough space in which case a building-regs-compliant 'universal' toilet suffices.

The SC has ruled that in the case of the EA, sex means biological sex, so a toilet designated for use by women is to be used by women, not men.

If that's the case for the EA, the law would really really be an ass to say that the word 'woman' means one thing in one piece of legislation, but something else in others.

You say 'there is no case law finding that those regs require those services to be provided on the basis of biological sex' - I don't know anything to the contrary, but I'd be very interested to have a legal opinion on the definition of a word by the Supreme Court in the case of one piece of legislation being automatically applicable to all other appearances of that word.

Or will the definition of the word 'woman' in every single piece of legislation have to be tested in court so it doesn't mean 'woman' in the EA but 'woman or man' in other legislation?