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.

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.

Akua Reindorf says it is a very low bar to get it accepted in any other legislation where sex matters

OK that's a different argument than the one I have been dealing with.

So far I've been addressing the claim that if you allow services to be open to cisgender women and transgender women, then that amounts to direct discrimination against men. I think that is wrong.

Your argument that actually that policy means that it is women, not men, who will have the claim because the policy I describe discriminates against them (presumably indirectly) is a different one. And it is one that I think could have more force, but also think is ultimately wrong.

And the main reason is this - I do not think there is a legal duty to provide single sex services for the most part (workplaces and new buildings aside). So for example, it is perfectly legal for a local leisure centre to have communal changing rooms with cubicles, rather than a mens changing room and a women's changing room. It is perfectly lawful, for example, for a nudist event to have mixed sex facilities. Provision of single sex facilities is an option, not obligatory.

I've no idea.

They did so because the law had been misrepresented to them. It was established female rights and protections that had been breached. That has now been rectified. Any organisation now doing so would be non compliant and any man repeatedly using women's facilities could be taken to court for sexual harassment.

But it would be lawful to have services only for people over 5 foot tall, for example (actually probably not a great example since that could bring in protected characteristics around disability).

The point is that service providers can exclude people for any reason they choose provided that it is not a protected characteristic.

If they want to exclude people who are below 5 foot tall, they could do so (though of course anyone who was shorter due to a disability would have a legitimate claim there).

If they want to exclude people who have blond hair, they could do so.

If they want to exclude people who have a tattoo, they could do so.

If they want to exclude people wearing red trainers, they could do so.

And like any other non-protected characteristic, if they want to exclude people who have a male gender identity, they could do so.

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

Ok, but then you also have to let in men who don't have a male gender identity. If you are going include women who don't explicitly "identify" as women as long as they don't "indentify" as men, then you also have to include men who don't explicitly "identify" as women as long as they don't "indentify" as men.

And now we have to start thinking about where this is happening.

Is it, for example, somewhere that is in theory supposed to be open to everyone, like a library, or a but once there the only way to access necessary provisions are based on gender-club? Because now you are getting worryingly close to indirect discrimination if one sex is likely to be less well served by mixed sex gender-club-based provisions than the other.

Seems odd then to have a strong view on how I will feel about my 'chosen identity' in a year's time when you have no idea what it is now.

For instance, there have been some enthusiastic TRAs in Northern Ireland telling public bodies that, since the EA2010 doesn't apply there, they can just go on having "women's" spaces that are mixed sex.

I think it's vanishingly unlikely that any court would regard the definition of "woman" in the Sex Discrimination (NI) Order 1976 as being any different from what the SC has just ruled.

You seem to be arguing in favour of 'gender identity' and those who have one being admitted into the facility of the sex with which they 'identify'.

I agree. I find this to be the most disturbing issue here. Weird as fuck

It's so much easier to understand once you drop all this "cisgender" & "trans" nonsense.

A policy that allows women and male transexuals to use the women's toilets is not discriminating against men on grounds of sex. It is discriminating against men who do not have the protected characteristic of gender reassignment.

All this post is say you think I am legally wrong without explaining why.

But to be clear, the Supreme Court has not found that venues cannot have services or facilities open to cisgender and transgender women, only that they are not obliged to, and that if they do they cannot rely on the single sex exemption.

Some people think that unless the single sex exemption is in place, a service or facility must be open to literally anyone. Which is plainly nonsense.

it is perfectly legal for a local leisure centre to have communal changing rooms with cubicles

There is a lot of push back against these going on as we speak because they have led to many unpleasant events that have compromised women's dignity, privacy and safety. The toilet sections are still separated by sex though.

But to be clear, the Supreme Court has not found that venues cannot have services or facilities open to [women and male transsexuals], only that they are not obliged to, and that if they do they cannot rely on the single sex exemption.

It's so much clearer when you cut through the jargon.

And also we're supposed to believe one can exclude from female facilities by saying "oi mate, I believe you have a male gender identity".

I'm going by the recent Supreme Court Ruling, which I watched live as it was delivered, in full, and on listening to the lawyers who represented 'For Women Scotland', and subequently the ECHR in numerous interviews.

The term you are struggling for is 'unisex'. This was covered in the ruling. All unisex facilities must be compliant.

Anyone may use a unisex facility.

"not having a protected characteristic" is not a protected characteristic.

So if men are not being discriminated on grounds of sex by the policy you describe (and I agree, they are not) then they cannot rely on discrimination by dint of not having another protected characteristic.

To put it another way, some protected characteristics are universal, in that it is possible for everyone to benefit from them. Age, for example. It's not only about protecting old people, or young people. Everyone has an age, and in theory everyone can benefit from that protection. Likewise sex and sexual orientation.

Other protected characteristics are limited to only some people, however. Disability is an example here. You can't claim discrimination on the basis of being able bodied. Only on the basis of being disabled. Similarly, you can't be discriminated against for not undergoing gender reassignment.

Yep.

What's that got to do with my 'chosen identity', which you seemed to know with sufficient certainty to tell me how I'd view it in a year's time?

You can find it nonsense but this is the law. If services do not invoke the single sex excemptions then they are mixed sex. Services that are mixed sex are open to those of both sexes. If services are mixed sex then there apparantely is no proportionate means of achieving a legitimate aim to make them single sex. So any man can join.

Thereby, any man can say they are a transwoman and who are you to say no.

There can be push back against anything, that doesn't make it unlawful.

In legal terms, yes. That would be a perfectly valid and lawful approach to providing services and facilities.

You didn't listen terribly carefully because the word unisex wasn't mentioned once in the judgment.

How do you know who's got a male gender identity? Assuming someone's identity is transphobic, so we're told.

On the other hand, exclusion by sex is simple, practical and doesn't rely on any assumptions about the service user's philosophical beliefs.

"services or facilities open to cisgender and transgender women" - sure. Assuming that you mean "cisgender women" in good faith ie women who actively identify as having the same mental gender as men who believe they are women do, and not just a bad faith shorthand for women in general, or make the bad faith aummption that any woman who has not explicitly defined herself to you as trans must be "cisgender", you can have that. It's the Gender-club, no different to a Goth club or a model train club.

What you can't do is use your Gender-club to directly or indirectly discriminate by sex.

So you can't let any female person but only trans identifying men in.

And you can't ask men on the door if they meet the rules but not ask women.

You are probably on risky ground if you let women with short hair wearing jeans and a T shirt in without question but stop men in the same outfit to check if they identify as women.

And if you are a venue or service that is open to everyone but then applies Gender-club rules to some element of your service, like toilets or life drawing classes or writing cricles, you need to make sure that this doesn't cause more problems for one biological sex than the other.

And all that said, I strongly suspect that if you use the word "Woman" in your marketing, T&Cs etc you will be on very shaky ground, so assuming your aim is genuinely to serve your Gender-club market and not to continue the discredited appropriation of female-specific language and history for men who claim to be women, you would do well, and also claim more hearts and minds, by finding a new, uncontaminated name for your mixed sex social identity group. "Femme Night" or "Pink Club" or something.

It was just a statement of fact, your honour

And I'm still not clear what happens to the people without a gender identity