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.

Funny you should ask that i was just musing about posting an experience i had in London a couple of years ago.

Was a traditional pub, very small. I was directed to the basement when i asked where the loos were.

I got there to find that there was a door for “men” and then a door for “gender neutral” where the there were no floor to ceiling cubicles, and one sink.

I swiftly used it and then went and complained. I told them they cannot offer a toilet for the exclusive use of men but have nothing for women.

I got a shrug.

Guess they are going to have to reinstate the women's now.

(b) is not a red herring. If you purport to offer a single sex service whether it's labelled as Stags & Does or Cocks' & Hens it's discriminating against women if you allow some cocks to use the Hens.

PlanetJanette I know you folk are really attached to the 'you can always tell' nonsense, but you really can't.

Oh look - we've become 'you folk' - yesterday somebody called us 'you people'.
We're obviously one big amorphous indistinguishable mass of GCness!

PlanetJanette hasn't answered by question about why she referred to women sharing their opinion as 'you couldn't move for people hopped up on hate '.
One big amorphous mass of hatred as well?

Seriously? You really don't know?

You don't have to open to all, without limitation. You just have to apply the same rules to the women as you do to the men.

Which is why Femme Gender-clubs are on such shaky ground. If they aren't checking the rules for female people as strictly as they check them for male, they open themselves to claims of discriminating against men. But if they do apply the rules equally, they probably won't admit enough women to satisfy the men who want to join that their Gender-club experience is suitably Femme.

And if anyone tries to apply Gender-club rules to provisions within a setting that is supposed to be open to all (ie it's not Genderclub on the door but inside many of the activities are split into Genderclubs), they run the risk of indirect discrimination if genderclubs are worse for one sex than the other.

If a service is described as for women, but they use that term to include trans women and cis women, then the equality act doesn't regulate that.

Yes it does. The words "sex", "woman" and "man" do not mean whatever you want them to mean. You might as well argue that "woman" includes mares and ewes. It doesn't.

Judgment

The Supreme Court unanimously allows the appeal. It holds that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex.

"As a matter of ordinary language, the provisions relating to sex discrimination can only be interpreted as referring to biological sex"

https://www.supremecourt.uk/cases/uksc-2024-0042#judgment-details

This is the point that needs testing in court.

The words 'man', 'woman' and 'sex' in the Equality Act refer to biology, but do they by extension refer to biology for services and clubs and facilities which are outside the scope of the Equality Act?
Such as toilets for the public in a pub which are not claimed to be single-sex.

While the service provider will signpost the onus is on the individual to use the correct toilet. Decent people will be aware of the Supreme Court ruling & the EHRC guidance so will use the toilet appropriate to their biological sex.
The service provider would only need to start policing who uses the Ladies if there was a pattern of misuse by men that amounted to harassment of the females using the toilet.

An example would be "Clubs" or "Groups" that are NOT "Associations" as defined by the Equality Act - are NOT covered by the Equality Act.

To be an Association under the Equality Act there have to be at least 25 members.

So Clubs and Groups with less than 25 members are free to, for example, have a "Women's Book Club" that includes whoever they want.

They can define "women" as including women, men, ducks and drakes.

They can exclude that woman down the road who always eats all the chocolate biscuits and that bloke who is annoying because he's always going on about wanting to use the Ladies Toilets.

Workplace toilets must be single sex but unisex are only permitted in addition to single sex or where there is not sufficient space for both Ladies & Gents.

"Regulated" - no. What I said was you'd be on shaky ground.

The word "gents" isn't regulated but someone was just sucecssfully sued for sex discrimination for applying it to a mixed sex group. Because (and this is what TRAs never understand, for obvious reasons) - it's not about what you can bend the language to say, it's about what happens in reality. The test for discrimination isn't "did these specific words get used?" it is "was it in practice discrimination?"

And secondly, venues are free to adopt policies based on the view that if a biological woman is not transgender, then she has a female gender identity. It doesn't really matter if she agrees or not for the purposes of discrimination. It matters whether she is allowed into the facilities.

And again you miss the point. They'd have to apply the same rules to men. They cannot assume female people have a female gender identity without checking unless they also assume male people have a female gender identity without checking 😂

Seems bananas, right? But only because you have a religious belief in truth of this sexist trope. If we swap in other types of sexist belief you can immediately see the problem.

Let's say you have a mixed sex math competiton. The common, non protected factor on which you are going to entirely legally exclude people is maths ability. You can't let men in without a maths test because you assume men are going to be good at maths but require the women to take a test just because you have policy that says usually women aren't good at maths!

So by the same logic, you can't just have a policy that just assumes women meet your criteria by default but men have to pass some sort of test. Having a different rule for women than men is pretty much the definition of discrimination! So if you want to treat them differently then you need to show it's a propotionate means of achieving a legimate aim, and bang! it has to be sex based.

The word "gents" isn't regulated but someone was just successfully sued for sex discrimination for applying it to a mixed sex group.

@FlirtsWithRhinos Do you have a reference or the name of this case? This is the point that I was just saying needs to be tested in court.

Oops! You're right, at least as I understand the law to apply to workplace toilets. So if the staff use the same toilets as the customers they have to be single sex. Unisex would be an add on.

Maybe another example will make it clear.

Simplicio wants to hold a public social event for women under 40 and men over 40. He argues that because he’s admitting both men and women, he can’t be discriminating by sex, and because he lets in people both over and under 40 he’s not discriminating by age. So this is lawful. Right?

Wrong. In fact he’s discriminating unlawfully on grounds of both age and sex. A 27 year old man can successfully claim unlawful discrimination by sex (if he were a woman he’d be admitted) and age (if he were over 40 he’d be admitted). He can choose which to present to the court, and would be well advised to present both claims.

In your hypothetical “people with female gender identities” service, it’s unlawful discrimination against anyone refused entry (men who aren’t trans, and trans identifying women) not on zero grounds but on grounds of both sex and gender reassignment.

Does that help you see why what you want to achieve isn’t possible?

How would I know what gender I have or am?

My apologies - the discrimination charge was unsucessful (it was based on whether a redundancy was discriminatory or not, with the use of "gents" part of the supporting evidence). However given the judge noted the the use of "gents" to a group including women is "unacceptable", I think my core point to Planet that just because a term is not explicitly "Regulated" that does not mean it cannot be judged to have been used in a way that leads to discrimination still applies.

https://www.thetimes.com/uk/law/article/gents-is-an-unacceptable-term-in-modern-workplace-judge-says-xjcbtftv2

(Also this would not have been the test case for your scenario anyway, as this is about a woman being disriminated against by male single sex language that excludes her rather than by single sex language being applied to include men)

I can’t see how.

You acknowledge there is no legal obligation for pub toilets to be single sex. So it’s not the fact of having a space that includes trans women that would give rise to a cause of action. It then becomes about whether a venue can describe a space as being for women but include people that some regard as not being women. I can’t really see on what basis that would arise. Venues can call their facilities whatever they like (see above the example of ‘does’ and ‘stags’). The equality act doesn’t regulate how words are used in common parlance.

I really have no interest in the sympathy or indeed the agreement of anyone on here. This discussion is a question of what the law is. And those claiming that the law clearly mandates that trans women be excluded from womens services, and trans men be excluded from men’s services, even if the organiser or service provider wants to include them, are wrong.

It’s like you haven’t read a single thing.

Of course it’s relevant if service providers take the option open to them to provide services and facilities based on gender rather than biological sex.

But you’ve inadvertently conceded the point. The fact that a service is provided on a mixed sex basis does not mean that every single man or every single woman is permitted to join.

Other criteria can apply that limit some men and some women from joining, provided that the criteria does not exclude based on a protected characteristic (such as political party membership, or gender identity).

But it wouldn’t be a single sex service.

It would be a mixed sex service, the criteria of which for use related to gender not biological sex.

No it’s really not. The law does not regulate how toilets are labelled in public spaces.

That is particularly the case when someone is exercising their rights to express a protected belief that the word women includes trans women. We are fans of protected beliefs around here right?

Of course some of us are waiting to see what the Women's Institute is going to decide what to do about this Mumsnetter's husband's application to join

https://www.mumsnet.com/talk/womens_rights/5333650-an-update-to-the-wi-announcement-thread-my-dh-just-got-a-reply-to-his-application-to-join-them?utm_campaign=thread&utm_medium=share

That is particularly the case when someone is exercising their rights to express a protected belief that the word women includes trans women. We are fans of protected beliefs around here right?

I'm not sure that is a protected belief tbh. Has it been tested in the courts? Has someone defined what a transwoman is?

I haven't "inadvertently conceded the point" - I told you that I agreed with you:

"I agree with you but would clarify that the context of my post was discussion of women's single-sex services rendered mixed-sex by inclusion of men."

However you have slipped up:

"gender identity" is not a Protected Characteristic.

It’s good that you acknowledge that as long as the same rules apply to men and women it would be lawful. That is precisely what I am describing.

As for the enforcement - of course in reality there is no toilet police anywhere, so I’m not sure the risks of discrimination are as high as you claim.