DH -v- The WI, Thread 2

[Another2Cats]

@RareGoalsVerge rightly pointed out (thank you) on my previous thread that it was getting near the limit and that I should start a second thread, so this is it.

This is a link to the first thread:

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

So, a recap.

DH has long had an interest in a couple of activities that were only offered locally by the WI. Obviously, it never crossed his mind to try and join as the WI is a woman only organisation - or so he thought.

But then, following the FWS case, the WI made an announcement that they would continue accepting trans identifying men (TIM) as members.

I suggested to DH that he could now join the WI and jokingly said (although it wasn't really funny, I'm not good at jokes) that he wouldn't have to bother with a wig and lippy any more.

So DH applied to join the local federation and was rejected.

Various things then happened and DH is now bringing a sex discrimination claim against the WI.

The WI instructed a big Tier 1 London law firm, one of the partners of which then called DH and explained that they would be relying on section 158, Equality Act and invited him to withdraw his claim.

After that they sent a letter to DH stating that in addition to the section 158 defence it was also the case that the WI "does not purport to establish single sex membership within the meaning of the EqA"

They went on to say:

"As such, it is free to define “women who have reached the Age of Majority” within its Membership Rules as it pleases, as long as its definition is not discriminatory. As we explain below, the definition “women who live as women, including transgender women” is not discriminatory."

They also said that their membership policy does not discriminate on the grounds of sex or render reassignment and that:

"The Membership Policy does not exclude anyone on these grounds. It allows for the admission of “biological” men as members, as long as they are living as women. It also allows for the admission of people who are not trans, as long as they are living as women."
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So that is where we are as of today. The next step in the process will be in early August so there probably won't be any substantive update to the thread until then.

But, as I said earlier, even though I don't always reply to every post I do read every single comment (often more than once) and having people take an interest really does make a difference. Thank you.
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PS In their letter, they put quotation marks around the word biological - "biological" (see above). Both DH and I were rather confused by this and thought that they were perhaps quoting him in the Particulars of Claim, but DH hadn't used that term.

On looking at the letter in more detail, the answer was found in one of the footnotes. They said:

2 Where references are made to “biological” sex in in this letter, quotation marks are used to make it clear that we refer to the term as used by the Supreme Court in FWS, to mean sex as recorded at birth. This is not a term that NFWI would otherwise use itself, because sex (including the sex of trans and intersex people) is not binary in this way.

[emphasis added]

Well, it's going to be interesting to hear that point argued in court. DH did make a point in the Particulars of Claim to keep referring to "men with the protected characteristic of gender reassignment", perhaps this annoyed them a bit?

I would love to see their criteria for "living as a woman" but I suspect there's a dash of transubstantiation involved after application of lipstick and tilting of the head.

I know you have your Positive Action response covered, OP, but just wanted to add to general chat that I don't see how the leadership could lawfully exclude TiFs from the positive action (and why do they want to? Well, I suppose we all know why!). Iirc you can take positive action for the benefit of women, or for black/Jewish/Muslim/disabled people. One protected characteristic. Sex and GR are two separate PCs.

There is nothing that they are shut out of - anybody can make jam or collages or start a book club or whatever. The Positive Action defence seems to be basically claiming that not being categorised as women is the disadvantage, but it's not a disadvantage because no men are categorised as women under anti-discrimination legislation. I can't see a court accepting that TiM can't associate with women in normal life.

Edited for typo

You only have to be proposing to undergo a change of the physiological or other attributes of sex to claim the PC of gender reassignment.

I don't think they have formal criteria. I suspect they are just trying to put off men who don't claim to be women and women who oppose genderwoo.

@ChipKing love the username 😂

I don’t think they can exclude TIFs if a TIF for whatever reason wanted to join. There would be solid arguments that it’s illegal discrimination against women on the grounds of gender reassignment, which wouldn’t apply to men, IMO. IANAL etc.

Apologies if you've mentioned this OP but is your DH claiming direct or just indirect discrimination?

I do think you should get proper legal advice but I do wonder if this might be direct even though some men are permitted to join. Men are only permitted to join if they effectively renounce their sex.

If a pub had a "no black people" sign up, that would still be direct race discrimination even if they let a few white-passing black people in. It wouldn't become indirect race discrimination because some people of that race are allowed in. They still have a rule that is directly discriminatory on grounds of race.

The WI have a "no men" rule. That kind of rule (unlike the hypothetical "no black people" rule) can be lawful if the SSE is relied upon, but I understand that you have said that they have confirmed they are not relying on the SSE.

As you may appreciate if it's indirect discrimination then there is a justification defence that can be relied upon whereas that is not relevant in cases of direct discrimination.

It's bonkers, isn't it.

TIF: can I join?

WI: no, you're trans.

TIF: that's discriminatory, and anyway transwomen are trans and you let them in.

WI: that's different.

The bottom line is that the women's Institute are trying to make a case for validating men with a female gender identity.

Despite being set up to promote the interests of women, and having to actually exclude them using their own logic.

It really is an example of trans batshittery that we see played out over, and over:

The mantra of transwomen are women, which actually means they are a more special man than any other man ever, and everyone, including women, should bend over backwards to serve them. Including, and sometimes preferably, to their own detriment.

In OP's update post yesterday, I've just noticed this
"but women (as defined under the EqA) who choose to live as men are excluded by the Defendant’s membership rules."
except from their introduction to their
Equality, Diversity and Inclusion policy, they say
"The WI is an inclusive, supportive and progressive organisation for all women with a diverse membership of over 180,000 members." (my bold)
"The WI is open to all women. It welcomes and celebrates a diverse cross-section of women, offering a space where they can be themselves surrounded by other supportive women." (their bold).

www.thewi.org.uk/about-us/wi-key-messages/equality-diversity-inclusion-policy

People who want Gender Recognition certificates have to prove that they have been living in their affirmed gender for 2 years and have to confirm that they will live in it for the rest of their lives. Some people apply and are turned down. There are other criteria too, but they are much more straightforward - you have to be over 18 and you need a diagnosis of gender dysphoria and two medical reports.

Anyway, people ARE turned down so presumably they haven't persuaded the gov that they are indeed living as / intend to live as a woman/man?

What's the advantage of a trans woman having a GRC after the Supreme Court ruling? You can have passport etc in your "woman name" but you're still not a woman.

It still changes your legal sex/gender for the purposes of most legislation (but significantly not for the purposes of the EA 2010 following FWS)

https://www.legislation.gov.uk/ukpga/2004/7/section/9

I found this from the EHRC quite interesting. Most of it's now out of date on GRCs following the FWS judgment, but the following excerpt still seems to be relevant.

https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1470/147010.htm

Exceptions allowing services to be provided only to women (or only to men)
The first two relevant exceptions (Schedule 3, Paragraphs 26 and 27) allow service providers to provide separate services for men and women, or to provide services to only men or only women in certain circumstances. The symmetrical nature of the ban on sex discrimination means without these exceptions it would be illegal, for example, to hold women-only sessions at a leisure centre or a new fathers’ support group at a nursery. (my emphasis) ^177

Footnote 177: 177 Explanatory Notes to the Equality Act 2010, paragraph 738

And here is the aforementioned paragraph 738 relating to what the SSE permit in the explanatory notes to the EA2010.

https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7

Examples
738.These exceptions would allow:

• a cervical cancer screening service to be provided to women only, as only women need the service;
• a fathers’ support group to be set up by a private nursery as there is insufficient attendance by men at the parents’ group;
• a domestic violence support unit to be set up by a local authority for women only but there is no men-only unit because of insufficient demand;
• separate male and female wards to be provided in a hospital;
• separate male and female changing rooms to be provided in a department store;
• a massage service to be provided to women only by a female massage therapist with her own business operating in her clients’ homes because she would feel uncomfortable massaging men in that environment.

In case it wasn't clear, I just don't see how they can offer a service which excludes men without relying on the SSE.

WI members choose to associate with each other on the basis that they welcome and include anyone who lives as a woman, whatever their recorded sex at birth (“the Membership Criterion”).”

If you have GC beliefs are you excluded/banned? Does it apply retrospectively?

My (non-lawyer) opinion:

They can’t run a mixed sex service with “lives as a woman” as an entry criterion: that is overt sex discrimination against men.

They can’t successfully claim that a service where members are both male and female is single-sex to claim the single sex defence to sex discrimination because it’s not a single-sex group.

They can’t successfully claim that positive action for trans people is a defence to a claim of sex discrimination against men, because the comparison group for the sex discrimination claim is women members, not the trans people in the positive action group.

They can’t claim that the positive action makes the service single sex. There’s no indication in the legislation that positive action has any such effect.

They can’t claim that positive action provides a defence against any and all claims of discrimination. That would be absurd.

In summary, you’ve won your case. Congratulations!

As an association, the WI comes under a different section of the EA than a service provider or employer.

But they still have to either be fully mixed sex, or be single sex by using the SSE.

A GRC isn't needed for a passport in the 'acquired gender'. You can change your passport, NHS records, and I think driving licence without one. It is needed for a new birth certificate, and for marriage and death certificates in the acquired gender.

Thanks for flagging this.
In refusing TIWs they simultaneously break their constitutional promise to be open to all women, whilst breaking their constitutional aim of positive action to support trans people (because only TIMs count apparently).
That’s a major hole in their defense

You're right NoBinturongsHereMate about it being the membership provisions generally, but if WI provide any services (eg educational services) then the service provider provisions will be relevant.

Does anyone else find it quite funny that the EHRC are still using the WI as an example of a charity which restricts opportunities to the female sex only?

https://www.equalityhumanrights.com/guidance/business/guidance-businesses/equality-law-voluntary-and-community/exceptions-charities-and

Exceptions for charities
If you are a charity you are allowed to restrict your benefits (which include the services you offer) to people with a particular protected characteristic if:
that is included in your charitable instrument, and either
it is objectively justified, or
it is done to prevent or compensate for disadvantage linked to the protected characteristic.
A charitable instrument is the document establishing or governing a charity. The charitable instrument usually sets out the charity’s purposes, how its income can be spent and generally how the charity will operate.
For example:
The Women’s Institute is a charity which provides educational opportunities only to women.

The WI, which appears to have changed its objectives from providing educational opportunities for women to providing affirmation for men. Only certain men, of course.

I assume the lawyer working on the defence will struggle with the WI being used as the example for protected Sss - but it’s marvellous for OP’s case 😎

Can someone publish the checklist please so I can make sure I’m doing it right…..

I asked, and they weren’t forthcoming with a definition or criteria.