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?

Maybe there’s not enough getting naked involved in the WI?

No you misunderstand how the equality act works. I agree that GI is not a PC.
The starting point for any club, service, employment or any activity is no discrimination : that is anyone can join anything. So all activities are universal. Then the law says that there are some circumstances where we will allow discrimination.
So the law says for example :
we will allow women or men to meet separately
we will allow this service to be for disabled people only ( so Pete can’t turn up at the para Olympics to compete in an event because he recently broke his leg - a broken leg doesn’t make you disabled.
we will allow gay women to meet at this club
We will allow this all women short list for the candidate for this political election
These are all lawful discrimination.

The law also says that using race as a reason for discrimination is unlawful for example.

The 2 cases SC and Pool confirm that an association based on gender identity would not be lawful discrimination. and therefore it can only be unlawful discrimination.

Ooooh, this interesting.

Institute of femaleness?
Institute of female likeness?
Female essence institute? Makes it sound like a perfume...

Institute of female something as long as its not actual females because that would be so bad. How dare women meet all by themselves without any males present!

True inclusivity would have seen those naked WI Calendars feature a bewigged MCW member flying in from Malaga Airport for the Movember photoshoot.

Everyone except manly men institute?
Fem up or fuck off institute?

I’m sure Dame Katy Denise has a suitable portfolio of candidates for whichever month is Chair Poverty Action Month (which, if it’s anything like Pride ‘Month’, covers anything between May and October).

The law also says that using race as a reason for discrimination is unlawful for example.

Not quite.

A person with any protected characteristic can be legally discriminated against if it is a proportionate means of achieving a legitimate aim:

a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic…[if you] cannot show it to be a proportionate means of achieving a legitimate aim.

Which is why it is legitimate to have organisations exclusively for black people, or Polish immigrants etc, to support their healthcare, or integration in schools etc.

The EA2010 https://www.legislation.gov.uk/ukpga/2010/15/part/2

I think it's a little more complicated than that.

Direct discrimination against people with a protected characteristic is obviously and correctly illegal, unless it is due to a proportionate means to achieve a legitimate aim - so it is illegal to say "no gay people allowed in our club" but perfectly legal to say "no male people in our club" if you can demonstrate a legitimate value to having a male-free environment.

The proposed solution however (of making it for people of the feminine gender only) would be indirect discrimination, which is also illegal. For example you cannot say "no people with headcoverings in our club" because although wearing a hat or headcovering is not a protected characteristic, it is something that is more likely to occur among people with strong religious convictions so would be deemed as indirect discrimination against religious people. Basing membership criteria on gender identity would come under indirect discrimination because each of the two "main" gender identities (excluding the other 67) is more likely to occur within the corresponding sex but not universally so. Thus it would be illegal - sex discrimination is only legal under the specific clause for being a proportionate means of achieving a legitimate aim so there is no way to make indirect discrimination like this legal. The legal route is to use the legitimate exception and that has to be based on biological sex.

It would also be impossible to to word such a criteria in a way that included women who have no gender identity (like a lot of people in mumsnet) and didn't also include male people who have no gender identity (which might well include OP's DH and definitely includes many men I know) without referring to actual biological sex in a way that boiled down to sex discrimination.

Validation depends on being in the lady place with other (real) ladies, not a “trans women group”. That’s key.

For this whole time, the legal TRAs have used the comparitor as 'any other woman' not 'any other men' when men who say they are women were arguing in a court.

The judges who were looking at their arguments fell for it.

Now thanks to the SC clarification, it clarifies that the comparitor of 'someone ofthe same sex, without a gender recognition certificate' should always have been the case.

I wonder if old cases could be reopened on this basis?

I think it’s slightly different under the charity exceptions, S193:

608.This section allows charities to provide benefits only to people who share the same protected characteristic (for example sex, sexual orientation or disability), if this is in line with their charitable instrument and if it is objectively justified or to prevent or compensate for disadvantage. It remains unlawful for them to limit their beneficiaries by reference to their colour – and if they do their charitable instrument will be applied as if that limitation did not exist.

And the example given:

A charitable instrument enabling the provision of benefits to black members of a community actually enables the benefits to be provided to all members of that community.

As regard Race from what I understand, you can have a club / charity pertaining to a nationality such as a polish or a club for Caribbean and African descent but not a club for black people. ( the latter is in the EHRC guidance.)

I think the charitable objective has to be specific rather than broad - eg a specific social policy such as education or health improvement - and would then have to prove that it is a proportionate means to meet a legitimate aim.

ETA: the Charities Commission states that a charity cannot use skin colour (black or white) to limit the people it helps.

Colpir is the exception to single characteristic associations. A back-only association is unlawful.

Equality Act 2010 Sched.16 section 1(4)

The if this is in line with their charitable instrument part is where the WI justification fails. (Objective disadvantage is also contentious, but there's no need to even get that far.)

Their objective is supporting women and girls. Men are not women, so supporting them is not in line with the charitable instrument. The exception doesn't apply.

So, DH has received the Defence earlier this week. It was interesting reading and, as @SabrinaThwaite highlighted last Sunday (thank you), they are leaning heavily into the disadvantages suffered by trans identifying men (TiM).

It was written by a leading junior at 11KBW with 14 years call. Apparently, she has previously been instructed in some quite high profile cases.

I will go through some of the major points that they rely on in the Defence and I will quote two paragraphs from the defence as they are, I feel, quite instructive as to how they are looking at this issue.

I very specifically won’t refer in any way at all to what DH is putting in his Reply. Partly because he hasn’t finished writing it yet and, also, because it hasn’t been served on the WI yet.

But I will raise some themes and ideas that come to my own mind around this. This is just me having some random musings. I’ll probably split this up into separate posts as otherwise this will be too long.
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First of all, the quotes from the Defence. It has been a matter of some speculation on this thread as to what “living as women” means. Well, according to the WI, a woman is anyone who says that they are, subjectively, a woman (but trans identifying women are specifically excluded “Biological women living as men may not join”). They say:

“...it is admitted that the term “live as women” is subjective. The Defendant wishes members to be empowered to define themselves, and does not seek to police the definition in its policy. If a member sees themselves as living as a woman, then they will be admitted. As a membership association, the Defendant is entitled to set a subjective Membership Criterion if it wishes to do so. It is denied that this Membership Criterion will encompass all women (as defined under the EqA) as well as men who have the protected characteristic of gender reassignment. Anyone may choose to live as a woman, but women (as defined under the EqA) who choose to live as men are excluded by the Defendant’s membership rules.”

Oops! They seem to have overlooked that they are a charity with a constitution.
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The next paragraph that I will quote is the justification for positive action under Section 158:

In the alternative, even if the Membership Criterion would otherwise be prohibited under the EqA, it is lawful positive action under s.158. The Defendant will say that:

(a) Trans women suffer disadvantages connected to their protected characteristics (for the purposes of the EqA, they are biological men with the further protected characteristic of gender reassignment). These disadvantages include:

(i) Trans women grow up feeling that they are truly female, but are generally excluded by girls and women, or from activities for girls and women.

(ii) Even after transition, trans women often find themselves excluded from spaces and activities for women, compounding the experience of exclusion that they have always suffered. This has only been exacerbated since the judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, [2025] 2 WLR 879.

(iii) These experiences can often result in internalised feelings of exclusion, alienation and self-exclusion, as well as significantly higher levels of loneliness and isolation.

(iv) Trans people suffer disproportionately from poor mental health, including depression, which cannot be disconnected from their experience of exclusion, loneliness and isolation.

(v) Further, older trans women are disproportionately more likely to experience poor mental health.

(b) Arising from the above, trans women have needs connected to their protected characteristics. These needs include:

(i) accessing environments where they can feel included among other people living with the same gender as them; and

(ii) accessing opportunities that they may have been of felt excluded from as a result of being trans.

(c) Trans women have disproportionately low participation in certain activities. These activities include:

(i) educational opportunities;

(ii) professions and jobs; and

(iii) roles in public life.

(d) WI membership enables or encourages trans women to overcome or minimise these disadvantages, and/or meets those needs, and/or enables or encourages trans women to participate in those activities by offering a welcoming place where transgender women can connect with other women, socialise and learn together. To the Defendant’s knowledge, the WI is unique in the United Kingdom, in that there is no other similar organisation for trans women that offers this space. Specifically:

(i) The WI offers trans women an acutely needed sense of community, solidarity, inclusion with and acceptance by other women, including women who are not trans.

(ii) The WI offers trans women a sense of acceptance by providing a space where they can expect to be welcomed as women alongside women who are not trans, with no need to justify their presence, and free from prejudice, discrimination and judgement.

(iii) The WI offers trans women access to practical and educational opportunities that they have not been or felt able to access. Most directly, the WI enables and encourages trans women to access the opportunities and activities offered by WIs.

(iv) More broadly, by offering trans women inclusion, acceptance, mutual support and access to WIs activities (all as detailed above), it gives confidence and encourages their representation in other educational, voluntary and public roles.

OK, so what are my thoughts and musings on these topics?

Leaving aside for the moment that the WI is a charity with a constitution. Let’s take their claim that their membership is open to anyone who “sees themselves as living as a woman” at face value.

To my mind, that would still appear to be sex discrimination on two different bases.

It requires DH to hold certain beliefs which a woman comparator is not required to hold.

It strikes me that it is a necessary first step before living as a woman that a man must hold a belief in “gender identity” theory. It is only men holding this belief that can believe that they are able to “live as a woman”. Men who have “gender critical” beliefs do not believe that it is possible for a man to live as a woman or a woman to live as a man.

A woman who has gender critical beliefs is able to join the WI but a man who has gender critical beliefs is not able to join.

To phrase this in a different way. To my mind this is (albeit, not perfectly) analogous to a club that all women can join but only men who will eat bacon sandwiches can join. While this may sound perfectly innocuous, observant Muslim and Jewish men would not be able to join due to their beliefs. The requirement to eat bacon sandwiches is not imposed on Muslim or Jewish women.
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There is also the issue that seemingly equal treatment (everyone having to live as women) is in fact unequal treatment between men and women.

Needing to live as a woman impacts a man a lot more than it does a woman. To use another (again, not perfect) analogy, imagine if an employer like Tesco had a policy that required all employees to wear lipstick and makeup and dress in a skirt.

You might say that requiring all employees to wear the same thing is perfectly fair. But requiring employees to wear lipstick and a skirt at work causes a detriment for men that it does not for women as it requires men to dress in a socially unconventional manner for their sex and does not do so for women employees.

The treatment complained of is not merely a requirement to wear lipstick, it is a requirement for male employees to dress unconventionally for their sex while female employees are permitted to dress conventionally for their sex.
Now, some men might be quite happy with this. But this does not mean that there hasn’t been a detriment nor that it isn’t due to sex.

Please note that I am not, in any way at all, equating “living as a woman” as having anything to do with lipstick or skirts – that was just an analogy. But, I do believe there is a very clear parallel.

The WI say that they are open to anyone who “sees themselves as living as a woman”.

Making it a requirement that a woman is “living as a woman” (whatever that might mean) is, generally speaking, not going to be a burden for most women. All women need to do is to carry on living in a vaguely “womanly” manner, within the very broad parameters of whatever “living as a woman” might mean.
In contrast, a requirement that a man is “living as a woman” involves a much greater burden. It involves rejecting a conventional lifestyle, it may also involve the use of drugs and/or surgery. Any meaningful understanding of this phrase will involve living outside of the conventional understanding of what a man is.
A man is required to live a life outside of any sort of meaningful, conventional understanding of what being a man is. Women just have to go on living as they always have done.

That is, to my mind, a very clear example of less favourable treatment on the basis of sex.

As to their claims that this is a lawful positive action under Section 158, I did a long post on that on the previous thread (see my first post on this thread for a link to the first thread). So I won’t repeat that here.

But I will just add, that the WI argue that any woman who becomes a member of the WI must accept TiM as members:

“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”).”

Hmm, I wonder just how many women are aware of that when they sign up?

Going further, I wonder how many WI members are aware that they are expected to offer “support” and “acceptance” to validate the feelings of TiM to help improve their mental health?
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But there is one big thing that is overlooked in the defence (whether deliberately or not). It is that the WI is a charity with a constitution. Well, actually, it’s several thousand separate charities all of which are required to have the constitution that the NFWI provide for them.
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Please forgive my step into the history of the WI here but I found it very interesting.

The first WI group in the UK was set up in 1915 and then the national governing body (the NFWI) was set up in 1917. I’m not too sure when they first became a registered charity but the NFWI reorganised as a charitable company limited by guarantee in 1990.

Prior to that, from 1948 the objects of the WI were:

“The main purpose of the Women's Institute movement is to improve and develop conditions of rural life. It seeks to give to all countrywomen the opportunity of working together through the Women's Institute organisation, and of putting into practice those ideals for which it stands.”

Up until 1965 they actually had a rule that local WIs could only be formed in places with a population of less than 4,000.

The constitution was then changed in 1970 and it’s interesting reading the governing document from back in 1990 when the NFWI became an incorporated organisation. In the 1990 document it states that “The objects are unchanged”, which is in relation to the 1970 constitution:

“The National Federation is established to provide an organisation with the object of enabling countrywomen to take an effective part in the improvement and development of the conditions of rural life and to make provision to advance their education in citizenship, in public questions both national and international, in music, drama and other cultural subjects, and also to secure training for them, in all branches of agriculture, handicrafts, home economics, health and social welfare.

It exists to give all Women the opportunity of working together through the Women’s Institute organisation, and of putting into practice those ideals for which it stands.”

In case you’re wondering, “countrywomen” were defined in the 1970s and into the 1990s as:

“Countrywomen means women living in rural areas and women living elsewhere who are interested in the promotion of the arts, crafts, and sciences associated with rural life”

There was a further minor change in the constitution in 2002 but then there was a very big change in 2013. This change brought in a number of different objects which I thought that they might rely on in the Defence but they haven’t mentioned that.
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The WI argue that they have a separate EDI policy that allows them to alter the meaning of the word “women” in their constitution.

However, a policy is separate and distinct from the constitution. The constitution focuses on the charity's purpose, membership and governance, while policies address specific areas of activity as well as legal and regulatory compliance.

If the policy had been incorporated by reference into the constitution then what the WI is arguing would be correct. But the constitution does not reference any other policy and so it is a stand alone document. Indeed the current constitution does not mention the words “equality”, “diversity” or “inclusion” anywhere within it.

If the constitution had said something like “The WI will follow its most current EDI policy” then that would have effect. But the constitution doesn’t say that.
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Even if they were to try and argue that the meaning of the word “women” in the constitution includes anyone who sees themselves as living as a woman, regardless of the EDI policy not being incorporated, then I still don’t see how they could do that.

Up until 2002 membership was restricted to “countrywomen”. That was gradually expanded to include all women by 2013. The “concept” or “category” of WI membership has expanded from one group of women to all women through express changes in the wording of the constitution.

Even without express changes in wording though, it is possible for what is included in a concept or category (women in this case) to change over time.

The classic example of this is the Bill of Rights 1688 that forbade “cruel and unusual punishments”. The concept of “cruelty” is the same today as it was then but, due to changes in social standards, punishments that wouldn’t have been considered cruel in 1688 will be regarded so today.

Or the concept of a child’s “welfare”. The word was used in the Guardianship of Infants Act 1925, now the Children Act 1989. The concept of welfare is, no doubt, the same today as it was in 1925 but the contents of that concept (what “welfare” actually looks like in a practical way), is to be judged today by the standards of reasonable men and women in 2025 – not the standards of their great great grandparents a 100 years ago or their parents back in 1989.

However, this does not mean that you can construe the language of the WI constitution to mean something conceptually different from what was intended. To try and include a group (men) that is conceptually different from the ordinary, accepted, meaning of “women”, seems to me to not be possible without expressly altering the constitution to reflect that change.
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So, these are my thoughts, anyone else have any thoughts?

I’d love to know if you’ve sought professional legal advice yet.

Well it sounds like you've got this. I agree with all the counter-arguments you've proposed.

I'd be interested to know what the WI ask when prospective members apply. If you tick "F" for female on the application form, is there a follow-up question of "are you living as a woman?" I am a woman but I've never really thought I'm living as a woman. I'm living as a human. I'm just living as me. I've never understood the modern interpretation of the word 'gender' to mean how you feel. Nowadays that would apparently mean I'm gender-critical. Could I join?

Can I, as a woman, do anything other than ‘live as a woman’? If I dress up in a suit and tie, cut my hair short, drink pints, watch the rugby, and call myself Andrew, I am still ‘living as a woman’ but larping ‘living as a man’.
If I truly believed I was a man, would that make any difference to the reality?

“...it is admitted that the term “live as women” is subjective. The Defendant wishes members to be empowered to define themselves, and does not seek to police the definition in its policy. If a member sees themselves as living as a woman, then they will be admitted. As a membership association, the Defendant is entitled to set a subjective Membership Criterion if it wishes to do so. It is denied that this Membership Criterion will encompass all women (as defined under the EqA) as well as men who have the protected characteristic of gender reassignment. Anyone may choose to live as a woman, but women (as defined under the EqA) who choose to live as men are excluded by the Defendant’s membership rules.”

I wonder if they can demonstrate this in practice across all the different groups?

Effectively, they are saying that anyone whose sex is female, but identifies as trans cannot join the WI, or must leave the WI. They don't seem to have considered non-binary identities.

I wonder if they really want to die on this hill?

I don't think there's a lot of case law on the positive action elements of the EA2010, so this case is ripe to end up in the Court of Appeal, regardless of how it goes at first instance. For that reason, I'm concerned that even at this early stage it's in the hands of amateurs, even those as skilled as the OP's family.

This is just 'women as support humans' again isn't it? Just like in prisons.