"Open to those who identify as women" - please help me articulate my opposition to this, clever women of MN!

[JaneOfGaunt]

I work in a male-dominated industry, so there are several women-only opportunities like scholarships and networking opportunities to try to redress this balance. These are generally described as open to those identifying as women. Since the Supreme Court ruling I have pushed back on this quite gently and been met with indifference and bemusement by my colleagues. I want to push back much harder, but there may be some reputational cost to me, so I want to be confident my argument is sound.

My understanding is as follows:

• it is illegal do discriminate on the basis of protected characteristics, unless there is a proportionate reason to do so.
• sex and gender reassignment (which in practice I think largely covers gender identity and doesn't require any meaningful transition) are both protected characteristics
• there is clearly a proportionate reason to discriminate in favour of women in my field, and lots of evidence to back this up
• but because of the supreme court ruling, this applies only to those of the female sex
• there is, as far as I'm aware, no evidence that those with the protected characteristic of gender reassignment are discriminated against in the field (in fact, there is anecdotal evidence that transwomen are over represented), and therefore it is not legal to discriminate on that basis
• if they open it to women and those who identify as women, this would therefore discriminate against male people who do not identify as trans.

Does this mean that opening these opportunities to those who identify as women, even if they are not female, is unlawful?

As far as I understand it, the fact that gender reassignment is protected is important here. I could, for example, as a concerned citizen of town X create opportunities only for people from town X in order to support my local community, and this would not be illegal because postcode is not a protected characteristic. But gender reassignment is, so therefore you can't discriminate on that basis unless you have an evidenced reason for doing so.

Am I correct in this? Or am I misunderstanding the situation / arguments? My colleagues are convinced the wording is still sound.

Thanks!

Yes, you have this right and your colleagues are wrong. Identification is not a protected characteristic. In the light of the Supreme Court decision it is no longer OK to frame the prize for people who "identify as women" and they need to offer prizes for women meaning biological women. This is more inclusive because it also includes biological women who identify as non-binary or as transmen. Even before the Supreme Court decision it would only have been legal to offer the prizes to biological women plus transwomen with GRCs. The Supreme Court clarified that "people who identify as women" aren't legally a thing.

You might be safer suggesting they take legal advice asap because (or perhaps safer to say "just in case") the interpretation of the legal situation has changed.

You're right. They can discriminate on sex under the exception to prioritise an under-represented group. But as soon as they start including males they are not using that exception therefore can't discriminate on sex at all.

One way to challenge it would be a man without the pc of GR challenging it as illegal sex discrimination. To legally discriminate they need to use the exception which means sex not identity.

Possible could be brought by a woman as some kind of indirect sex discrimination if the opportunities actually go to male trans persons gender unspecified? Given this is justified as a measure to increase women's access and is being given to ppl who understand the EA are classed as men?

Women minus women with identities plus men with identities isn't an allowable pc group to have positive discrimination for.

A lot of women, including me, wouldn't apply for anything open to 'identify as'.

The mantra of TWAW is a political point of view, one many women do not hold. It is indirect sex discrimination.

I’m not sure but I think in this case the protection of ‘gender reassignment’ is irrelevant rather than ‘important’ - it’s sex which is the category which is currently under-represented and for which affirmative action is a ‘proportionate response’.
males with a feminine identity would be being advantaged relative to other males if they are allowed to benefit.

Yes, it is unlawful. They need to either restrict it to biological women only or make it open to everyone.

They can set up scholarships and opprotunities specifically for trans people if they want to I think but I am not sure about that.

What they can't do is accept applications from or include trans women in any funding or schemes aimed at increasing the number of women in particular areas. They should be accept trans men and females whom identify as non binary if they want to apply.

They really need to check thr law again

I suspect the most clear cut discriminatory issue with this is that they are permitting some males (who are cosplaying) but not all males. As with the fab husband on the WI thread, a man making a complaint that they are excluded on the basis on their haircuts and wearing of trousers is, legally, a more obvious case of discrimination, as women, in these instances, are being included in the group.

I could be wrong, and it's really shit if I'm right, but I feel like our most powerful way of securing our sex-based rights, is for our male allies to raise these discrimination cases alongside women's campaigning.

I remember Helen Joyce saying (wryly) on one of the few Sex Matters podcasts from way back when, that she's sure it'll take men to finally join the debate and to say enough's enough to make the difference...

Thanks all for your input - really useful. I get the point that you maybe could have an opportunity for trans people, but if you are using sex as the basis for exclusion, as they are, then it can only legally apply to one sex. Thanks!

Just to say that I wouldn’t mention anything about whether transwomen are under or over-represented because fundamentally it’s irrelevant to the argument (for the reasons you’ve set out above) and it would just give them a point to argue about rather than addressing the actual issue.

S159 EA 2010

(1)This section applies if a person (P) reasonably thinks that—
(a)persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b)participation in an activity by persons who share a protected characteristic is disproportionately low.
(2)Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a)overcome or minimise that disadvantage, or
(b)participate in that activity.
(3)That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4)But subsection (2) applies only if—
(a)A is as qualified as B to be recruited or promoted,
(b)P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c)taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

So, they can do it only for people who share a protected characteristic.

They can have positive action for women, if underrepresented.

And, separately, they can have positive action for people with the protected characteristic of gender reassignment, if underrepresented.