Sex Matters - Hampstead Heath Ponds -

[SexRealismBeliefs]

Sex Matters, a charity that campaigns for single-sex rights, will argue that the City of London Corporation is breaching equality law by allowing trans women to use Kenwood Ladies’ Pond on Hampstead Heath.

Hearing this Wednesday.

https://www.thetimes.com/article/cceca8ca-4167-4b04-875a-40ddacfea782?shareToken=e9fe25a546d20835f1a5a66564cbf27b

Not all men though, and I think we play into their hands if we judge the biological sex not the actions. It's a bit like what I used to say to toddlers. I'll always love you, but I don't like your behaviour and I won't put up with it.

The sad truth is that women did put up with it while these poor representatives of their sex were young. Mothers, sisters, wives all let them get away with it, and we need to stop doing it and teach our daughters that they are worth the same as a man and that 'nice' is manipulative and any man who just wants us for our looks isn't worth having.

IANAL, but surely laws exist in their own right and don't always require precedent for a judgement to be made?

I thought that was only in edge cases that were open to interpretation.

I thought FWS judgement had made it clear that you can't legally have a bio women + men with gender feels service (ie woman gender) as that illegally discriminates against men who don't have gender feels (and possibly also discrminates against women who need the service to be single sex)?

Any legal minds out there who can clarify?

There isn’t a law that’s explicitly says gender-separated services are unlawful.

Now, does it feel like FWS made it clear that “made it clear that you can't legally have a bio women + men with gender feels service (ie woman gender)”?

Do you know the joke about the maths professor giving a lecture who says something like “and so…from lines 27 and 43 above it is obvious that this following result holds…” and writes up a new equation. Then a student says “Professor, why is it obvious?” - whereupon the Professor dives into a 45 minute diversion scribbling equations of ferocious complexity all over the board, until finally he gets the result he said. “Ah, yes,” says the student. “Now I agree it’s obvious”.

I agree that by discriminating on the basis of gender identity it is likely that they might be indirectly discriminating on the basis of sex.

How can it not be when we know from the census that only a tiny percentage of people state their gender differs from their sex? You also only need to look at the use of the pools to see that with few exceptions they discriminate between sexes - with men mostly using the pool labelled men, and vice versa.

Discrimination exists where you say ‘you can enter, but not you’ and there are only specific situations where this is allowed for protected characteristics. That includes sex specific toilets and changing rooms. It doesn’t matter if both toilets are the same - you are not allowed to say ‘white people in this toilet and black people in that one’. Nor could CoL have divided the pools by race, sexuality or marital status. And you can only rely on sex exemptions if you are using sex to discriminate.

In my imaginary example, I agree that the number of people who could be admitted to the pond would be quite small, as they would all have to believe they had a gender that was distinct from their sex, and it would have to be male or female, not non-binary.

Sorry - the gender would have to be masculine or feminine, not male or female, as that might imply a link to sex.

Again, I think the main problem would be that they would have to exclude most of their existing users who just want to go for a swim.

You can say “this pool is for people who like pink, and that pool is for people who don’t.”

whats the substantive difference in law between liking pink and “thinking of yourself as a particular sex”?

And how do you prove someone really likes blue and doesn't just want a go on the diving board?

Not if it means people with specific protected characteristics feel they can’t use it you can’t.

The Equality act both specifies what you can't discriminate on, and what you can.

You're allowed to get more specific with AND (eg. Black AND Homosexual AND women = Race + Sexuality + Sex)

but you're not allowed to OR characteristics as there's no common requirement

eg a group for people who are buddists, or women wouldn't be OK (but Buddhist women could be)

When they say 'combine characteristics' - they mean multiple characteristics embodied in one person, not across the group.

I don’t think “feel like they can” or “feel like they can’t” is relevant. They either can, or can’t.

Discrimination by “liking pink” is obviously lawful.

As to whether you can prove someone likes pink or not, why do you need to prove it? If you say you like pink then you like pink.

They can identify as liking pink for the day, and then they’re welcome to use the diving board. What’s wrong with that?

No you can't, because 'liking pink' isn't a protected characteristic.

You can suggest it, but you absolutely can't stop pink-haters from going in the pink-loving pool.

You absolutely can. Liking pink isn’t a protected characteristic, so on that basis, discriminate away.

The clue is in the name: people are protected from discrimination on the basis of protected charscteristics. Not from discrimination on the basis of characteristics that are not protected.

Good luck with that - because in practise the moment you let someone in to the pink pool who doesn't like pink, you've lost your legitimate reason to provide service.

Discrimination requires a legitimate reason including for non-protected characteristics. I think you'd struggle with a reason for 'likes pink'.

Edit - I think I see where the misunderstanding is. You can offer a service for people who 'like pink' but, refusing service to people who don't is where your issue is.

Edit - I think I see where the misunderstanding is. You can offer a service for people who 'like pink' but, refusing service to people who don't is where your issue is.

I think it would be difficult to prove that somebody doesn't like pink.

However, from the CoL point of view, I think their main problem would be that their three ponds were now mixed sex, and that is unlikely to please the service users who were not amused by the presence of the Man Friday team.

Thanks, this is helpful clarification.

The ponds is different because they're attempting to discriminate on a protected characteristic, which needs a good reason, and to be proportionate.

So yes, having a male only pond, but not a women's only pond is an issue. You might say that a male pond and 2 mixed ponds is sufficient - but I don't personally think that they can have a good reason for a male-only facility that wouldn't equally apply to a female-only one - and, that assumes that the facilities will be comparable - which they aren't.

As is trying to combine two disparate groups (males with gender-reassignment, and females without (or more likely, females with any gender-reassignment) - there's no common characteristic there on which to pin your proportionate response to a legitimate aim.

On what basis are they excluding males without gender-reassignment when they allow in males with gender-re-assignment, and females of any gender re-assignment? It will be a very hard case to argue.

They claim that trans identifying females may use the male pool but this is a lie.

The ponds is different because they're attempting to discriminate on a protected characteristic, which needs a good reason, and to be proportionate.

They are attempting to discriminate on the basis of gender identity which is not a protected characteristic and so not covered by the Equality Act.

They don't have any intention of having a single sex male pond. Their intention is that all the ponds should be mixed sex, but that there should be one pond for people who identify as women and one pond for people who identify as men.

The question is whether they can do that successfully without unlawfully indirectly discriminating on the basis of sex or driving away members who want single sex ponds.

They don't have any intention of having a single sex male pond. Their intention is that all the ponds should be mixed sex, but that there should be one pond for people who identify as women and one pond for people who identify as men.

This isn't a protected characteristic, as you say - the characteristic is gender-reassignment, so they could have a trans pool. Or a male AND trans pool, or a female AND trans pool (ie a single person with both characteristics).

They can't have a (female AND NOT trans) OR (male AND trans) though - because there's no justification/common characteristic to base that justification on.

The pool for e.g. people who identify as women would include people who self describe as 'cis', so gender reassignment would be irrelevant.

What they couldn't do, as you say, is also include or exclude anyone on the basis of sex, or make assumptions about gender identity based on their sex.

You misunderstand. I don’t need a legitimate reason to provide a pool for people who like pink. Liking pink is not a protected characteristic. I can discriminate by colour preference for any reason at all, and for no reason whatsoever.

And yes - that means it’s entirely lawful to not provide my service, my pool, my book club- to people who don’t like pink. I don’t even have to provide an equivalent. I can be as pinkist as I like.

As long as - and here’s the rub - that being pinkist doesn’t indirectly discriminate against a protected characteristic.

if you can show that more women like pink than men, then being pinkist is indirectly discriminatory against women. And since sex is a protected characteristic then the indirect discrimination is only lawful as a proportionate means to achieve a legitimate aim.