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

A Gender Identity pool for ‘feminine’ disproportionately discriminates against men (PC Sex) and therefore would be unlawful.

Because it's indirect discrimination, it would be lawful if a proportionate means to achieve a legitimate aim.

People often talk as though "discrimination" were inherently a bad thing, but many of us do jobs in which discrimination is literally what we are paid to do. Think of any job selection process, for example: its function is to enable a company to discriminate in favour of people who have whatever combination of skills and attributes they've dreamt up as being necessary for the job in question. It's only once someone demonstrates that those skills and attributes are more or less likely to be found in combination with some protected characteristic that there's any problem at all (and even then, it's complicated).

It would not be a legitimate aim if the aim was to discriminate against them.

A pool + changing facilities for (all) women except those that are Biologically male.
A pool for all biological men.
But the pools and facilities must be of equal niceness.

If they want to separate by gender then the sign on the ladies pond would need to be ciswomen and transwomen. This would exclude all women who don't specifically identify as either of those which is the majority of women.

That’s a bit like saying that signs for “Pool for people who like pink” and “Pool for people who don’t like pink” discriminate against people who don’t believe pink exists. (Pink doesn’t exist outside of human experience, there’s no wavelength for pink, it’s a construct of the human brain, so there could well be people who don’t believe in it.)

Or discriminate against anyone who doesn’t feel either way about pink.

I’m still not sure that would be unlawful. People who aren’t sure whether they like pink or not, or don’t think pink is real can use either pool.

The women who don't have a gender can also used the mixed sex pond*.

I think the problem would be that when women start using the men's pond and men start complaining, they will have to demonstrate that they assess everyone's gender equally, and it will be very difficult to prove or disprove the women's gender without suggesting that there are different criteria for people whose sex is male and people whose sex is female.

ETA *the original mixed sex/mixed gender pond.

Suggesting a pool for people who like pink is a straw man.

CoL are wanting to use criteria that align closely with sex so discriminate on the basis of the protected characteristic of sex and you can only lawfully do that if you actually use sex in line with exemptions within the equality act. You cannot pretend you are not using sex then discriminate based on sex.

You cannot pretend you are not using sex then discriminate based on sex.

I think that is their essential problem.

I agree. But the “pool for people who like pink” is a hard straw man to knock down.

It is irrelevant

I’m not sure. We have a tendency to dismiss anything inconvenient or difficult as “irrelevant”. There are some parallels.

You are simply trying to derail the thread.

How about a pool whose users are an association under Schedule 16 ie more than 25 people who share a single protected characteristic?

The PC is belief in gender identity which exists independently of birth sex.

No PMoAaLA is required.

The association has an additional entry rule, that members must believe themselves to have a female gender identity. Subjective GI or lack of it is not a PC so this is not illegal discrimination.

It's a mixed-sex pool for people of the transgenderist faith, limited along subjective gender lines in a way to which the Act does not apply.

Where did I go wrong?

No I’m not. I’m putting counter examples. Lots of people appear to think this (and other similar GC vs GI issues) are a slam-dunk sure thing, and can’t understand how anyone, courts included, doesn’t immediately see the correct answer. “But didn’t FWS rule categorically that separation by gender is unlawful and why hasn’t everyone immediately obeyed??”

What I’m putting to you are relevant arguments with close parallels, to illustrate this isn’t a clear thing, at least to lots of other people.

The devils-advocate arguments may be flawed, but some people, judges included, may buy them. Don’t celebrate the victory. It hasn’t happened yet.

You’re off to a good start with a single PC association, but you have to have a membership list and rules for membership, you can’t be a service open to the public.

Single PC association are generally lawful (except for single race); single PC services are not lawful, unless they meet the narrow conditions for one of the exceptions.

So it could work for the WI if they had explicit membership rules about belief, which would piss off the TRAs, because they think it's fact not belief, and the non-believing membership, who will have to leave, or pretend to believe. Taking us right back to where we started, with no WI for non-believers.

It's a mixed-sex pool for people of the transgenderist faith, limited along subjective gender lines in a way to which the Act does not apply.

I think that in practice, the problem is that this isn't actually what they want.

Don't you need to prove that Gender Identity Belief is WORIADS?

A challenger would need to prove it wasn't, and I don't rate their chances, given that it's been endorsed by the passage of the GRA.

The WI has to cope with its charitable purpose which is the education (etc.) of “women”. A new version of the WI could have a different charitable objective of course.

But yes, it would certainly stick in their craw if to achieve their definition of “women” they had to do a round-the-houses collection of different beliefs and self-declarations.

I’m not 100% sure but I suspect that a court would apply a “quacks like a duck” test and say, no, what you’re doing is trying to make legal something that isn’t. Maybe that’s what they’d say about the “it’s lawful positive discrimination in favour of a repressed minority” argument, and (again, supposition on my part) that’s why the WI isn’t running that line any more.

Wow, what a lot of irrelevant what ifs.

If access was based on a belief then that would also be discrimination under the equality act!

What if the earth was flat and we got rid of the equality act and no one liked the colour green, could be discriminate against women then???

For services, yes, but not for an association. Associations with a shared protected belief are allowed. They're called churches and so forth.