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

We are indeed well into Church of the Flying Spaghetti Monster (all praise be to His noodly appendages) territory now.

Praise be.

A reminder of simpler times.

The Corporation of London is not an association.

No problem with the FSM, fully prepared to tolerate its acolytes. But some idiot went and passed a law that purports either to change reality, or to force people to pretend that reality has changed, in a way that affects their everyday lives. I can't think of anything comparable. So strange.

How many of the men who are voting members of the ponds are likely to want women in the men's pond?

If CoL get their way and access to the ponds is on the basis of gender identity then groups like Man Friday will have to organise so that the men's pond is full of women. If those women say they have a male gender identity how is CoL going to keep them out without risking a discrimination claim.

But what prevents such Associations (the genderists' swim club, the genderists' lady club, etc etc) from being created? In practice, I suspect it's the fact that the TRAs don't want to be a minority faith community and have a severe case of the Groucho Marx problem. They only want to join the club that doesn't want them.

Not yet established whether GI belief satisfied Grainger (but only because that's not been tested). Probably some indirect sex discrimination if "gender identity" often matches sex? Not that sex discrimination isn't allowed, but, as ever, only under very specific circumstances.
The biggest thing is that would be a private pool, which in law gets to be a lot pickier than a public service anyway. So, yeah, not totally inconceivable, but also not certain to work.

In the version I know, the lecturer stops, thinks for a minute, leaves the lecture theatre, walks around for 15 minutes, then returns and says, yes, it is obvious.

As spannasauraus points out, I think the problem would be that to avoid claims of indirect discrimination ponds would have to be truly mixed sex in a way that would include anyone who identifies as a man (perhaps because they wear trousers and like to vote) regardless of their sex, and that isn't what the CoL are trying to achieve.

It does worry me when they were talking about making all the ponds mixed sex and the issue with the diving board only being at the men’s pond. Again I don’t understand why they didn’t raise the issue of the Orthodox Jew and other religious women who wouldn’t have a pond to use if they were all mixed sex.

The diving board is significant (I think) because it establishes that a woman is at a disadvantage from not being allowed in the men's pool: her pool doesn't have a diving board. Unlawful discrimination depends on treating someone detrimentally, and the lack of diving facilities provided to her establishes the detriment.

Al Hijra is also very relevant here - it was cited in the hearing. In Al Hijra it was held that segregating boys and girls at school is a detriment to both, not (as was argued by the school) to neither. The school said that since both boys and girls were kept separate and neither sex was allowed to socialize with the other then there was no unequal treatment. The Court of Appeal said no, from the point of view of each individual boy (or girl) there is discrimination. Every boy is denied the benefit of socializing with girls (which he would have if he were a girl) and each girl is denied the benefit of socializing with the boys, which she would have, if only she were a boy. In other words, mirror-image discrimination is still detrimental.

In the Hampstead ponds, women are denied the "benefit" of swimming with the men, in a segregated pool and vice versa. (Yes, I realize that it's not a benefit, so maybe that distinguishes this from al Hijra - we'll see.)

The point being that having established otherwise-unlawful discrimination, it's the single-sex services exemptions in Schedule 3 that must be engaged.

"But what prevents such Associations (the genderists' swim club, the genderists' lady club, etc etc) from being created?"

I don't mean to derail this thread in any way, but that is what the WI actually argued - that they were "the genderists' lady club".

The WI claimed that they did not rely on the single-sex exemption in the Equality Act at all but that they were open to anybody who was, subjectively, "living as a woman" and that this was a neutral policy and that they were treating men and women equally by only accepting those who were "living as women".

There are arguments against that.

Two of the cases mentioned in the TT transcript of the judicial review application were Al-Hijrah and Coll (Chief Inspector of Education v Al-Hijrah School [2017] EWCA Civ 1426, [2018] 1 WLR 1471 and R(Coll) v Secretary of State for Justice [2017] UKSC 40, [2017] 1 WLR 2093)

These two cases are authority for neutral rules do not preclude their treating one sex less favourably than the other and that will be direct discrimination. What looks like identical treatment does in fact constitute less favourable treatment on grounds of sex where such treatment causes a detriment for the complainant but would not do so for a comparator of the opposite sex.

If you have an association with a "genderist" criterion of "lives as a woman" then this allows women to live conventionally for their sex. Generally speaking, this is not going to be a burden for women since all that they are required to do is to carry on living as they always have done within the very broad parameters of whatever “live as women” means. Women are not required to alter how they live their lives in any way.

In contrast, a requirement that men must “live as women” involves a much greater burden. It involves utterly rejecting a conventional lifestyle, it may also involve the use of drugs and/or surgery.

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. Framed like this, the "genderist" criterion is not neutral as between the sexes and is direct discrimination following Al-Hijrah and Coll.

And, of course, the opposite applies if the criterion is "lives as a man".

There was a discrimination case from back in 1996 (Smith v Safeway Plc [1996] EWCA Civ J0216-2, [1996] IRLR 456) which held that separate appearance and dress codes for men and women did not constitute sex discrimination on the ground that it represented a requirement of conventional appearance. The judge in the case said at one point:

“As [counsel for the employers] has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards?”

I am not, in any way, equating "living as a woman" with wearing lipstick

In the above example, 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.

Requiring men to "live" unconventionally, but not women, is direct discrimination (arguably).

There is also a complicated argument about why this can be distinguished from indirect discrimination.

The above arguments would also apply, I believe, in the ponds case.

With the WI, there was also the fact that their constitution specifically referenced "women" so they couldn't include men or exclude trans-identifying women.

Generally in a Hungarian accent, or was that just my university and era?

@MyAmpleSheep , once there is an association for members of the genderist faith, is that association allowed to have internal rules - like, you can only use this pool if your gender identity is female - that would (we think) be unlawful if a service open to the public had them? I'm guessing yes, that's fine, as the members of the association signed up to it, but not sure.

Associations aren't allowed to unlawfully discriminate amongst their members. No "black people can join but the pool is for whites only".

Most of the section on associations is about what associations can't do, in fact. What I took from an uneducated reading is that rules for services are more permissive than associations: there are no PMOALA exceptions for sex discrimination for assocations as there are for services. Among all the PC's, the only ones on the basis of which associations can discriminate amongst their members are age (younger or older members can pay less, for example) and pregnancy (to reduce the risk to a pregnant member's health and safety). These are listed in Schedule 16 if anyone is interested.

This makes sense not from the point of view that people have signed up for it but to stop a golf club (for example) not allowing women on the course at certain times of day etc., or not to enter the member's dining room without a male escort. That is all unlawful.

So I think it's the other way around: associations can choose selected PC's to allow in, but once you're in you're in for everything.

I nearly - very nearly - wrote in a comment about "you are welcome to imagine the Germanic accent as you read this", but I didn't want to stereotype!

So they can't, in fact, set it up, as I think was suggested, so that the pools are all for people of the genderist religion, and then the Ladies' pool is for those members with gender identity "woman" - because that would be indirect sex discrimination against men, because a (biological, per SC) man would be more likely to be excluded from the Ladies' by this rule than a (biological) woman would be?

I don’t think it’s considered religious discrimination to provide a service that someone of a particular religion would refuse, providing you aren’t refusing to allow them to use it. Otherwise nowhere would be allowed to provide only mixed sex swimming, but that is what many pools provide - both private and council run.

In the theory, I think you could, but it would depend on the concept of gender identity being so vague and detached from sex that the ponds would just effectively become mixed sex, which is not what the CoL wants.

Again I don’t understand why they didn’t raise the issue of the Orthodox Jew and other religious women who wouldn’t have a pond to use if they were all mixed sex.

When you take something to judicial review, you are not allowed to argue on behalf of random other people. You must have standing; you must be directly affected by the decision you are arguing against. So unless they have an Orthodox Jew or other religious women as part of the group bringing the case they cannot argue on this point.

I don't think I understand the religious Jew point at all. You can't object to mixed-sex swimming just because observant Jewish people won't use it.

Indirect discrimination.

Indirect discrimination is lawful if a proportionate means to achieve a legitimate aim. It's clearly a legitimate aim to have mixed sex swimming. Otherwise every swimming pool in the country would be living in constant fear of lawsuits from religious Jews demanding an immediate end to mixed swimming because they were being discrminated against.

Except that’s not correct as the mixed sex pond isn’t open to the public in the winter.

Because they only care about race/religious discrimination when it suits. They go on about being "inclusive" but that only matters when it includes certain people.

And men in dresses are apparently more welcome than women in headscarves (for example).