Separate EHRC Guidance?

[Brainworm]

Is the solution to the delay approving the EHRC guidance on single sex provision disaggregating sex and the gender reassignment guidance?

My understanding is that the delay is due to concerns about (i) the the cost to employers for making reasonable adjustments for those with the PC of gender reassignment (ii) the acceptability of alternatives to those with the PC of GR. They can’t determine cost until they determine what provision is preferred and affordable.

In light of the Darlington case and the requirement for employers and providers to uphold the law irrespective of the issuing of guidance, should the government ask the EHRC to amend the guidance so it applies to sex based provision only and to develop separate guidance relating to the PC of GR? This way, they can undertake proper GR specific consultation and impact assessments within the context of it not being an option to access provision that is ‘in line with your gender identity’ and not your sex. This work has never been undertaken. I think it will be dominated by TRAs and trans charities/ advocates refusing to engage, stating no alternatives are acceptable. Some on the GC will state no adjustments that bring a financial burden are reasonable because everyone should use provision in line with their sex. However, I would hope that the silent majority of those impacted by the clarity around single sex provision will have a chance to have their voices heard and solutions can be implemented that work well for them and are affordable to employers and providers.

I expect Labour would not accept the optics of releasing guidance that addresses the issue for women in advance of guidance that addresses the issue for transwomen. I say ‘optics’ because they know the law already clarifies the issue for women. I expect they also know that any lawful guidance relating to transwomen will not be acceptable to the trans lobby.

So, with all the above in mind, is there mileage in putting pressure on the government to disaggregate the guidance? I’m pretty sure that there isn’t any other guidance that targets just two of the PCs. The other guidance is protected characteristic specific or inclusive of all protected characteristics. The guidance is about single sex provision and should focus on protections on the basis of sex.

Arguably, there is need for guidance relating to the PC of GR that extends beyond accessing loos, changing rooms etc to include requirements around pronouns etc. Employers in particular need to know the law around a range of issue that are causing tension.

I am not surprised by the lack of demand from TRAs for the government/ EHRC to produce guidance relating to the PC of GR because I don’t think they’ll like what the law says!

That is the issue. Your proportionate is of no interest or influence to decision makers.

It's lucky then that the decision makers' "proportionate" is of no interest to the judiciary then!

But the problem is, as the swamping of reality by Stonewall that some individuals have more rights than others, means that employers or service providers listen to them. TRAs not women.

In real life women more often than not opt out. Dont contest.

So as BP is making it about cost, a company or service provider can say it is not proportionate to cater to a few of this out of touch terfs and provide women only services or whatever.

In your mind proportionate includes upholding women's rights. In the world at large, upholding women's rights doesn't even enter as a thought let alone whether it is proportionate.

And ever since Labour curtailed the sex based rights of women, society as a whole no longer has the older pre trans reality of the instinctivie women should have separate provision.

This is the world we live in now. Women as a sex class are just a nuisance.

That's why I said on one level make people aware of the employers obligations towards women only services, toilets etc.. Many were written before identity politics took hold.

No point all of us on FWR going on and on about how it is obvious that women should have sex segregated services and be outraged that it isn't happening, when most of the posts on FWR are about how the world at large couldn't care about this.

If they did BP would have been sacked by now.

If they did providers would be rushing to ensure women's privacy and safety, but they aren't.

That is the issue. Your proportionate is of no interest or influence to decision makers.

Its nice to com on FWR and find others who think (more often than not) with women's sex based rights.

Unfortunately FWR is not the first port of call for decision makers who out in the real world have TRAs whispering in their ears.

So women might say they want single sex toilets, but others might say is this a proportionate demand. Not all women would say it is.

You are misunderstanding, I think. The "proportionate" element of the test for a single sex service to be lawful isn't met by plebiscite of women. Its a factual test ultimately ruled on by the court. Proportionate means that the disadvantage to men isn't disproportionate - vastly greater - than the advantage to women. It may be that not even a single woman wants a service to be single sex - it can still be provided if the court rules the inherent discrimination involved is a "proportionate means to a legitimate aim".

To this extent the EHRC stands in the shoes of the most extreme woman imaginable, the one to whom the EA2010 has given the right to complain, even where no other woman does. The guidance says to employers "if you want to be watertight against getting sued, this is what you have to do."

You aren't dealing with the reality. Irrespective of a wider looser idea of what is gender re-assignment, the vast majority of people claiming they are entitled as men to enter women's spaces have not idea about that narrow definition. Neither do employers, or they do or ae to scared.

Additionally even if the Supreme Court ruling has said sex in the EA means biology that doesn't help in relation to who can claim or even demand that something is single sex. In the EA it is said to be where proportionate.

So women might say they want single sex toilets, but others might say is this a proportionate demand. Not all women would say it is.

That's why I referenced existing work place law that does for instance talk about toilet provision in relation to number of male and female employs.

Even if most of us on FWR might agree with what you think it should be, you / we have to get everybody, not just politicians to agree with us.

And how ever many individual court cases that might be said to advance a shared cause, out in the real world that just isn't true.

After all many of us would say it is proportionate, and even said to be an aim, that the NHS provides single sex care in hospitals but we know this doesn't always happen.

Proportionate to women's feelings or proportionate to cost to providers?

Sadly this is not a top issue for most people.

My understanding is that anyone who has decided to ‘transition’, regardless of the stage they are in has the protected characteristic of GR, they don’t have to have a GRC.

My understand is that as it is a protected characteristic organisations have a legal duty to ensure they aren’t disadvantaged compared to others.

The law has been clarified - males cannot use female only provision but the law also requires something (that isn’t clear) to ensure those with the PC of GR to be afforded dignity and respect.

I don’t consider it my concern as to what that is. I certainly don’t think it is something this board needs to spend time on. My point is that this is what is, according to the government, holding up the publication of the guidance. The guidance aims to cover both protected characteristics - unlike any other guidance published by the EHRC. I think they should publish it with regard to sex only and follow up with the GR guidance when it’s ready.

The guidance is guidance on how to follow the law; the government doesn't have any levers to pull to adjust the guidance, but if it thinks the law is too expensive for organizations to follow it should change the law.

It's cakeism of the highest order to suggest to the EHRC and to the public that the cost of following the guidance means the guidance is wrong or should be changed.

The government can accept the guidance, or if it thinks the guidance doesn't meet the statutory requirement that guidance needs to meet - for example, it doesn't correctly interpret the law - then it can send it back. It doesn't get to choose how it should be changed.

But all of this is blurred by the fact that the vast majority of those demanding access to women's facilities aren't even coverd by the catigory gender re-assignment. (around 10,000 in total in the UK).

Most are those who fell for and now wont given up the Stonewall Law of self identity.

Added to which many of the situations such as toilets are covered by work place laws.

As a first step the Government should, but obviously wont, clarify that under the EA the protected characteristic is gender re-assignment, not gender identity. And that the EA already has provision under the SSE that where proportionate single sex facilities are allowed. And ask companies to explain to their female workforce why they are their employer dont think it proportionate for women to have single sex facilities?

And also publicise which of the current workplace laws these companies should be looking at.

And also having clear signage on which every facility or service as to whether they are offering trans inclusive or single sex as per the EA.

This is all about the TRAs having the upper hand in terms of who organisations are most worried about. And it certainly isn't women.

I suspect the number of establishments negatively effected is vanishingly small. All of those trans identified men who make a big show of how they use women's faciities are in the minority, I imagine. It is all just provocative showboating.
I imagine most trans identified people already use a unisex or 'third' facility.

I’ve got a feeling that if all those issues were sorted they would find some others, like the wrong type of leaves on the track preventing implementation, or there’s not an R in the month or something.

Maybe when all the planets have aligned, the runes and tea leaves have given the secret code word and the gods have signalled their favour in some way, we might get it approved. One day…

Agreed.
Women and child safeguarding have been wholesale trashed by the trans lobby from their initial #NODEBATE, the bullying, attacks, trying to get women sacked along with the open undermining of the social contract and every aspect of women's lives and organisations.
Now they're crying "victim " as the consequences of their bullying, overreach and lying about the law comes home to roost.

The damage they've inflicted on the vulnerable in society is immense and it's time to stop pandering to them.

This is the consequence of their choices. Time to grow up.

I don’t think it’s a matter of sympathy but a matter of law - or both if you are so inlined.

Gender reassignment is a protected characteristic and employers have had policies stating those with this characteristic can access opposite sex facilities. The new guidance will state that this is not legal and so alternative adjustments are needed. One alternative is to use provision in line with their sex. An impact assessment is needed to explore whether this will result in unfair or discriminatory practice specifically in relation to the protected characteristic. Other alternatives need to be considered also alongside their impacts - including cost.

Whether you agree or disagree that this should happen - the law requires it. The government are trying to hold off publishing the guidance until the alternatives have been explored and impact assessments done. I think they want organisations to hold off on applying the law because this leaves a gap regarding what to do about those with the PC of GR.

I think organisations requiring those with the PC of GR to use provision in line with their sex are exposed to a discrimination claim that could succeed. They are also likely to lose a discrimination claim if they permit males to use female only provision. They do need guidance, the guidance relating to sex is clear, the guidance relating to GC isn’t and needs work. They could release the guidance re the PC sex now and follow on with the remaining later. This still leaves organisations in a difficult place

My understanding is that the delay is due to concerns about (i) the the cost to employers for making reasonable adjustments for those with the PC of gender reassignment (ii) the acceptability of alternatives to those with the PC of GR. They can’t determine cost until they determine what provision is preferred and affordable.

I don't understand how there is any cost implication, frankly. Men in the men's, women in the women's. Unisex facilities optional. Any place that converted to unisex-only in the rush to appease the genderists, did they consider the cost and hold off because of that? Obviously not. So they can suck up some more cost and convert back.

Likewise for "acceptability of alternatives" - did these employers consider acceptability to women of letting men in women's facilities? No, no, and no again. So why should we be pandering to the trans lobby now?

Any sympathy I may once have had for either the employers or the genderists ran out long ago.

By refusing to allow EHRC guidance to be approved Labour is making Reform's case fore them. If you don't agree with the EA 2010 but refuse to amend it why should it exist at all? If you receive statuary guidance from the EHRC but refuse to allow it to come into effect, why should the EHRC exist at all? If the Supreme Court makes an explicit, and remarkably clear ruling on the interpretation of the EA 2010 but you disagree and refuse to follow it, why should the Supreme Court exists at all? If you're a party whose whole point has been to build these administrative structures, why should voters ever vote for you again?

Other issues like immigration and economic performance have more popular salience, but Labour is bankrupting its intellectual core over this issue. At this point Labour is self-refuting. As a project it's whole point has been to create modern, politically insulated institutions that can generate and administer the gigantic amount of administrative law needed by a modern, rights based state.