"Except they are being treated differently than men who say they are women. in So as far as the comparison goes they are being discriminated against, are they not?"
There is quite a long answer to this question but, in summary, it is ok for people to be treated differently as long as nobody is treated "less favourably". Different treatment doesn't necessarily imply discrimination.
But sometimes it can be difficult to work out whether discrimination has taken place or not.
The judge cited three cases that seem to be the leading cases in this area (I've seen them cited in other cases as well).
In one of them, Smith v Safeway, the company had dress standards of short hair for men, but women were allowed long hair. A male employee with a ponytail was sacked and he then brought a sex discrimination claim.
The Court of Appeal dismissed the claim saying that a dress code that required both sexes to have different, but equally conventional, standards did not treat either sex less favourably.
The court also noted that a standard that was the same for men and women could actually treat one sex less favourably. Imagine if the dress code was that every employee of Tesco had to wear lipstick. Although men and women would be treated equally this would be treating men less favourably as it is not conventional for men to wear lipstick.
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"Is the judge is saying that should TIMs enter women's spaces, men will not be disadvantaged, but that doesn't mean they can enter, because women might be disadvantaged?"
Correct - sort of. The judge doesn't say that TiM cannot enter women's toilets if a service provider has a "trans-inclusive" toilet.
What he does say is that if TiM are allowed to use the women's toilets then it becomes a mixed-sex toilet (para [53])
He also says (at [52]) that the absence of single-sex female toilets could amount to indirect discrimination. Whether such a claim would be succesful would be:
"... fact-dependent, for example on how the matters referred to at section 19(1)(b) (disadvantage), and (d) (proportionality) fell to be assessed."
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"And also, I thought this had already been dealt with!! That yes, women are disadvantaged, so it's a non-starter."
Not necessarily, don't forget Kelly v Leonardo employment tribunal case from last year. Although, having said that, the judge also briefly cited Kelly in the judgment (at [41]) and said he preferred his own thoughts on the Workplace Regs:
[41] "This was a claim under the EA 2010 but in the course of its reasoning the Tribunal had cause to consider the meaning and effect of regulation 20 of the 1992 Workplace Regulations. I have considered the relevant part of the Tribunal’s reasons (paragraphs 207 – 245) but none of the points set out there cause me to doubt any of the conclusions above or the meaning and effect of regulation 20."
As I think somebody said near the start of the thread, quoting WInston Churchill, - It is not the beginning of the end. But it is perhaps the end of the beginning.