GLP v EHRC judgement is coming tomorrow

[DownhillTeaTray]

Listing in the Administrative Court for tomorrow not before 11am: read out of the judgment in our challenge to the EHRC Interim Guidance.

https://bsky.app/profile/goodlawproject.org/post/3meo6ow7ow22k

You can discriminate on any of the 9 PCs but Schedule 16 of EA2010 forbids discriminating in relation to colour e.g you can have a club for South Africans but not a club for white South Africans.

Yes. Also madey uppy. Not a shred of objectivity anywhere 😎

I don't follow your argument.

The sex based exemptions apply specifically to sex.

Nationality is madey puppy?

Yes, race is but not 'white'.

Apart from rapidly losing the strength to engage in ‘what if’ scenarios, I will answer this. Because of the clarity of FWS and the HSE I think you can not have a toilet that is used by both sexes and maintains the safer single sex design in cubicles in a single sex environment with washbasins.

From Document T:

Cubicle: A ventilated compartment, not self-
contained, usually formed by the assembly of
partition panels and located within a room.

Universal toilet: Toilet facilities provided in a fully enclosed room which contains a water-closet and washbasin and hand-drying facilities, and is intended for individual use by persons of either sex.

Single-sex toilet: Toilet facilities intended for the exclusive use of persons of the same sex, and with washbasins and hand-drying facilities in either the toilet room or cubicle, or in a separate area intended for use only by persons of that sex.

It can be seen in Document T for England, that cubicles are not rooms and that single sex toilet cubicles must be in a single sex environment.

eg. 1.22 The layout when entering, exiting and using a toilet room or cubicle should cater for the safety, privacy and dignity of users. Cubicle doors should only open into single-sex toilet accommodation.

The HSE have said to me directly in relation to Document T when I have had discussions with them over the years. There is also another Document M that is clear about single sex toilets within single sex washrooms for accessibility. For Scotland, Wales and Northern Ireland you need to look at their regulations. All of them mention women and men in different varieties of non domestic provision. Doc T and Doc M are England’s Approved Documents providing guidance on ways to meet the building regulations which is under Ministry of Housing, Communities & Local Government so they will be looking at this as well. They’ll be aware of all the weird and wacky designs as they tried to rein it in with Document T. Document T is based on Building Standards BS6465 which cost a fortune to own. Recently owners of buildings have been doing their own thing often in the name of ‘inclusivity’ and not referring to British Standards. If they had, they would have such a problem now.

When I discussed the legalities of the situation with regards to toilet design, the HSE referred me to the Ministry of Housing, Communities & Local Government.

The only real design test so far was the (non-service) Kelly tribunal case which (unbelievably and bizarrely) was lost. I was glad to see the judge in this GLP case looked at the Kelly case and came to the same conclusion as me and common sense - the verdict was wrong on the workplace regs.

When I was discussing unsafe school toilets with the DfE, which don’t fall under 1992 legislation, they told me they do fall under 1974 legislation. Now this one talks about keeping everyone safe (visitors etc).

The GLP judge also made a distinction between a room and a cubicle. This is something that is relevant and was also relevant in the British Standards at the time of 1992 legislation. I have the relevant section here from BS6465 from 1984:
“WC compartments should be self contained, but where a range of WCs is provided, each in a separate cubicle within a single room, e.g. in schools, offices, factories, public buildings and public conveniences, it simplifies ventilation, cleaning and, to some extent, supervision and prevention of wilful misuse, if the cubicle walls terminate above the floor as well as below the ceiling. These advantages are gained only at the expense of a certain degree of privacy. Where cubicles are used, the whole room in which they are situated may be regarded as a single unit for the purposes of ventilation.
Where partition walls and doors of WC cubicles are kept clear of the floor, the clearance should be not less than 100 mm and not more than 150 mm. Partitions and doors that terminate below ceiling level should be not less than 2 m in height from the floor.”

Sorry if that’s a bit jumbled and long. I am really so weary about all of this.

Well you define it. Given that half of the UK can't agree on a definition it's quote an ask.

Anyway my point such as it is, is that the EA and related legislation don't help us by including subjective qualities like "race" alongside totally objective criteria like "sex". So this discussion - philosophically and practically - has no single conclusion.

The fundamental reality - unpalatable to some - is that we start as "human" - because that has a objective test. Then move to "male/female" (same again). Then age (same again). After that it all gets a bit woo and you have an intersection of social and cultural mores to weave your laws from.

It's (presently) correct to say that "gender" is not a protected characteristic. However it would be incorrect to think that was because it's any less artificial than race.

But I digress, and it's too nice a day to waste. So laters 👋

@Keeptoiletssafe Sorry if that’s a bit jumbled and long. I am really so weary about all of this.

No, that is helpful and I will save it so I don't need to ask again! Many thanks

All-women is legal. All women and some men is unlawful if a man can successfully argue that it disadvantages him.

So to be more accurate, “all women” gets a free pass from being unlawful discrimination against men, whereas “all women and some men” doesn’t. But as the judge would say it will all hinge on the facts of the case in question.

You may feel it’s very hard to conceive of a case where “all women and some men” doesn’t disadvantage some men. I couldn’t possibly comment.

I don't know about you, but my British nationality is an objective fact.

Do you not think there should be laws that define unlawful discrimination on the grounds of race or religion or belief?

Exactly. If it says women on the door then it should be for biological women. They can have one for any other group they like as long as there is one for biological women and NO ONE ELSE. I really don't know why some people find those last three little words so hard. If they want to be validated as women by other women and other women want to do it then that's fine. Only deep down inside, when the 'kindness' and inclusivity brigade realise that they aren't the majority, I strongly suspect that most women don't want to be used to validate someone's sense of self and that's why they're not being asked beforehand.

Nationality is made up. (It is a legal term. You can change nationality. Nobody says "Oh look, it's a French baby! when a baby is born.)

Sex isn't made up. You can't change it.

Yes.
The question would be has the GRA to be amended to allow mandate disclosure for a lawful reason and if the law(s) in the various safeguarding areas should clear to oblige the subject to be truthful in area of sex and the person/organisation be allowed factor that into safeguarding on the basis of sex not gender ID.

This had all ready be done (and now undone) by the police when a TIM officer won the right to the "woman police" policy (uniform skirt/hat etc) and an exemption from searching females not being a barrier to his promotion.

The problem is that the GRA fails when it comes up against other peoples right to informed consent when the GRC holder is in a position of trust.

It is an intangible legal concept, but it is still objective.

I can't just decide that I'm French because I like croissants.

How about
Men
Women
Disabled (And I mean disabled.)
Everyone else

That's only one more than at the moment.

The rules on associations are a bit more complicated.

directly to exclude anybody, no PC’s may be involved, except if it’s a single or multiple PC association (such as Norwegians club or Jewish women’s club)

you can’t have a club for everyone that has different entry hours for Norwegians or Jewish women.

think about the EA in layers:

Discrimination is, in general, legal on any ground.
Except where it involves a protected characteristic
Except where the EA makes an exception to permit discrimination on a protected ground.

I've just read the entire GLPvEHRC judgement.

There's a lot in there, and overall I'd say that when the judge was judging, it was helpful to the GC position, but when he was expressing opinions, it was less so, e.g. the infamous para about the possibility of making a case for toilets labelled 'Women' being used by transwomen as well as biological women, and his advice to 'be guided by common sense and benevolence rather than allow themselves to be blinkered by unyielding ideologies '

One of the important things I retained from my reading was that the judge signalled in several places that the separation of the sexes in circumstances like toilets, changing rooms, etc is accepted without question:

The obvious albeit unspoken premise of regulation 20 is the provision of private space for each sex for reasons of conventional decency. [35]
The court should have regard to the particular difficulties which arise with respect to toilet facilities, the obligation and the need for separate facilities for men and women, [48]
quotes Workplace 92 they will not be suitable “unless they include separate facilities for, or separate use of facilities by men and women where necessary for reasons of propriety”. [28]

That seems to be to be a useful baseline: sex segregation is accepted for reasons of 'conventional decency' and 'propriety'.

Does that mean that women taking legal cases should not have argue with chapter and verse that having to share with a member of the opposite sex is personally objectionable to them as an individual, because it is already accepted that not separating men and women in this context goes against the accepted 'a need' 'conventional decency' and 'necessary for reasons of propriety'?

But IANAL and I'm sure I'll be told if I'm interpreting it wrongly - it seems too obvious:
'The changing room in my workplace is labelled 'women's'. There was a male in it. Although a transgender male, still a man acc to the Supreme Court. This contravened the accepted need for separate facilities for men and women for reasons of conventional decency and propriety. Duh!'

See? too easy, isn't it? I must be getting something wrong😁

No. But you can decide to be French, by changing your nationality.

lol it’s not me at my best!

There’s also this when certain people go on about Article 8 as a gotcha. This is me being very literal about a door gap!

Regarding Article 8. This is what is says on the website https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life

Restrictions to the right to respect for your private and family life
There are situations when public authorities can interfere with your right to respect for private and family life, home and correspondence. This is only allowed where the authority can show that its action is lawful, necessary and proportionate in order to:
protect national security
protect public safety
protect the economy
protect health or morals
prevent disorder or crime, or
protect the rights and freedoms of other people.
Action is ‘proportionate’ when it is appropriate and no more than necessary to address the problem concerned.

Now look at this graphic. It is clear that privacy is greater on the right. It is clear that the single sex cubicle design on the left is a proportionate means to protect public safety. That gap is also a known and documented way to prevent disorder or crime because no perpetrator wants witnesses (drug use, sex). These designs are better ventilated, and easier to clean so are proven to contain less pathogens. They help people with invisible disabilities and the frail be safer so protects their freedom and rights to work and enjoyment. I would even say there’s been a few national security incidents with toilets too - politicians are less likely to be filmed getting up to naughty things when they think people could see them. The resulting blackmail is a threat. The designs are more economic and easily to maintain and fire brigade-friendly too.

It’s a perfect example of why single sex toilet design is lawful, necessary and proportionate.

We are all, I think, at risk of overlooking the wider point.

the judge said the guidance was fine. The new guidance can be exactly the same and still be fine.

there is never going to be certainty on toilets from general guidance. There can only be certainty on toilets from case law on toilets. This case didn't have any toilet facts, only principles. Discrimination always hinges on facts.

The judge was asked to rule that the guidance was wrong. He said it’s not wrong. That means any guidance that makes the same points is now watertight.

Thats it.

When their name is Graham Linehan. That's what justice is like now.

I've been thinking about that recently - I lived in France, speak French like a native [of France, so no wisecracks😄], et patati et patata....

I could apply for and get French citizenship, a French passport, the works.
I would then be 100% a French citizen, but not a Frenchwoman - I didn't go to school in a maternelle or a lycée, I didn't watch Les Shadoks, I didn't learn to read with Babar books, I didn't have le goûter when I came home from school...
I would be legally French, an avid Francophile, but never simply and totally French.
I'd think I'd be a transFrenchwoman

No, I can't. There are specific criterial that I may never meet.

Money is a social construct, but it has value because we trust banks and agree on concepts like interest and exchange rates.

The fact that something is not tangible does not mean that it does not have substance.

On the other hand, gender is a completely subjective concept only ever defined in a circular or sexist way, if at all. The problem is not that it is 'madey uppy' but that it is meaningless.

I think many of us are just interested in the points of law discussed and are grateful for the explanations from more knowledgable posters!

However, it is concerning that MPs are deliberately lying about the judgement.

Stripey long socks is a TIM cliche, isn’t it? 😂