Trick to sidestep equality law?

[Gerri1992]

Just saw this on x. This wouldn't work right? It would obviously just be an attempt to break equality law.

I mthink she’s saying they should be able to - fair enough, an expression of opinion - and that they lawfully can. With a bit of wriggling because the act isn’t well drafted. I think they can’t lawfully, and the Act is tight.

Just don’t advertise an association as a women’s group when it includes men

In a nutshell.

This isn't about who gets to associate with whom, it's entirely about 'can we put some selected males in a female space while everyone pretends it's still a female single sex space?'

The SCJ was clear. No. You can't.

Mostly in fact because the absolute lack of generosity and tolerance of the transactivist political movement that wants this in fact to mean that NO single sex women and girls' space could say no to any male who wished to identify in there. Women's refuges run by men who make care of shocked and traumatised women dependent on pretending for him. Women being strip searched by a man requiring her to pretend he isn't a man. And many other abhorrent behaviours.

It is a desire to prevent sex based single sex provision at all for men to have all access passes to use women and their spaces. If they hadn't been so utterly intolerant and uncaring about women and girls, and hadn't behaved so very badly, things probably could have muddled on in a relaxed way. But they destruction tested it until women fought it through the courts, and the SCJ intervened. To protect women and girls, the answer is 'no'. And also, 'fuck off'.

An association for willies and nillies, obviously!

:D

This.
Especially the "fuck off" bit.

This is the first time these men have been told no and the narcisstic rage can be seen from outer space.

No need to anxiously pretzel ourselves to address their flailing arguments. Stand firm. The Supreme Court has spoken. Women are taking our stuff back.
While we have to tediously watch so many groups / resources for women and girls being trashed - if we stay strong and in some cases have to replace what women originally built - enraging as it is, we'll get there.

Not necessarily. Take, for example, an association that purports to admit anyone who "lives as a woman".

A membership criterion that appears on its face to be fair and neutral may not be so. As was noted by Baroness Hale DPSC in R(Coll) v Secretary of State for Justice [2017] UKSC 40 at [32], [2017] 1 WLR 2093:

“...The question of comparing like with like must always be treated with great care - men and women are different from one another in many ways, but that does not mean that the relevant circumstances cannot be the same for the purpose of deciding whether one has been treated less favourably than the other.”

Also, in Chief Inspector of Education v Al-Hijrah School [2017] EWCA Civ 1426, [2018] 1 WLR 1471, the Court of Appeal considered whether rules in a mixed school by which the pupils were neutrally segregated by sex was direct sex discrimination. Holding that it was, the Court explained that direct discrimination falls to be considered by reference to the position of individual Equality Act 2010 rights holders (in that case, the girls viewed individually, and the boys viewed individually). At [50], Sir Terence Etherton MR and Beatson LJ explained that:

“...The starting point is that EA 2010 s.13 specifies what is direct discrimination by reference to a "person". There is no reference to "group" discrimination or comparison. Each girl pupil and each boy pupil is entitled to freedom from direct discrimination looking at the matter from her or his individual perspective.”

These two cases illustrate that neutral rules do not preclude their treating one sex less favourably than the other and that will be direct discrimination.

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A membership criterion of something like “live as women” 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.

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However, it might well be theoretically possible to come up with a definition that doesn't cause an extra burden on one sex compared to the other.

In that situation it may be that Article 11, Human Rights Act 1998 comes into play. This is the one about freedom of association. Although that has never been tested in court.

They wouldn't. It would be open to everyone on the assumption that anyone who wants to join must be a PinkFluff (or whatever they use as their mixed sex "girl" equivalent) not a BlueTuff, because BlueTuffs won't want to join.

And to be fair, if PinkFluffClub no longer means private female spaces, they are probably right in assuming BlueTuffs won't be that interested.

Kind of like a goth night. They assume mostly only goths will bother but don't ban other people unless they cause trouble.

If gender is really so important, then properly aligning the purpose and with the Gender Identity it is there to serve instead of trying to smoosh GI and sex together makes the whole project much much easier. It's a wonder they didn't do this from the start (well, it is a wonder if you take TRAs at face value when they talk about gender and supporting trans people)

Could they do that and use girl as their descriptor? I worry it's going to be used as a way to setup things that look like single-sex groups, with careful language and small print saying that they are single-gender groups in such a way that average person can't tell the difference.

So to be clear you think a “girls + trans-identifying boys” club would be ok if it was advertised as such?

Many people here (including me) think that wouldn’t and shouldn’t be ok regardless of what it’s called or who consents.

i think the SC went further than you do. I think the SC said that regardless of what it’s called, a “space” for any girls and only some boys is unlawful.

But there is no law that says that women and trans women cannot mix, the law and the equalities act says that men and women are allowed single sex provision.

But If the trans lobby were to win over the girl guides its charity charter would be incorrect and would have to be re aquired as it would be wrong as its for single sex provision, and they wouldn't be able to get such a good deal out of the charities commision.

Lets not forget that all the trans lobby and their supporters need to do is start their own group, but it isn't and has (IMO) never been about the group.

edit - it would also be interesting to see how they would deal with the safeguarding issues of a group where boys are girls, girls are boys and boys are boys and girls are girls.

What the law says is that associations are either entirely single (biological) sex or fully mixed sex, with no half measures.

I think the concerns in this thread shared by Akua Reindorf and some in this thread about what a group is called of how it’s advertised are misplaced. I don’t think the title of a group was something relevant to the implications of the SC’s findings in FWS.

I agree with you. However, I remember reading a couple of tweets from Akua Reindorf KC a few days ago suggesting that it may be theoretically possible.

She said (in one of a series of tweets):

6 Associations are different. No-one wants to stop anyone associating with anyone. If women want to associate with transwomen they can (with a bit of legal wriggling – the Act is badly drafted here). Just don’t advertise an association as a women’s group when it includes men /END

She was then asked:

Seems like it just needs the groups to be honest so that women joining what is badged as a womens’ group, actually has no men in it. Not difficult. So instead of Womens’ Institute (for example), they’d call it the Peoples’ Institute.

To which she replied:

Yes. On the face of the Act it looks like you can't have a group of mixed PCs - eg women + TW. That's obvs unfair & contrary to the right to freedom of association, so you have to fiddle about with the Act to get it to fit. Once you do it's fine, as long as you're clear about it.

Which is very different from her position on the matter a year ago.

Then someone asked her:

By “fiddle about with the Act” are you suggesting there should be legislation to modify the Act or are you suggesting carefully working within its current confines?

Her reply was:

IMO the Act can probably be construed to give effect to the Art 11 right to Freedom of Association, but it's not yet been tested in court & it might not work. Ideally the Act would be amended, but I'd be wary of opening up the Act in case it opens the door to less welcome changes

But then somebody replied with the point that I would have made:

But restricting access to any group requires a proportionate means of achieving a legitimate aim. To mix woman and trans women but exclude men (and trans men?) would need a legitimate aim. Not sure what that group has in common that would meet that target.

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So, things do seem a bit up in the air at the moment.

https://x.com/akuareindorf/status/2044875369849786516?s=20

AR said: “On the face of the Act it looks like you can't have a group of mixed PCs - eg women + TW. That's obvs unfair & contrary to the right to freedom of association”

Article 11 - the right to freedom of association is a qualified right not an absolute one. I don’t think it’s unfair - obviously or otherwise - to stop an organization excluding one group of boys but admitting another, while admitting all girls.

I see that “legitimate aim” gets another outing but I don’t think it’s relevant here, or even in half the cases where it is cited. Single PC associations are lawful for any aim and even for no aim at all, just for “because.”

Sorry, I didn't RTFT before I posted and missed your post.

"I think she is saying that two (or more) separate PCs should be able to associate."

No, she said last year that everybody must have each of the PCs. So, for example, you could have a club for lesbian, disabled, retired women.

That would be fine as long as everybody in the club was lesbian AND disabled AND retired.

But you couldn't have a club where there was no overlap between the PCs. It is not possible to be both a woman and a trans-identifying man.

What she seems to be suggesting now is that there may be some conflict between the Human Rights Act and the Equality Act.

Although, as she says, this has never been tested in court so it is just a theory at the moment.

I agree that the law is clear in this, but once we have people saying that you can have "wriggle room" and that it doesn't matter how something is adverttised, you open up a huge can of worms, with reguard to safeguarding etc.

I'm very surprised that she seems now to be saying that the law is badly drafted and either does or should allow some wiggle room.

I'm not impressed by Article 11 freedom of association rights being thrown at this. Nobody would defend the "freedom of association" of white people to make sure they associate only with other white people by excluding black people from their club.

I agree with PP that it would be hard to come up with a charitable objective for a group which is women and trans-identified males, such as a re-branded WI. However, associations don't have to be charities.

I'm not sure where I said that?

It's about legal exclusion.

As far as I know - IANAL - there would seem to be nothing to stop people setting up any groups they like, what they will not be able to do is use the Equality Act to lawfully exclude anyone who wanted to join whether they fitted the brief or not. So you could have a women's and TiMs group - let's be honest, in that case it would just be another transactivist political group - but they would be very unlikely to be able to legally exclude any other men if those men chose to push it. You would be reliant I'd think on whether someone wanted to push it legally for that particular group. And really, why bother? If transactivists want transactivists groups, go for it.

The point is women and girls being able to invoke the legal exclusions to be permitted a space, group or resource that cannot be invaded and wrecked by transactivism and males forcing entry in search of validation, and again let's be honest based on years of this being destruction tested, control. To legally be able to say no and have things just for women and girls on a sexed basis. The same goes for lesbian and gay people; the right to exclude on the basis of sex to be able to have groups without being invaded and harassed.

It's what I took from this that you wrote earlier.

"Just don’t advertise an association as a women’s group when it includes men"

In a nutshell.

This isn't about who gets to associate with whom, it's entirely about 'can we put some selected males in a female space while everyone pretends it's still a female single sex space?'

If the problem - in a nutshell - is about the advertising, and "it's not about who associates with whom" - then one might take from that that a properly advertised group is no problem and that there should be no restrictions on who associates with whom and therefore a girls+trans-identifying-boys group is fine.

I thought that was an unusual take, hence my question.

I would say that the the advertising is irrelevant - it's the men in a women's group that is the problem, not what the group is called or how it's advertised. And that It's entirely about who gets to associate with whom. Girls + trans-identifying-boys is not a grouping that is permitted to associate.

But I may have misunderstood you.

I think we cross posted.

We did. I'm still not clearer on what you think is ok and what isn't, though.

You wrote:

As far as I know - IANAL - there would seem to be nothing to stop people setting up any groups they like,

the EA2010 does exactly the job of stopping people setting up any groups they like..

...what they will not be able to do is use the Equality Act to lawfully exclude anyone who wanted to join whether they fitted the brief or not.

If they can't lawfully exclude anyone they want then it's not "a group they like". It can't be a group of their choosing if they're not allowed to exclude the people they want.

So you could have a women's and TiMs group - let's be honest, in that case it would just be another transactivist political group - but they would be very unlikely to be able to legally exclude any other men if those men chose to push it.

Right, that's the point. If they can't legally exclude any other men then it ceases to be a women's and TiMs group.

You would be reliant I'd think on whether someone wanted to push it legally for that particular group.

And really, why bother? If transactivists want transactivists groups, go for it.

I disagree. It's very important to enforce that there are no "women's + trans-identifying men" groups. Not a single one, and not ever. Not even if every woman and girl wants there to be one. Because each such group discriminates unlawfully against the other men. Unlawful discrimination doesn't become lawful just because everyone votes in favour of it.

To put the point another way: We must start from the position that separating men from women is a Bad Thing (tm) and to be tolerated only in exceptional circumstances. This stems from a time when women were historically excluded from all sorts of men-only opportunities and places. But one way discrimination against one sex of the other becomes OK is a single-sex association. That's not a defect in the law (as AR seems to think) - it's a feature.

I think the poster who likened it to a goth night gets it right.

You can have a pink fluffy club for people who like pink fluffy things, but you can't stop men who like pink fluffy things from joining just because "pink fluffy" was your secret code for women and transwomen.

You can hope/assume that not many non-trans identifying men would be interested in it, but you can't specifically exclude them.

My feeling is that this would likely not be affirming enough for the sort of man who wants to join the Guides/WI so they wouldn't be interested, which is where the gender argument falls flat.

They want to be places that they're only allowed to be in because they're laydeez like all the other laydeez. A gay man who likes jam and Jerusalem ruins that.

I suppose we'll see.

@OpheliaWitchoftheWoods I'm still curious though. Would you be ok with a mixed "women+trans-identifying-men" group if it was accurately described and advertised and all the members were in favour of the arrangement? Do you think that should be permitted in law?