Girls clubs can re-admit trans-identifying boys now (title edited my MNHQ at request of OP)

[MyAmpleSheep]

According to the new EHRC code, the Girl Guides can go back to being girls plus tran-identifying boys. See para. 12.74 and 12.75, and example 12.77.

12.74 Section 6(c) of the Interpretation Act 1978 states that, in any act, words in the singular include the plural and words in the plural include the singular, unless the contrary intention appears. Applying this provision, the Equality Act 2010 (the Act) permits associations to be based on more than one protected characteristic.

12.75 This interpretation of the Act is consistent with the right to freedom of association under Article 11 of the European Convention on Human Rights (ECHR). Article 11 includes the right (subject to proportionate restrictions) for people to be able to associate with one another to the exclusion of others in appropriate circumstances.

An association may therefore restrict membership to people who:

share one protected characteristic (for example women)
share more than one protected characteristic (for example Muslim women)
have any of more than one protected characteristic (for example lesbian, gay, bisexual or trans people)

Example
12.77 A lesbian, gay, bisexual and trans (LGBT) support group is set up to include gay, bisexual and trans people. Its membership is restricted to people with the protected characteristic of any of those sexual orientations, or gender reassignment. This is permitted under the Act.

I don't think the title of your club is significant. Look at:

12.67 The constitution of an association called the Black Jazz Players Club states that all members must have national origins in Africa or the Caribbean. Despite the use of ‘Black’ in its name, because the restrictions on membership of the association are based on national origins and not colour, these restrictions would not be unlawful.

From this I infer that the rules that are appled matter but not the name. There are people in Brownies who are not brown. And the Pony club doesn't admit ponies.

Regarding associations I think, having read everything referenced on this thread, that they will find it easier than charities to add TW. As has been said previously, they can restrict membership to a particular group because they feel like. However the guidance on charities is as follows:

13.46 The Act (section 193, paragraphs 1 and 2 and section 194, paragraphs 1 and 4) does not prohibit a person from providing benefits only to people who share a protected characteristic if this is in accordance with a charitable instrument that establishes or governs a charity, and is either:

• a proportionate means of achieving a legitimate aim, or
• for the purpose of preventing, or compensating for, a disadvantage linked to that protected characteristic

is it that an association does not have to explain why it is limiting it’s membership to certain groups?

Yes, that's it. If you engage in indirect discrimination in employment, that's lawful if it's a proportionate means to a legitimate aim. If you're taken to court for discrimination it's an excuse: we don't have a policy not to employ observant Jewish people as market inspectors but because the market is only open at weekends we can't get around the fact that everyone has to work both Saturday and Sunday. This is indirect discrimination, but it's legitimate.

In associations you don't need to justify why you're excluding men. Men can't complain that because you haven't got a good reason to exclude them they should be admitted to your book club, pottery association, bird-watching club. You don't need to have or give a good reason. You can do it 'just because'.

if you allow TW you exclude Muslim women who may not be able to attend and hence be discriminated against on the basis of faith

I don't think that flies. I don't think Muslim women have a legitimate expectation of "no men" in a social space. It's a preference, not something the law would enforce for them. No men in a women-only changing room - for sure. But not generally.

But Black does not have a specific meaning in law as Women does in the EA.

So using the word Women in the title would mean female.
You can't describe it as being for women then accept men.

In the same way you can't label toilets women and let in men. The label/ descriptor stipulates who it is for.

Black is a more nebulous term and can describe colour or heritage or culture.

Women means female. Not men.

The title is not a summary of membership rules. The Pony Club isn't for ponies. The LGB Alliance isn't open only to LGB people. As long as the rules are clear you're ok.

In the same way you can't label toilets women and let in men. The label/ descriptor stipulates who it is for.

A toilet is not a club or association. Toilets don't have names. The label on a toilet specifies who it's for, but the title of an association may be what the association is about rather than who can join. Or non-descriptive. Like "SCOPE". Or the Scouting Association. The hypothetical "Women's Guild" is for women and their GR supporters (of both sexes). All is clear.

Maybe.

It does feel to me that given the legal status of the word Women now (in the EA) giving a club the title 'Women' would reasonably give the impression it excludes men.

But you seem more confident than me that this would not be the case and obviously know more about the law, so you are probably correct but that feels wrong given what I've said above.

If a women attended a club with the title Women could she reasonably expect there wouldn't be any men? I guess it would have to be tested legally to know?

I do agree it shouldn't be done in a misleading manner.

This is an interesting listen. Maya talks about the association section of the Code as a strength and refers to being able to have LGBT groups etc due to freedom of association, and that being right because associations should be different to service providers. She doesn't mention that there could therefore be W & GR clubs though or any concern with this.
I wonder why not? I would be interested in their take on the discussion from this thread.

sex-matters.org/posts/videos/ehrc-guidance-finally-here/

Maya is on Mumsnet so maybe she will see this if I tag her? @MForstater

Thanks POWN.

It would be really useful to get her comments on this.

I think that this reasoning gets hung up on the wording of the SC ruling without taking into account the context.

The SC ruling said you can't label your toilets Women's and let men in. But that's because the label IS the entry criteria and women are going to enter thinking it's women only and hence would be discriminated against if they then found men in there. It is the fooling women into thinking they have a single sex space when they did not that was discriminatory.

An association that calls itself the Women's Club but is clear in it's membership application that some members are not women would not be fooling women into being in a club with men when they didn't want to be. I think it's highly unlikely a court would find against an association that used the word in its title but was generally clear in it's communication that it wasn't just women.

I agree the name for associations is not the issue it’s the membership criteria. As long as the criteria is clear then it’s up to new members if they want to join.

Scouts went from single sex to mixed sex and that works fine because it is transparent.

Scouts went from single sex to mixed sex and that works fine because it is transparent.

The Scouts were formerly known as the Boy Scouts. To be fair they changed name ten years before becoming mixed sex.

Exactly this. It's been pointed out umpteen times - if GG and the WI want to include boys and men then they need to change their constitution and be clear in the public communication that they've done that. What they can't do is keep saying they're organisations for women and girls

But the point is they don't have to include all men. They can, it seems from looking at the guidance, have a club for women plus trans people. This is a significant change from what was previously understood which was that you couldn't allow TW without making it open to all men.

But to do that,wouldn't you need a clear definition of trans?

The guidance is a bit loosely-goosey but one presumes when they write about a LGBT club what they mean by T is GR. I know they’re not the same, but still.

Not really, you'd rely on people being self identifying - same as if you had a club for gay people or religious people.

So it’s a club for anyone? Gotcha

Im Wondering how this interacts with the charities act 2011

basically to be a registered charity, you have to have a charitable purpose listed here https://www.gov.uk/setting-up-charity/charitable-purposes

a club for everyone that isnt trying to meet charitable objectives can't be a charity

This is the hurdle that GG or WI would have to clear if they did, by explicit change of their constitution, want to expand to include trans-identifying males. It's not at all obvious to me they could successfully present it as a coherent charitable aim. Scouts managed the switch from single-sex to mixed, though, so radical changes of purpose can happen.

What's new is that it seems a fresh organisation for "all those who identify as women" could be set up and not immediately fall foul of EA 2010 discrimination even though it is excluding some males because of their sex. Could they put in for charitable status in their aim of supporting "the full breadth of womanhood" (ugh)?Don't know.

I think it may not be as clear cut as that. Some organisations have used a very loose definition of 'woman'. So they talk about being woman-centred, or people who feel most comfortable in a female space or the 'range of femme gender identities' or what not. The requirement to use PCs in any membership criteria - sex and gender reassignment - wouldn't include some of those people, I wouldn't think. Or at least there may be some more toing and froing in relation to all the many delicate flavours of 'gender'. It feels like, for ease, organisations may just choose single-sex or mixed-sex.

I don't think you could be for "all those who identify as women" only as that would exclude transmen, who would normally be included by sex. I think the only way to do it is 'for women' and for 'anyone who has PC of gender reassignment'. Transmen are therefore in both groups. Old style women are covered by sex, old style men are excluded as they have neither PC defined in the membership. (I'm aware I'm playing fast and loose with the exact language here)

I think you're right: even the new interpretation only protects PC-positive associations against discrimination charges.

Well yeah. A club for anyone who claims to have "reassigned" their gender I guess. In exactly the same way a Catholic association is for anyone claiming to be catholic or a gay association is for people claiming to be gay.