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.

Are you saying associations are exempt from equalities laws?
So, it would be legitimate to form The Association of able bodied men, for example? Or The Association of white heterosexuals? And that these associations could refuse membership to people who were gay, black or disabled, because they felt like it?

Her X thread makes the points quite clearly. I'll copy them here. In summary this is new, it is significant, and it's not settled law at all.

(reposted) on the only big change to the @EHRC Code of Practice made at the behest of @bphillipson: the new paras 12.74 and 12.75 on multi protected characteristic associations...

1 This is about associations only. It’s a legal interpretation allowing membership of an association to be restricted to those who have either one or the other of two (or more) protected characteristics
2 The Equality Act on its face doesn’t allow this mix & match
It only allows an association to be restricted to people who all share one protected characteristic (eg “women only) or who all share more than one PC (eg “disabled women only”)

3 But it was always clear that this must be contrary to the right to freedom of association in Art 11 ECHR
Under Art 11 you must allow an association for members who each have one or other of multiple PCs (eg “LGBT”). It’s not fair to stop people associating as they wish

4 So when we were drafting the Code of Practice we knew that a way would have to be found to interpret or amend the Equality Act to make it compliant with Art 11. I am content with that in principle
5 Note that this doesn't change the fact that if you describe your association as "women only", it does mean women only.

6 The solution that’s been found via the Interpretation Act seems arguable
But it’s not settled law
I’m uncomfortable with the Code “making law” like this
It’s meant to be guidance to settled law. It’s not meant to step into the shoes of the legislature or the judiciary

7 I’m also very uncomfortable with government imposing changes on the Code after it was submitted by the @EHRC
I think this governmental meddling raises difficult questions about the @EHRC’s independence from government, a requirement of @Ganhri1's Paris Principles…

8 This puts @EHRC’s National Human Rights Institution “A” rating at risk
And all for the sake of performative political game playing
The Code has barely changed, but @bphillipson can now spin it as though she’s secured some sort of victory over @KishwerFalkner. She hasn’t

/end

Absolutely no "legitimacy" required. Schedule 16 has no proportionality requirement.

There is still some holdback. This new interpretation says you can set up associations with all kinds of complex rules for inclusion. And it's OK if some people are excluded, even if that relates to a protected characteristic.
But the rules have to be a positive combination for inclusion — no negatives that say "you can be a member only if you are not Hindu".

It's a fine line, as some PCs (sex, age) come in complements — admitting only people under 30 is necessarily the same as excluding those 30 or over. But it's not quite a complete free-for-all.

Are you saying associations are exempt from equalities laws?

Don't be silly. We're arguing about the meaning of the section of the EA2010 that applies to associations. That should answer that question.

The permission to create associations for holders of PC's explicitly excludes skin colour. So your "white" heterosexuals example fails for that reason.

To answer your specific point, an association that meets the membership criteria in the act (single PC, multiple PC, and now pick-and-mix PC) doesn't depend on any justification for it's legality. There isn't any justification that could permit an association of white heterosexuals, and there isn't any failure of justification that could forbid an association of heterosexuals (legal) or Polish gay people (also legal). They're both acceptable.

The association of able bodied men

No, because excluding disabled people is expressly forbidden.

The association of men

Fine

The association of heterosexuals

Fine.

The association of white heterosexuals

Not fine, because discrimination based on skin colour is expressly forbidden.

Associations have different exceptions from services. This is the relevant bit of the EA:

https://www.legislation.gov.uk/ukpga/2010/15/schedule/16/crossheading/single-characteristic-associations

It is lawful to restrict membership to people who share a protected characteristic just because you want to - with the exception of skin colour, so your second example would not be lawful.

While disability is a protected characteristic, not having a disability, i.e. being able bodied, is not. So an association of able bodied men would not be able to rely on the exception.

I'm not being 'silly', I'm trying to understand. The extract you quoted, specifically about associations says the right (subject to appropriate restrictions)...to exclude others in appropriate circumstances. Does the qualifier of appropriate restrictions/ circumstances not suggest there would need to be justification for the exclusion of others based on their PC?

There is. It's called "being willing to make a promise that includes an oath of loyalty to the King".

I think not, just about. You still can't exclude people explicitly for a protected characteristics (EA Section 101); except as a side-effect of including by a PC (EA Schedule 16). With a specific ban on using colour (Also EA Schedule 16).

Being able-bodied is not a protected characteristic. I think being heterosexual is, though, so a straight men's gardening club might still be able to be exclusive in its membership as a lesbian pottery group.

Thank you. I realised the error in my able bodied example after posting it and intended the example to be race, rather than skin colour. Is race excluded?

Yes, I realised able bodied was an error as the PC is disability. Heterosexual is a PC because the PC is sexuality (of any type).

This bit? "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."

That's about Article 11 of the European Convention on Human Rights. It's not the text of the Equality Act 2010.

Does the qualifier of appropriate restrictions/ circumstances not suggest there would need to be justification for the exclusion of others based on their PC?

It does as far as the ECHR is concerned, but the answer the UK government would give would be that permitting people with one or more protected characteristics to associate together (and therefore exclude those who don't hold that PC) is - of itself - a justification for excluding the others.

You might argue that a "Hindus and gay Poles" association violates Article 11 of the ECHR but that's a different argument and would need an intervention from the European Court. Much as the TRAs hope for an intervention in their favour. What the new interpretation under this guidance says is that is permitted in British law.

We used to be in the position that the interpretation of the association rules was too narrow; it forbade some associations that the ECHR would say were lawful - Reindorf's point above, that "LGBT clubs" should be allowed. We now may have gone too far the other way, and domestically permit some assocations the ECHR might forbid. But the overlap of domestic and international law is never going to be perfect and I think the European court accepts that under the term "margin of appreciation."

Yes, they would.

Race is defined as an umbrella term including nationality, colour and ethnic or national origins. Associations for race as nationality are permitted. Race as skin colour, not.

this doesn't change the fact that if you describe your association as "women only", it does mean women only.

They'd need to become 'Guides' and change their objectives etc.

Thinking back, there was a kind of "waiting period" before taking the promise as well. You had to learn about Guide values as expressed in the Guide Laws. There is a period akin to that of a novice would-be nun before you commit by taking the promise. I'd say that that's a selection process.

No, you can restrict by other aspects of race, just not skin colour. The new code gives an example:

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.

I think that's what I'm trying to understand. It's the legitimacy of the exclusion, as in surely it would need to be, if the association were not to be found to discriminate.
So if there was an association for heterosexual men, surely they would need to justify the 'no gay men welcome' rule?
Or an association for married mothers, would need to justify why single mums weren't allowed?

I haven't read the full guidance so perhaps you may be right @MyAmpleSheep but I'm not sure that "all women plus any man who is particularly sparkly" is directly equivalent to these examples. The examples in the guidance would be clear that it's fine to have an organisation that is for transwomen, or for ethnic minority disabled transmen. There's no example that seems equivalent to WI/GG as far as I can see - the equivalent would be for an organisation that is for Disabled people plus Jewish people, where the disabled people may or may not be Jewish and the Jewish people may or may not be Disabled - that would make no sense, and neither does a single-sex organisation that admits some members of the opposite sex. If it were to be upheld as equivalent then in order to comply with what you have quoted, if you are correct, organisations like GG and WI would need to change their constitutions to be clear that they are not single sex but are open to Women/Girls plus trans people of either sex and would need to be clear in their advertising and in all relevant documentation that they are not organisations that are single-sex for women and girls. It's the lying that's the biggest issue, plus the misappropriation of funds when charitable legacies are given to a charity for the benefit of women and girls and then using those funds to convert the organisation into a support mechanism for male people who want female acolytes to validate their delusions. There's no legal basis for them to claim to be an organisation that is for wonen/girls but to admit some men/boys too, and the words women/girls in this context specifically means biologically/genetically. Single sex organisations are allowed to exist. Obviously mixed sex organisations are allowed to exist. Organisations are not allowed to pretend they are single sex whilst actually being mixed sex. If they want to be mixed sex that's fine, they just have to follow their existing constitutional process to make that explicit.

Thank you.

OK, thank you for the explanation, thats helpful.

No, there does not need to be a justification. My understanding is that it's because it's based on the article 11 right to freedom of association. We all have that right and we don't have to justify it. The government can only interfere with that right in specific circumstances.

https://www.equalityhumanrights.com/human-rights/human-rights-act/article-11-freedom-assembly-and-association

You have to think of the right to free association as a positive, rather than exclusionary right. So heterosexual men can form a club, even though that incidentally excludes women, gays and bisexual men. If you construct a teetering pile of requirements that has the real world effect of excluding just one small target group with a shared PC, then you'll fall foul of the bit of Article 11 that says that the right to free association can be limited in order to protect the rights of others.

Marriage is only a PC for employment purposes, so a club for married, or singles, is fine without relying on Schedule 16 anyway.

If you construct a teetering pile of requirements that has the real world effect of excluding just one small target group with a shared PC, then you'll fall foul of the bit of Article 11 that says that the right to free association can be limited in order to protect the rights of others.

That's a stretch, and you'd have to get a ruling from Strasburg to change UK law to accomodate your objection.

Marriage is only a PC for employment purposes, so a club for married, or singles, is fine without relying on Schedule 16 anyway.

Are you sure? Being single is not protected in employment law, but that's not the same that the married/single PC doesn't apply for services or associations. I think it's still unlawful to discriminate against married people or single people in the provision of services and public functions. At least, I don't see an exception in Schedule 3 for it.

The important questions are:

• Can this guidance be clarified by lawyers?
• Can it be challenged in court as not being what the EA actually says?