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.

Can you identify a clause or section in any consumer legislation that applies to the name of societies, or gives a court the power to require the name of an association to be changed?

The EA2010 give people remedies against unlawful discrimination, harassment and victimization. While we talk about this kind of association being legal, or that kind kind being illegal, doing so is a convenient shorthand:the act doesn’t actually say nobody may create an unlawful society or provide penalties for doing so.

What the EA2010 provides is a shield against a claim of unlawful discrimination under certain circumstances. Someone still has to make and win a claim against an “illegal” association, and win damages. If one claims this Act regulates what societies call themselves one would have to establish that the name of a society is somehow discriminatory in its own right. I don’t think one can do that.

It would be .women' and 'people with the protected characteristic gender reassignment'.

@MyAmpleSheep i think you are missing a few other clauses as to why a “ women and TW” only association would NOT be legal , particularly this one “12.72 Associations that restrict membership to persons who share a particular protected characteristic must not discriminate in relation to any other protected characteristic.” ….. although both have protected characteristics, and both may define themselves as women, the organisation cannot reconcile the two as admitting TW could be discriminatory against both women and men . Again, further points that demonstrate why charitable organisations such as WI and Girl guiding would NOT able to admit TW/ Trans boys are described in Section 12 and in Section 13, particularly relating to the exceptions that apply to charities .

Not possible, see my point above referencing 12.72

Could an association be for all girls and Christian men according to this guidance?

That doesn't contradict your point. You can use 2 different PCs, in this case sex and gender reassignment, what 12.72 means you can't do, is say "this association is for women and people with the PC gender reassignment, except anyone who is disabled". There are examples in the guidance. From memory I think they say a club can be for men only but can't exclude men if they are gay.

ETA this means you couldn't exclude transmen as you would be saying 'female people except these female people and people with the PC gender reassignment except these people'. That isn't allowed

I agree that there are other impediments to GG and the WI.

I’m not sure I agree with your interpretation of 12.72. It maymean that you may only discriminate in accordance with the set of protected characteristics that define your membership criteria. Are there some examples of how 12.72 fits in with the new one-of-many-PC criteria?

When I wrote about Boolean combinations of protected characteristics, that was somewhat tongue in cheek. The EHRC says that membership can be a single PC, or a union of PCs, or an intersection of PCs. It doesn’t say you can combine unions of intersections. But it doesn’t say you can’t, either.

If we are really paying homage to Article 11 rights, we don’t really know what those are so it’s hard to see how far a court would do the backwards bending over bit to give them life.

on the specific “women and trans women” club: “women + GR” is now legal and is adequate in practice to achieve the desired goal, as trans identifying women (“trans men”) will self exclude.

From memory I think they say a club can be for men only but can't exclude men if they are gay.

So are they saying that a club for heterosexual men would be lawful or unlawful?

I don’t think this is right re guides who already do take 2 PC into account, age and sex. Maybe less clear ref WI.

A club for heterosexual men has always been lawful, as it’s for people with both of two protected characteristics.

I imagine it's lawful as long as it's in the rules. Maybe you could exclude transmen then if the rule was women that aren't trans and men that are. At this stage who knows.

OK my head is going to explode now.

Could we change this example to women and Christian men, to avoid the safeguarding implications? And to make it more comparable to the W & TW situation

If some women wanted to be in group with only Christian men they should legally be allowed to be I suppose?

It would be very weird because the women could be any women who self selects, but the men would have to be Christian. But if people wanted to opt into this weirdness, and the weirdness was clear in the advertising and set up of the group. Why shouldn't they?

The new rule doesn’t say that you can do carve outs; that was my invention, and maybe I didn’t make that obvious enough. As it stands it’s a simple union of PCs or an intersection of PCs.

So “ gay men”or “people who are either opposite sex oriented or men”

women that aren't trans and men that are

Women and GR people - union
Women who are GR - intersection

But if women and men are both mentioned in the rule it’s either everyone (women or men) or nobody (people who are both women and men)

Not at first instance.

Christian Women - always ok
Christians (of both sexes) and women (of any religion) - ok according to the new rule

“women and Christian men” would need some serious reinterpretation the EHRC hasn’t described. Yet.

Sorry - watching too much dystopian TV!

Wikipedia are going to be wondering why they've had a spike of requests for the set theory article from British IPs in the last 24 hours.

Could you talk through how it is different to women + trans women?

Is it because the PC would actually be everyone covered by gender reassignment and the assumption would be that trans men would self exclude?

@MyAmpleSheep @BackToLurk you can’t have a women’s plus TW group because any group that decides to have the legitimate aim of including women but excluding men , but then decides to have TW admitted, automatically disqualifies itself from being able to use the legitimate aim of being able to exclude by sex. Even with the “multiple protected characteristics” aspect, it means you can’t choose contradicting aims as they cancel each other out. I hope that put things clearly.

Associations don't need a legitimate aim.

Yes, I think so. A strict “women+trans women” criteria still doesn’t fit the new EHRC guidance, but “all women and all gender reassigned people” does match the guidance and women who identify as men will self exclude, leaving you in practice with only the people you want.

To sum up where we got to earlier, they kind-of do need legitimacy in order to pass wider Article 11 scrutiny, but there’s no legitimate aim requirement explicitly in the EA where it’s silently considered that the benefit of allowing PC holders to associate is automatically a legitimate aim that outweighs the exclusion of others.

No it doesn’t because it can no longer be a women’s group that is legitimately excluding men apart from a specific subset who have a second PC. You need to think about the actual intention behind things…why do we exclude men and why that might be legitimate, and then why would admitting a TW contradict that legitimacy.

I always assumed that it was because creating legislation that would have threatened gentlemen's clubs was a step too far for Parliament...

It may be legal but it's still fucking sexist.

If they think there are interests or social interactions that will appeal to lots of girls and some boys just name it after that. Call it "the fluffy bunnikins club" or the "pink party club" or the "it's nice to win but even nicer to let others win racers" or even "playtime for anyone who suffers patriarchal devaluing of the feminine" or whatever. Just don't call it "Women" or "Girls" because it isn't.

Thanks for explaining this @MyAmpleSheep I have to admit I am struggling to follow the logic and I'm trying really hard!