Does this mean you think Swift J was wrong to say that, whilst such arrangements may constitute illegal direct sex-discrimination against men, whether or not they actually do will depend on the facts of the case (because it depends on whether they are treated less favourably overall thereby)?
I don't think he was wrong - in each case the complainant still has to show the discrimination. But I don't think that's a heavy burden, in the case of a single sex pool. I think I explained above how the reasoning in al-Hijra applies.
Here are some excerpts from that Court of Appeal judgment:
48 ... It was submitted [by Ofsted] that the point can be put on the basis of a comparator, namely (in the case of discrimination against a girl pupil) a boy pupil who can mix with other boy pupils, and (in the case of discrimination against a boy pupil) a girl pupil who can mix with other girl pupils, or it can be advanced without any comparator by simply asking what would have been the position if the girl pupil or the boy pupil did not have the protected characteristic of their sex. It is said that, either way, there is discrimination contrary to any one or all of EA 2010 s. 85(2)(a)(b)(d) and (f). Viewed from the perspective of an individual pupil, in that way, both the girl pupil and the boy pupil are treated less favourably than the other.
47. We agree with those submissions of Ofsted
- Furthermore, we do not accept the School’s argument that, whether looked at from an individual or group perspective, separate but equal treatment by reason of gender cannot be unlawful discrimination even if it is detrimental. The way Mr Oldham put it in the course of his submission was there cannot be unlawful discrimination if both the complainant and the comparator suffer the same detriment even if they would have been treated differently if they were a different sex. The following cases support the rejection of that argument, as does the general principle that the discrimination legislation should be given a wide and purposive interpretation rather than a narrow one:
I could go on.