Sarah Phillimore and Robin Moira White interviewed by Andrew Doyle

Sorry such a miswording.
Not transwoman here. Transman.

(Dr Michael Foran had brought up earlier to show how problematically a GRC May interact with the Equality Act, in the case of a transwoman with a GRC who is pregnant losing her maternity rights as a biological woman by being treated as though (s)he is a man because of the GRC “changing” her sex).

Snap.

Google alerts must be working overtime for them.

At least RMW’s physical legal voice is impressive, because RMW’s written legal words are embarrassing.

I had the impression here in that section (in bold) that RMW was talking about sex in the Equality Act. If so, it had been made clear in the meeting a little earlier that to other people on the committee sex meant biological sex, even if not to RMW.

Thank you for that recap @ScrollingLeaves - it’s very useful to have it all written down. It does seem that my assumption was fair given the context. I still fail to see what is complicated about sex, whether biological or ‘legal’ - whatever that means.

It seems like the concept of legal sex has never been properly defined. That doesn’t make it complicated, just a newly invented
ill thought through idea designed to suit the needs of some. The only complication is generated by its divorce from fact and the constant reshaping necessary when it bumps into real life situations.

I always like getting back to basics, to simple truths. Biological sex is fully and absolutely defined and regardless of the feelings of some, is a universal truth.

Everyone knows what biological sex is, even the ones who claim they don’t.

Biological sex is a matter of scientific fact. Legal sex is a construct that tries to out-manoeuvre biology.

That is utterly bonkers!

how on earth can ‘female’ and ‘male’ not refer to gonads/genitals/chromosomes as set out in Corbett v Corbett?

Then there is this from the same 10th February Committee, where RMW again disagrees there is a clear definition of sex as biological in the EA and also argues against one being introduced. To my mind, given the EA does define sex as biological where it says male and female of any age, this means RMW wants the law to interpret away from the intended real meaning of the sex based exceptions in the EA ( except where RMW thinks they should apply).

Excerpt from:
committees.parliament.uk/oralevidence/1693/html/

Chair: Some of the written evidence that we received suggests that the Gender Recognition Act and the Equality Act provide different interpretations of the word “woman”. I appreciate that this can be quite contentious, but in the panel’s view—I will come to each of you individually, or put your hands up if you would like to comment on this— should the Equality Act be clearer in its definitions of woman and man, and whether it is referring to biological sex or legal gender?

Karon Monaghan: It seems to me that it does. It defines sex. It says that sex means being a man or woman, and then it says, under the interpretation provisions, that being a man is being male and being a woman is being female. In other words, male and female are biological characteristics, so it defines sex very specifically as a biological characteristic. Then it defines gender reassignment as the process or outcome of having gender reassigned. It does define sex. It may be misunderstood, but it does define it.

Q88
Chair: And you think that it is adequately clear?

Karon Monaghan: Yes. It defines it as a biological characteristic.

Naomi Cunningham: I agree with that.

Robin Moira White: They might, but the word “biological” does not appear anywhere in the Act. I would answer the question, in a sense, with a question: what is the point of the definition? If what we do is redefine the Act, or add to the definition in the Act, to say that it is limited to biological sex, we create all sorts of evidential difficulties for particular people. Are we going to take away a perception that somebody is a particular sex if they are perceived in a particular way? It is a bit like the question we were asked a moment ago about the Gender Recognition Act: do we need to change it and, if so, what would be the consequences?

You know that Karon and I disagree about whether there is a definition in there at the moment that is of any use. I do not think that there is. My question would be: if we strengthen it or add to it, what is the consequence of doing that? If we strengthen “biological”, are we going to
exclude trans women from circumstances where they should not be excluded?
Remember that I have accepted there are particular circumstances where perhaps an exclusion is justified. Or are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly?
Understanding what the consequence is of doing anything about a definition is the important bit about deciding whether to define something in a particular way.

Chair: Thank you. Sally.

Sally Brett: I think I would more endorse what Robin has said. It has highlighted as well that there is a difference of legal opinion on this and, given that difference of opinion, if there were going to be any move to create specific definitions that refer to biological sex, that should be carefully considered and properly consulted on—because there is this difference of opinion there. If someone has reassigned their gender, they have a desire to live in their acquired gender, not to live as a third gender, separate from man/woman.

Sally Brett: I think I would more endorse what Robin has said. It has highlighted as well that there is a difference of legal opinion on this and, given that difference of opinion, if there were going to be any move to create specific definitions that refer to biological sex, that should be carefully considered and properly consulted on—because there is this difference of opinion there. If someone has reassigned their gender, they have a desire to live in their acquired gender, not to live as a third gender, separate from man/woman.

Thanks again @ScrollingLeaves - really useful stuff. The funny thing is that if you read every mention of Sex in the EA as if it were legal sex not biological sex, it makes a nonsense of other protected characteristics such as Sexual Orientation. What is sexual orientation if it is not based on biological sex?

Michael Foran, one of the other lawyers on the S35 consultation panel explains all this really well.

We also see that Stonewall has been campaigning for years to remove the Single Sex exceptions from the EA. Why would they bother if it was based on legal sex not biological sex?

The ‘difference in legal opinions’ mentioned above does not seem to me to be a legitimate legally argued difference, but one based on wishful thinking and not clearly argued at all. I can follow Michael Foran’s explanations of the detail and logic. There are views from other lawyers that I can’t follow or find the logic in and I feel that I am not alone.

I also noticed that Lord Falconer who seems to have confusion over what sex is, seems to resort to bluff and ridicule rather than actually explaining his point clearly.

Thanks again @ScrollingLeaves - really useful stuff. The funny thing is that if you read every mention of Sex in the EA as if it were legal sex not biological sex, it makes a nonsense of other protected characteristics such as Sexual Orientation. What is sexual orientation if it is not based on biological sex?

Not at all.

Quite.

The legal witness Dr Michael Foran brings up that very point. Unfortunately sexual orientation in the Equality Act could be a casualty too in how it interacts with the GRA through Lady Haldane’s unchallenged judgement that sex is legal sex. (I don’t properly understand it.)

Committee meeting 31 January
committees.parliament.uk/oralevidence/12639/pdf/
From Q.49

Dr Michael Foran
Since we are bringing it up, if Halden is correct and sex means legal sex, then another difficulty in terms of direct and indirect discrimination is that every single discrimination case that has been decided on the basis of direct discrimination or on the grounds of sexual orientation is wrong, every single one of them, because sexual orientation in the Act is defined by someone who is attracted to a member of the same sex, whatever that means, a member of the opposite sex, whatever that means, or either the same sex or the opposite sex*.

^Now, I am a gay man. I am not attracted to a legal category; I am attracted to a biological category that may be a subset of a legal category. What that means is if I get fired because of my sexual orientation and seek to sue for direct discrimination, the argument will be, "You do not meet the standard here of direct discrimination. You meet indirect discrimination standards because it is more likely to affect people who are attracted to one biological category." If that is correct, that would be a radical change to how we understand the law in this area*.

Robin Moira White: I understand the point, but therefore what you have shown with an erudite and logical argument is that sex does not always mean the same thing section by section through the Act.

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

Are we going to take away a perception that somebody is a particular sex if they are perceived in a particular way? It is a bit like the question we were asked a moment ago about the Gender Recognition Act: do we need to change it and, if so, what would be the consequences? You know that Karon and I disagree about whether there is a definition in there at the moment that is of any use. I do not think that there is. My question would be: if we strengthen it or add to it, what is the consequence of doing that? If we strengthen “biological”, are we going to exclude trans women from circumstances where they should not be excluded. Remember that I have accepted there are particular circumstances where perhaps an exclusion is justified. Or are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly? Understanding what the consequence is of doing anything about a definition is the important bit about deciding whether to define something in a particular way.

If a person with the protected characteristic of gender reassignment falls in a forest, and no one is around to perceive them…
… would them have any sex at all?

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

Mic drop.

Good to see that I and Lady Haldane agree about what ‘sex’ means in the Equality Act and why. Oh and Lady Hale. Helpful when next in court or tribunal.

At least 3 people alive agree the earth was created in mere days.

More people agree the earth is flat

Even more agree we never landed on the moon

Doesn't mean they are correct

Single sex spaces are safer for women & girls - let's protect them!

Please click on the thread below for details of the petition to update the Equality Act

www.mumsnet.com/talk/petitions_noticeboard/4722618-petition-to-update-the-equality-act-thread-2?page=11&reply=124097004

I’m thinking of a new banner Beets

Something along the lines of ‘Biological Males BOG OFF’’ and a picture of a ladies lavatory.

are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly?

No. Men, whether they say they are women or not, can still engage with society, even if that society recognises their sex when they would prefer it didn’t. “Not allowed to engage” is nonsense. Not being allowed to do what they want, whatever the impact on others, is what you are referring to here.

And I bet, if those men had no choice but to use services and facilities appropriate to their sex, they would still engage. It might inconvenience them and doubtless they’d be angry at having their privilege removed, but that is better than women having their rights removed, as has happened already.

Of course, those men could, if they wished, ask society to acknowledge their discomfort when expected to use the spaces and facilities appropriate to their sex and campaign for separate spaces that would allow them to feel more comfortable. However, they would rather women were disadvantaged than to go to that effort, because they regard themselves as more important than women.

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

You’d think that everyone who works in the legal profession would understand that this is a pretty obvious requirement. In legal documents much weight is given to definitions of words to avoid confusion and ensure a common understanding.

You would never therefore, have a word with more than one meaning in a law.

Lady Haldane’s judgment makes no logical sense as Michael Foran explains very clearly. If ‘sex’ in the Equality Act refers throughout to ‘legal sex’, then it automatically invalidates the stated intentions of the protected characteristics of Sex and Sexual Orientation.

The intention in the EA is to protect people against or allow certain discrimination on the grounds of Sex and Sexual Orientation. The protections we need (single sex spaces, discrimination etc) are based on our biology. Sexual attraction is based on biology. As Michael points out, he is a gay man attracted to other men, not to a legal category that could contain women.

The only way the protections can be effective is for the definition to mean biological sex as our need for single sex spaces or our sexual attraction to another is based on a biological category of one sex, not a legal category that could contain both sexes.

I’m assuming the people who drafted the EA were genuine in their intentions and this wasn’t all some big subterfuge to pretend they were allowing us single sex exceptions but really not (like their deliberate deception over single ‘gender’ accommodation in the NHS) so if that is the case, then ‘sex’ in the EA has to mean biological sex only and the Haldane judgement should be challenged.

The irony of RMW talking about misrepresentation.

This is what happens when you start pretending stuff

heaven knows how we got into pretendy law

Robin, do you have anything to say about your disrespectful treatment of Dr Foran and Sarah Phillimore?

You've misrepresented them several times, but that's fine and dandy with you, i suppose.

RMW mentioned the ELA. Here, you can see that is the “Employment Lawyers Association.
Robin Moira White: Hello, I’m Robin *White. I am a barrister at Old Square Chambers. To preface anything that is heard from me, effectively I am wearing three hats today because I was part of the team that produced the Employment Lawyers Association consultation response for the Committee, but I have also submitted a personal response and, of course, I transitioned myself in 2011. If I give an answer that departs from the Employment Lawyers Association response because it is more personal, plainly the ELA response is that that is in the document that was given. I am delighted to be called Robin.

Later RMW says:
Robin Moira White: Absolutely. The definition in the Equality Act is that a woman is a female of any age and a man is a male of any age. Forgive me, Karon’s analysis is perfectly intellectually valid, but a different analysis—and we haven’t tried this through—is that all that those definitions do is say that a girl is a woman and a boy is a man. ELA’s view is that there is a complete lack of clarity about that in the Act, so working out who is in which sex for the purposes of the Act is still something that needs to be clarified either in terms of litigation or in more legislation
committees.parliament.uk/oralevidence/1693/html/.

To me it seems surprising that a lawyer cannot see that if a woman in the Equality Act is a female/male of any age, then ‘woman’/‘man’ must mean a biological woman/man because the word ‘female’
or ‘male’ defines binary biological states.

So it would seem likely that an employer seeking advice from the ELA would be told
that there is no clarity in the Equality Act -that sex means biological sex not sex by gender reassignment or Gender Recognition Certificate.

There must already be a lot of confusion around causing a ‘chilling effect’ on sex based services, associations, organisations and sports.

This is epitomised ad absurdum by Edinburgh Rape Crisis which, far from using the exceptions under the Act to keep men/males of the biology male out as intended in the act, is run by a man who identifies as a woman; or Scottish prisons, which would be allowed under the Equality Act to provide sex based housing for women/females/females of the biology female while excluding all male prisoners of any identity, but fail to do so; or Girls/womens’ football which has regulations stating that any male footballer who identifies as a woman may use the women’s changing room if they so choose, even though the Equality Act would allow them to exclude males of any identity.

It was started deliberately when the words “sex” and “gender” were used in the GRA to be interchangeable when it suited, but different when it didn’t suit.

This was actually discussed during the debate, but was shoved aside as unimportant, along with the questions about the negative effect on women’s rights, which was acknowledged at the time and dismissed as it was argued that only 5000 men in women’s spaces wouldn’t make much difference.

The GRA was based on the idea that pretence is preferable to reality. I just posted on another thread about this, but I'll post it here as well.

To a large extent, I think we are where we are because a law was passed in 2004 which made the assumption that society could not or would not accept men who wanted to present in a feminine way.

The law was based on the assumption that it was better that a such a man disguised himself convincingly enough as a woman, and that this person's true sex should not be disclosed to most of the people with whom he interacted.

Everything else follows from this.

If instead same-sex marriage had been legalised alongside a law which said that people shouldn't be discriminated against if they chose to present in a non-standard way for someone of their sex, we'd be in a much better place now.

Good to see that I and Lady Haldane agree about what ‘sex’ means in the Equality Act and why. Oh and Lady Hale. Helpful when next in court or tribunal.

This witty school yard response suggests that RMW absolutely hates this tiny corner of the MN universe trying to safeguard and slow down the irreparable harm being done to, predominantly neurodiverse, children, teens and young adult women and men and also to save single sex spaces for the female sex.

And why the passionate inexorable fight to privilege ’legal’ over biological sex? This, to me, is telling… because "If we strengthen “biological”, are we going to exclude trans women from circumstances where they should not be excluded…." Seems some TW really cannot stand the thought of being excluded from anywhere.

Moreover, whilst RMW pretends to acknowledge that there are "…particular circumstances where perhaps an exclusion is justified", there is no explanation forthcoming on exactly what circumstances TW should not be excluded from? Not excluded from women’s sports? Women’s prisons? Women’s refuges? All female short lists? It’d be really helpful, surely, to the discussion to have this spelled out. And that perhaps is, IMO, ominous. Once the EA is deemed to be speaking about legal sex, then that perhaps is erased forever and no exclusion ever justified. How could it be otherwise?