Transwomen are not Women - Part 15

[Rolfe]

It is, though.

 

[Emily's Cat]

Progress is.... Having a struggle session about a children's Harry Potter themed park walk that results in a public apology, tears, disavowal of an author on the other side of an ocean, all because a small handful of adult males are angry that a female somewhere won't bend to their will. Holy cow, this is certifiable.

https://twitter.com/x/status/1976037785950978252

 

[theprestige]

Same same, but you folks keep making these bold claims without ever pointing to any legal analyses showing which paragraphs and clauses of the law will be applied by the courts in this case. It is doubtful that the single-sex exceptions even apply here, since the CLC claims “it is not providing single-sex facilities as defined within the EqA.”

It is, though.

tl;dr - @d4m10n thinks it's unclear and (presumably) will need to be tested in court once someone tries it on; meanwhile @Rolfe , @Emily's Cat , et al. think the law is quite clear that trying it on is not allowed.

Personally, I'm inclined towards damion's interpretation, but either way, can we skip the part where we have this same exact inconclusive conversation seventeen more times, and get to the part where we just move the ◊◊◊◊ on while we wait to see if it ever does get tested in court?

 

[Rolfe]

I'll give it one more try.

The EA isn't primarily concerned with who is allowed to be in a specific group, but who is excluded, i.e. who is being discriminated against. If the reason they are being discriminated against relates to their possession of one of the specified Protected Characteristics, then the EA is invoked whether the provider of the service likes it or not. The exclusion has to be a proportionate means to achieve a legitimate aim, and everyone must be treated equally as regards their PCs in the pursuit of this.

There are a number of PCs (and we all have at least one), but let's stick to the two relevant to this discussion, sex and gender reassignment. If the provider says that only women and men who have the PC of gender reassignment are allowed to use this service, the focus is on the people who are being excluded. In this case, men who do not have the PC of gender reassignment. Such a man might ask why he is being excluded. If the answer is, you are a man, then the counter is, but you are allowing some men in, why not me? If the answer is, you do not have the PC of gender reassigment, the counter is, but you are allowing lots of people in who don't have the PC of gender reassignment, why not me?

The fact that sex and gender reassignment are the criteria for inclusion automatically invokes the EA and the EA does not permit this. You can exclude all men, but as soon as you include some men, you are obliged to include them all, as this is no longer a single-sex service within the meaning of the EA. You could, if you wanted to, exclude people who do not have the PC of gender reassignment, but as soon as you include some people who do not have this PC, then you are obliged to include all people who do not have this PC. Our hypothetical discriminated-against man wins, because he is being treated less favourably whichever way you do the comparison. (That is, he is being treated less favourably than a man with the PC of gender reassignment and less favourably than a woman without that PC.) This is why mixing (rather than adding) PCs doesn't work.

I'm not that surprised that some lawyers may have said this is OK, because there are a lot of captured lawyers, and if you want to find a lawyer who will tell you that what you want to do is OK you can usually find one. But this is going to crash and burn. If they exclude some men, on the grounds that they are men, then they have to exclude all men or it is not a single-sex space. If it's not a single-sex space then the EA dispensation to exclude men on the basis of sex doesn't apply.

ETA: There are changing rooms here too. Imagine trying this one on with changing rooms. These changing rooms are not a single-sex facility as covered by the EA. We allow women and trans-identified men in. Sorry, you have just come under the scope of the EA the minute you said the word "women" and you can't escape that.

You can't drive a coach and horses through this just by saying the magic words "we are not providing single-sex facilities as defined within the EA.” If you could, there would be no point to the EA. Otherwise this "women and trans-identified men, not a single-sex facility as defined" get-out-of-jail card would be able to be played by anyone providing toilets, changing rooms, sleeping accommodation, domestic violence refuges, anything. And we'd be right back at square one. Which we're not. The get-out-of-jail card doesn't exist.

 

[Aber]

Where are you seeing that in the text of the decision itself?

This is basic Equality Act interpretation, not based on the Supreme Court judgement.

Much of it hinges on the choice of comparator ie someone who does not have the protected characteristic under discussion, as explained by Rolfe above, which the Supreme Court did specifically address:

Where gender reassignment is the protected characteristic, in the case of a male person proposing to or undergoing gender reassignment to the opposite sex, the correct comparator is likely to be a man without the protected characteristic of gender reassignment

Also

In other words, if as a matter of law, a service-provider is required to provide services previously limited to women also to trans women with a GRC even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men.

 

[d4m10n]

If it's not a single-sex space then the EA dispensation to exclude men on the basis of sex doesn't apply.

It all comes down to this right here. Which specific part of the EqA will the City of London Corporation (CLC) rely upon to argue for how they are running the ponds right now (as three separate mixed-sex spaces, two of which are based on the protected characteristic of gender identity alongside the protected characteristic of sex)? If they are relying on Paragraph 27 of Schedule 3 (“Single-sex services”) then they will have to work with what the Supreme Court said about what "sex" means in that text.

 

[theprestige]

Honestly I'm more curious about how they will enforce the gender identity restriction. Will men have to present a GRC to be granted access? Or will they just have to keep it handy, in case one of the other bathers wants to verify their eligibility? Will the women be required to present a government ID that records their sex? Or will they be allowed in on the time-honored "looks like a woman" criteria? Will it be acceptable for another bather to demand that a woman confirm her sex?

Or will it all be just fiat self-ID and the honor system?

And lest we forget: The men who want access to women's spaces whether women like it or not are probably the last kind of men that should be granted the privilege.

 

[Rolfe]

It's just not lawful. If you let some men in, you can't exclude other men on the basis that they're men. Or if you let some non-"trans" people in, you can't exclude anyone on the grounds that they're not "trans".

But as the previous post says, it's also unenforceable. How do you tell, at the entrance to a swimming pond, whether someone has chosen to "live his life as a woman"? Will there be someone demanding proof? What proof would be acceptable? Will they ask everyone for this proof, or just people who don't look like women? It's nuts. Entry according to what disguise you're wearing today?

It's three mixed ponds, choose whichever one you like the look of, or it's one male, one female and one mixed. Everyone has a choice of two ponds they can use absolutely properly and legally.

If it was the case that people didn't want single-sex swimming, so that the mixed pond was choc-a-bloc and the other two were almost empty, there might be a case for making them all mixed. But that's not the case. Plenty swimmers obviously value the single-sex ponds. Why deprive them of what they want just because some men want to swim out of their lane?

 

[8enotto]

Its still possible to live where these laws and issues don't exist. A more simple rule of respect local law and don't commit hate motivated actions still holds.

Nobody has to necessarily like everyone around them or how they live, they just have to respect and tolerate them. From both sides of the spectrum, no laws required.

Little hubs of just about every subculture exist in Mexico City and hate crimes are not daily news. People can regulate themselves given a chance.

 

[theprestige]

It's just not lawful. If you let some men in, you can't exclude other men on the basis that they're men. Or if you let some non-"trans" people in, you can't exclude anyone on the grounds that they're not "trans".

Yep! I understood your argument the last half dozen times. I'm past it now: Waiting to see if anyone tries it, and how the courts end up ruling when they do. Meanwhile I'm wondering about other aspects of the broader conundrum. Like how they'd actually enforce it if they did try.

 

[Emily's Cat]

It all comes down to this right here. Which specific part of the EqA will the City of London Corporation (CLC) rely upon to argue for how they are running the ponds right now (as three separate mixed-sex spaces, two of which are based on the protected characteristic of gender identity alongside the protected characteristic of sex)? If they are relying on Paragraph 27 of Schedule 3 (“Single-sex services”) then they will have to work with what the Supreme Court said about what "sex" means in that text.

Gender Identity isn't a protected characteristic, having a GRC is. Additionally, the SC ruling indicated that services labeled as "women" or "men" are always assumed to be referring to sex, and not to gender identity. Thus, the "men's pond" is a pond of male human beings and cannot allow any females to use it without having to relabel it as mixed sex.

 

[Elaedith]

Gender Identity isn't a protected characteristic, having a GRC is. Additionally, the SC ruling indicated that services labeled as "women" or "men" are always assumed to be referring to sex, and not to gender identity. Thus, the "men's pond" is a pond of male human beings and cannot allow any females to use it without having to relabel it as mixed sex.

The protected characteristic in the UK is 'gender reassignment', which does not require a GRC. In fact, it is defined so loosely that somebody who has begun thinking about changing their pronouns would probably qualify as having the protected characteristic.

 

[Emily's Cat]

The protected characteristic in the UK is 'gender reassignment', which does not require a GRC. In fact, it is defined so loosely that somebody who has begun thinking about changing their pronouns would probably qualify as having the protected characteristic.

Thanks for the clarification.

Nothing quite so useful as having a characteristic that boils down to "whatever you say" being protected.

 

[Rolfe]

That's a large part of the reason the SC came down the way it did. When a characteristic is as nebulous as that, you can't legislate for it.

 

[Rolfe]

Yep! I understood your argument the last half dozen times. I'm past it now: Waiting to see if anyone tries it, and how the courts end up ruling when they do. Meanwhile I'm wondering about other aspects of the broader conundrum. Like how they'd actually enforce it if they did try.

They are apparently trying it, that's what we're talking about. And they will be challenged in court. They are being challenged in court. So just stick around.

 

[smartcooky]

It all comes down to this right here. Which specific part of the EqA will the City of London Corporation (CLC) rely upon to argue for how they are running the ponds right now (as three separate mixed-sex spaces, two of which are based on the protected characteristic of gender identity alongside the protected characteristic of sex)? If they are relying on Paragraph 27 of Schedule 3 (“Single-sex services”) then they will have to work with what the Supreme Court said about what "sex" means in that text.

AIUI, they cannot do that. The SC ruling makes it clear that such restrictions must be based on biological sex.

You still don't seem to be grasping the idea that MALES are to be kept out of FEMALE spaces... biological MALES, ans since ALL transgender identified men are, by definition, and without any exceptions, are biological MALES, they are also kept out of female spaces.

 

[Rolfe]

You understand correctly. AIUI, the pond people are trying to say they're not running a single-sex space, therefore the EA2010 doesn't apply, therefore they can do what they like. The problem comes the minute they use the words women and men, or male and female, or guys and dolls or whatever terms they pick. That invokes the EA2010 whether they like it or not, and they are then bound either to exclude all males, or to give up the whole idea and have a completely mixed space. There is no middle ground.

Someone really needs to tell them that four of their suggested options are illegal. There are three legal options as far as I can see. Revert to men, women and mixed according to biological sex, have all the ponds mixed-sex, or combine these by having strict sex segregation on some days and all mixed-sex on other days. There aren't any other possibilities.

 

[d4m10n]

SC ruling indicated that services labeled as "women" or "men" are always assumed to be referring to sex, and not to gender identity.

What page was that?

The SC ruling makes it clear that such restrictions must be based on biological sex.

What page was that?

That invokes the EA2010 whether they like it or not...

I don't recall where any British ruling has affirmed that any use of gendered language by service providers must be interpreted in the same way as the terms are used in the EqA. Surely the courts recognize that language mutates over time.

I think it would be totally bonkers if some municipality were to have a sign that says "Women's Pool (ciswomen and transwomen)" and then the courts were to come along and say "Aha! They said the magic word and therefore must be offering single-sex services."

 

[Emily's Cat]

Damion, I'm just not up for playing pedantic litigation games today.

 

[d4m10n]

Damion, I'm just not up for playing pedantic litigation games today.

If you don't want me to ask where the ruling said that, don't make the claim that the ruling said that.