The JVS Show - Do you think it's right trans women are now banned from single-sex spaces? - BBC Sounds JVS fights for your consumer rights, and Beds, Herts and Bucks big conversation.

Really good “vox pop” coverage here of the Supreme Court fall-out, revealing the total unworkability of EHRC plans and exposing the rank bigotry of those supporting bathroom bans.
Featuring @robinmoirawhite.bsky.social & @janefae.bsky.social
TW: Helen Joyce
www.bbc.co.uk/sounds/play/...
From 1.33.30

There’s no “independence” here… the EHRC is now functioning as a tool to push a transphobic ministerial agenda (one shared by three consecutive Women and Equalities ministers across two different parties)

Well this is what happens when a hate group captures government ministers, and then uses their appointment powers to capture a regulator too. We have just seen that a government minister can appoint anyone she likes as EHRC chair, even with two parliamentary committees saying she was unsuitable.

The question is simply whether there are any fallbacks / other defences under the EA if that indirect discrimination line is not accepted. And the answer seems to be “not many”.

My own view is that the argument “we’re discriminating by gender not sex, and FWS makes that indirect discrimination not direct discrimination” ought to be sufficient to defend any trans-inclusive association (using freedom of association as a legitimate aim to justify indirect discrimination).

I’m curious to see how that one goes. If it results in a general finding that gendered services and associations are allowed to be trans inclusive (to encourage participation by a disadvantaged group) then that would be great. Given the current judicial climate in the UK though, I think it won’t.

Well “positive discrimination” because of a protected characteristic is still discrimination because of that characteristic … and so illegal under the Equality Act unless there is an exemption.

Good Law Project are arguing the “positive action” provisions under Section 158 provide an exemption.

Another issue is that access to toilets is almost never enforced, and just operates by convention rather than by the service provider treating people differently by sex. So there is a wide understating that toilets aren’t legally separate sex services under the EA, but no case law has tested this.

And partly because the FWS judgment was restricted to the meaning of “sex” in the Equality Act. It doesn’t apply to the words “men” and “women” in other legislation, though the EHRC is apparently claiming it does 🙄

It’s a very wobbly case for trans exclusion from loos, partly because there is no one-to-one connection between a facility and a service (a provider may for instance offer separate sex services based on two different rooms, but also allow use of the other room where there are good reasons for that)

There is no mention of “toilets” in the Equality Act. But the EA does also refer to “facilities” and other pieces of legislation describe provision of separate “facilities” for men and women. (1992 Workplace Regulations and a bunch of Buildings Regulations).

And it’s also trans inclusive, because causing predictable disruption (or attracting harassment) in the room matching your birth sex would be a good reason to use the other one.

That’s separate treatment by sex, but covers off on all the usual exceptions for children, parents, carers, cleaning, maintenance, emergency access etc.

Even some unusual ones too (like conjoined twins of opposite sex).

The service for those born male is “Use the room with trousered stick figure, unless you have a good reason to use the other”. The service for those born female is “Use the room with skirted stick figure, unless you have a good reason to use the other”

“Separate sex” simply means there is some difference in the way the service is provided for one sex rather than the other. Here’s an example: two rooms with stick figures on the doors.

No there is no necessary connection between separate sex services and physically separated spaces. That’s another major misunderstanding of how separate sex services operate under the Act.

Indeed it might be safest for *any* single sex service operating under para 27 to fall back to 26(2). Because even if they *want* to exclude trans people, they’re likely to fail to do so in some cases, and so need some sort of a workaround to avoid losing protected status.

The service is provided “differently for each sex” because it is provided to cis people of one (birth) sex and to trans people of another (birth) sex. But that’s allowed under the para 28 exemption.

Another thing that has been curiously neglected is para 26 (2) … separate sex services with limited provision for one sex because of limited need from one sex.

A service operating under para 27 that wishes to be trans inclusive can simply switch to para 26(2).

7/ So that works for services. For associations, what? Messy workarounds, decomposing into parallel associations, and operating together? A “strained” interpretation of Schedule 16, para 1? Accepting that association by G is not direct discrimination by S (when G=S) or anyway covered by Article 11?

6/ The SP tells the cis person: to use the trans service you must access it by G, but for you G=S so it will be identical to using the separate sex (or single sex) service anyway.

5/ And cites the para 30 exemption if any cis person tries to use this parallel trans service. The para 30 exemption allows a service offered mainly to those with a protected characteristic to be offered in the same way to those without (or refused to those without).

4/ If G=S the provider operates separate sex services under Sch 3 Para 26 (or maybe a single sex service under para 27) with para 28 used to restrict these to those for whom G=S. That’s legal.

In parallel, the provider operates a mixed sex service based on G for those with G not equal to S

3/ … to claim that any discrimination based on an indirect proxy is actually direct discrimination (just argue it is a “relevant circumstance” that the proxy and protected characteristic match). So I doubt it would fly.

But what if it a judge buys it? Then use this fallback argument for services

2/ Could e.g. a cis man use a cis woman as a comparator and claim that *not* having gender reassignment characteristic (being cis) is a relevant circumstance, so the discrimination is actually directly based on S given that circumstance?

That is a real stretch because the same trick could be used

1/ I’m pondering a “defence in depth” approach here. We have two variables G and S. Discrimination because of G is not direct discrimination because of S. They are correlated so it’s indirect.

Well what happens when G=S (the person is cisgender)?

They’re also claiming “Oh but you never actually had any rights anyway, so you haven’t lost them”

Like Oceania has always been at war with Eastasia.

Oh god, don’t even get me *started* on how much of a mess Higgs v Farmor’s School has left things in after the Court of Appeal decision. The belief / manifestation distinction is gone.

And the Supreme Court refused to touch it so that’s the law until the European Court of Human Rights wades in.

Something I keep coming back to is that the whole interpretation falls apart once you acknowledge that trans women can breastfeed and therefore should be protected under s17(4). It's the clearest example of the human rights incompatibility of the FWS interpretation (there's no "clash" of rights).

Is there any reason "sex" couldn't have a unified meaning as an umbrella term for a cluster of related things, in the same way that "race" contains the meanings of colour, ethnicity and national origin?