Not only do the guidelines announced regarding single-sex exemptions suck, but they are probably unlawful and will not survive judicial review.
Baroness Kishwer Falkner’s EHRC has come under fire from the trans community once again as it continues to try and overcorrect its sense of balance in favour of transphobia. We are constantly told that all parties must be considered and there needs to be a fair balancing of rights, however it seems that trans people’s rights are often left out of the equation altogether.
For a quick catch-up on the single-sex exemptions; they are a caveat within the Equality Act 2010 which allows for service providers to exclude transgender people from spaces. It does this by ignoring acquired sex via a GRC and our protected characteristic via gender reassignment to focus on “birth sex”. This comes with a very high bar to meet, with the exact wording being “a proportionate means to achieve a legitimate aim”. It must be a high bar as it constitutes a lawful example of discrimination.
So far this language and the severity of the concept has helped to stave off attempts by transphobes to employ single-sex exemptions with a blanket approach. Meaning it can only be employed on a case-by-case basis and there must be a truly legitimate aim. However Kishwer Falkner’s EHRC has been making moves to support transphobic groups who would like to see the exemptions employed more liberally.
In guidance titled: “Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions”, EHRC set out what they refer to as a practical guide on the law for these kinds of spaces. This is the opinion of the EHRC as legal experts, however we’ve already seen what happens when these legal experts have their beliefs tested in court.
We saw this via Ann Sinnott, an LGB Alliance founder, attempting to seek judicial review in order to employ her view of single-sex exemptions. Sinnott was denied the review being told her view was “absurd” and “wrong in law”. This in part spurred on by the ‘Reindorf Review’ which attempted to claim Stonewall was misrepresenting the law surrounding single-sex exemptions. Akua Reindorf now works for EHRC.
Other news regarding single-sex exemptions includes the impassioned speech given in the House of Lords by Lord Etherton. He spoke on the single-sex exemptions and what a “legitimate aim” must be in order to meet the very high bar that has been set. Mere discomfort with transgender people is not enough to meet that bar. Meaning groups like Women’s Aid who turn away transgender women could be opening themselves up to legal dispute.
Further we can even look into the reasons the GRA was initially passed; one of them being privacy. Trans people, like all people, have a human right to privacy which means people can’t just demand to know you are transgender on the street or outside of a bathroom, for example. That’s not even getting into the human right to dignity and how that would apply.
Put simply; the idea that the EHRC put forwards in their “practical guide” in which they suggest things like people taking a “patient survey” on whether to let trans people pee in peace or not just do not work inside of a legal frame work. They are not only unenforceable, they do not respect the privacy, safety or dignity of transgender people and they still wouldn’t be enough for transphobes. As invariably polls have shown great support for including transgender people in spaces already.
The single-sex exemptions propose quite a conundrum for legal experts everywhere. There is no discounting that they exist, but how they work and whether an individual lawyer’s interpretation of them would stand up in court is really a guessing game. To my limited and not lawyer-like knowledge a judge has never ruled on single-sex exemptions, meaning there is no case law we can base decisions off of.
It’s my view that they should be scrapped entirely. They just don’t make sense. There is no way to justify employing them as being a “proportionate means to achieving a legitimate aim”. Guidance surrounding this even states it has to take the “least discriminatory path possible”, which in every single case would be to exclude the person acting with prejudice towards a transgender person. Not the transgender person for just existing.
I don’t think a lawyer would be able to ever successfully argue them in court and if that’s the case, why do they exist at all other than to be used as a looming threat over trans lives? Forget that, get rid of them.
