Lets talk about the “West Yorkshire” case. It is one of the few pieces of case law relevant to the question of how 'gender reassignment' interacts with single sex services & exemptions, and so it has carried a lot of weight. It is well worth reading. publications.parliament.uk/pa/ld200304/ld…
The circumstances of the case happened in 1997 and the final appeal was in 2004 – so this was under the old sex discrimination and just prior to the Gender Recognition Act.
It concerns ‘Ms A’ a M-to-F transsexual who applied to become a police constable and was turned down on the grounds that the job required being able search either male or female people (police rules are that people should be searched by someone of their own sex).
As an “apparent woman” A could not search men as it would undermine the suspect’s decency and privacy, but as a “legal man” it would have been unlawful for A to search female suspects.
Since searching suspects is part of the job, the Chief Constable had decided it was not possible to employ A. However this meant that A was being treated less favourably than a non-transsexual person (either male or female) and was therefore being discriminated against.
The case went to tribunal, appeal and eventually the House of Lords to square the circle between the responsibility of the police force to “reduce to a minimum the embarrassment that a person being searched” and the human right of transsexuals not to be discriminated against
Much hinged on the fact that A was a post-op transsexual who, according to the judges passed as a woman for all intents & purposes “If she is treated, as she wishes, in all respects as a woman, nobody will be any the wiser”
The tribunal considered the risk to the police force if A was employed; How often are searches? If a woman found out she had been searched by a man could she file charges of assault? What if instead arrangements were made for a female officer to undertake searches?
The tribunal judged that it was not proportionate to deny the applicant a job as police constable, because of the issue with searches, and this was ultimately upheld by the House of Lords.
The rulings did not say that the police force must in all circumstances treat A as a woman. The tribunal discusses a scenario of a Muslim woman in custody saying that a ‘community leader’ might object, and ‘it may be proper to arrange for female police officer to undertake care
The HoL ultimately agreed that A could search women, saying that the requirement to be "the same sex" could be interpreted as the “acquired gender of a post-op transsexual who is visually & for all practical purposes indistinguishable from non-transsexual members of that gender”
The law lords also said that it would have been an acceptable option for the Chief Constable to have employed A on the basis that arrangements could be made for other officers to perform any searches.
One law lord argued A “cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer" could insist something similar
“The Chief Constable shld not compromise the officer's privacy by revealing the matter in question when there is no good reason . But, equally, an officer cannot insist that the CC should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential.“
The case did establish that someone who is born male could be treated as female in certain circumstances, and the law lords were clearly anticipating the Gender Recognition Act.
The potential objections of women to being searched by someone male were certainly not brushed aside as unreasonable. But the law lords took a view that, in this case, what a suspect didn’t know wouldn’t hurt them.
It does not set a precedent that women can not object to sharing intimate spaces, being searched etc… by someone male. Or that orgs offering single-sex services (be it a gym changing room or a rape counselling service) should not endeavour to provide a male-free environment.
It is notable that in considering the opposite scenario (could A search men?) there was never any Q - all agreed that since “to all intents & purposes she is a woman, a man might reasonably object ” (no need for him to be a Muslim, or to have a community leader speak 🙄)
An interesting window into what they were thinking: Baroness Hale opined ‘it would not be rational to object to being nursed by a trans person of the same sex’ , as this was not similar to being nursed by ‘a heterosexual person of the opposite sex,
She clearly did not anticipate that the trans umbrella would expand to encompass the idea that women can have penises, and that heterosexual men who transition to identifying ‘lesbians’ with male bodies could demand access to spaces where women expect privacy.
It is important to note that the case was about whether A shld have been denied employment by the police, not whether A should have been treated in every way as a woman. The law lords agreed that it could have been proportionate to employ A but make other arrangements for search
Nor does the case support the idea that is now promoted of absolute access combined with absolute confidentiality in every circumstance. It anticipates that organisations have to balance the privacy and dignity of others with the right to equal treatment by transsexuals.
There is nothing in the case that suggests that @YHAOfficial @Girlguiding @Swim_England @cityoflondon @FA @metpoliceuk @hmpps @EastSussexCC are doing the right thing in disregarding women's reasonable privacy and dignity
Where this case has been most influential is that the language about treating transgender people who are “visually & for all practical purposes indistinguishable” as the opposite sex was adopted into the @ECHR into their statutory Code of Practice, tho it isnt what the EqA says
This rule is inhumane and unworkable in most situations. It suggests that someone's rights to not be discriminated as woman depend on how they dress, whether they are wearing make-up and how much depilation they do.
So it has morphed into the idea that people should be treated as their ‘acquired gender’ as long as they are making some visual effort, even if in practice they are NOT indistinguishable from someone of their actual biological sex.
And this then has morphed into the idea that anyone w the protected characteristic of “gender reassignment” (which does not necessarily entail any visual changes whatsoever) shld be able to access single-sex spaces of the opposite sex, and that anyone who opposes this is a bigot.
The lesson taken away from the W Yorkshire case is the exact opposite of the law lords careful deliberations on org's responsibility to treat transsexuals equally to non transsexuals of the same sex AND respect other men & womens rights to dignity, privacy & non-discrimination
