Thread by @AdamWagner1

Is it legal to include/exclude transgender women from swimming in a women-only pond in Hampstead? (thread) /1

bbc.co.uk/news/uk-englan…

As with many issues involving trans rights, currently this is controversial and there are a number of different and strongly held positions.

So, without fully wading in 😬, I thought it would be useful to explore the kinds of legal arguments which are likely to apply. /2

You might want to read my general intro to the Gender Recognition Act/Equality Act which I wrote discussing the proposed changes to the GRA last year - explores how the two laws interact /3

https://twitter.com/AdamWagner1/status/1052510814383497216?s=20

The starting point is that the Equality Act says gender reassignment is a ‘protected characteristic’, and ordinarily you can’t discriminate directly or indirectly when providing a service (as the council is with the pond) /4

legislation.gov.uk/ukpga/2010/15/…

However, there is an exception to this under Schedule 3, Part 7, which allows for separate and single sex services - and although this isn’t 100% clear, it is almost certain that when it talks about “sex” it doesn’t mean the same as “gender” /5 legislation.gov.uk/ukpga/2010/15/…

What that means is that when people change gender (under the process set out in the Gender Recognition Act) they don't become a different sex for the purposes of the Equality Act. I am not making a moral point here, just describing what I think the law is

So, the effect of Sci 3, Pt 7, para 26 is that it is possible, legally, to provide separate services for persons of each sex, or different services, if it would be more “effective” and “the limited provision is a proportionate means of achieving a legitimate aim” /6

There is an example of a counselling session for victims of sexual assault provided in the explanatory notes to the act /7

https://twitter.com/AdamWagner1/status/1052512286680776704?s=20

Here is part of the Equality and Human Rights Commission guidance on the topic, which specifically mentions women only swimming and reflects the language being used by Camden Council that each case will be considered separately /8 equalityhumanrights.com/sites/default/…

What does “proportionate” mean?
1 Is the objective sufficient important to justify limiting the right?
2 Are measures connected to the objective?
3 Are the objectives no more than necessary to accomplish it?
4 Do they strike a fair balance between rights of individual/community?

👆Those are the four questions which the courts now ask when considering proportionality, and the answer to each needs to be "yes" for the measure to be lawful

(see supremecourt.uk/cases/docs/uks…, para 172) /10

Here, City of London Corp. won't have to justify providing separate sex services under Sch. 7 exception (they are *including* trans people), but others will argue that the measures indirectly discriminate against them, so City will still have to show they are proportionate /11

I think that the case of Orthodox Jewish women may be interesting - religious people have generally lost in courts re refusing services to LGBT people, this isn’t that and I wonder if the council have properly considered whether there is a compromise /12

https://twitter.com/JasonBraier/status/1131689907729027072?s=20

There are a number of different rights that interact here (I don’t believe it is correct to call them “competing” - see my ‘feast not pie’ tweet

https://twitter.com/AdamWagner1/status/1052516346976702464?s=20

/13

City of London will have to show that it has rationally considered the rights of (non trans) women, domestic violence victims, religious people/whoever else may have an interest in this decision. This will include examining their consultation to make sure it was effective /14

Relatedly, in making decisions the council must comply with the public sector equality duty which requires it to have "due regard" to eliminating discrimination. When there are different rights in play, it must give due regard to them all /15
legislation.gov.uk/ukpga/2010/15/…

If this case comes to court it will be considered on its very particular facts, with reference to the practicalities of providing separate services, the impact on different groups etc. It will be a useful legal exercise as the law isn't clear /16

If I have anything wrong or you have comments please let me know /17

A few people have commented that a key issue here is how City of London implement the policy of allowing trans women to swim. Their overarching policy is here, not specific to the pool /18 democracy.cityoflondon.gov.uk/documents/s113…

This isn't quite 'self ID' in that it doesn't say that people will be asked what sex they are and their answer will be determinate. But it does suggest that there will not be a high bar for people to reach to show they are a trans person /19

But that reflects what is in the Equality Act 2010, s.7, which protects anyone who is "is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex" /20 legislation.gov.uk/ukpga/2010/15/…

Ultimately, there are separate questions which shouldn't be muddle up:
(1) Is it proportionate and non-discriminatory to provide women's only services which are *always* trans-inclusive?
(2) If NO then is there a proportionate way to include trans and other groups in services? ..

(e.g. a number of different services at different times to accommodate different groups)
(3) In any case, what is the appropriate policy for identifying trans women so they can use women's only services?

Also

https://twitter.com/AdamWagner1/status/1131862237700870144?s=20