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Trans People and Single Sex Spaces

A long thread explaining the law for trans folk, to help understand what our rights our and how they're under threat.

Technical points and clarifications from trans folk and accomplices are welcome! I'll make this into a blog post later.
1) HOW DOES UK LAW WORK?

There are three levels of law I'm going to talk about: statute, case law and the statutory code of practice. All three interact to establish trans people's right to use single sex spaces.
Statutes are the laws passed by Parliament, that MPs vote on. Statute is the basic foundation of law in the country. The two most relevant statutes are the Gender Recognition Act 2004 (GRA) legislation.gov.uk/ukpga/2004/7/c… & the Equality Act 2010 (EA) legislation.gov.uk/ukpga/2010/15/…
Case law is the law as decided by judges in legal cases. Case law interpets statutory law, working out all the complications the statute doesn't cover. Case law sets precedent, so judges deciding cases in equal and lower courts follow previous relevant judgements.
A lot of the relevant cases can be found at pfc.org.uk/caselegalgende…. Press for Change used "test cases", carefully planned legal suits, as a tactic for changing the law in the UK. I discuss some of the relevant cases here: medium.com/@harryjosiegil…
Finally, there are statutory codes of practice, which provide detailed interpretations of laws for peeople and organisations. These are not law, and are not legally binding, but they do have legal force in a court case. Here's the most relevant one: equalityhumanrights.com/en/publication…
Essentially, if you get sued for discrimination, and you can show that you were following the statutory code of practice (SCoP), that forms a strong legal defense. But judges could reach different conclusions anyway, and so case law could overrule the SCoP.
2. WHAT SEX DOES A TRANS PERSON HAVE IN LAW?

A trans person with a Gender Recognition Certificate (GRC) has the legal sex on that GRC, their "acquired sex", "for all purposes" (GRA 9.1: legislation.gov.uk/ukpga/2004/7/s…). This is completely clear and incontrovertible.
But what about a trans person without a GRC? What determines their legal sex? We know from case law prior to the GRA (e.g. Croft v Royal Mail Group 2003: swarb.co.uk/croft-v-royal-…) that legal sex may at some point change from sex registered at birth, but not what that point is.
Some have argued that a trans person's legal sex is fully determined by their birth certificate until such time as they get a GRC, but cases like Croft 2003 suggest otherwise. It will take case law to work out the details. I'll go more into the possibilities below in part 4.
3. HOW DO SINGLE SEX SPACES WORK?

The Equality Act 2010 (EA) outlaws sex discrimination: you can't treat people differently because of their sex. But this causes a problem if you want a single sex space, which requires discrimination. So, exceptions: legislation.gov.uk/ukpga/2010/15/…
That is, it is *allowed to discriminate* for the purposes of having a single sex space, if you meet the exceptions in the EA. The way to think about this is, it's a protection from being sued. If you can say "this specific discrimination is allowed in the EA", you can't be sued.
Some people describe this as "a shield, not a sword". That is, the EA gives you a weapon to sue for discrimination, and also gives you a (very limited) shield to protect against suits. There is no *positive* right to single sex spaces, only legally permitted discrimination.
Note that because trans people with a GRC have their acquired sex in law, these "single sex exceptions" -- exceptions from counting as sex discriminatrion -- include trans people with a GRC by default. I'll get to trans people without aa GRC in a bit.
The EA also bans discrimination on the grounds of gender reassignment. Gender reassignment is a "protected characteristic" that *all* trans people have at any stage of transition (EA 1.7: legislation.gov.uk/ukpga/2010/15/…), it explicitly does not rely on any medical process.
The term is confusing! But it does create a general protection for a person who "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 by changing physiological OR OTHER attributes of sex."
But, as with single sex exceptions, there are gender reassignment exceptions. There are cases where it is legally allowed to discriminate against trans people, such as in sport (EA 14.195: legislation.gov.uk/ukpga/2010/15/…).
Note that the exception which allows sex discrimination, & thus single sex spaces, is separate from the exception which allows gender reassignment discrimination. These are different bits of the statute! So when people say "single sex exceptions" they are often mixing up the two.
So when can you discriminate? When it is:

"(a) a proportionate means of achieving a legitimate aim, or

"(b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic."

(EA 14.193: legislation.gov.uk/ukpga/2010/15/…)
You will note that that is a bit vague. It is down to case law and the statutory code of practice to tell people what "a proportionate means of achieving a legitimate aim" is.
So trans people with a GRC are included in single sex spaces by statute, & can only be excluded when there's "a proportionate means of achieving a legitimate aim", which applies whether or not they have a GRC.

For trans people without a GRC it depends on what their legal sex is.
So, if you're legally male, you can be excluded from single sex spaces by default. If you're legally female, you can be excluded if you also have the protected characteristic of gender reassignment (i.e. are trans) and it's proportionate and legitimate to do so.
But there are problems for this! How can you tell that someone is legally male without either asking them for legal evidence, violating privacy rights, or making a prejudiced judgement that risks gender reassignment discrimination? So, on to the SCoP.
The Statutory Code of Practice advises that single sex spaces should include *all* trans people by default (SCoP 13.57-60: equalityhumanrights.com/sites/default/…). It includes some examples of exceptions, but says these must be as restrictive as possible.
Remember, the SCoP is a non-binding interpretation of the law which has weight in court. Its function is "follow this and you're protected against being sued". It interprets the law based on the intentions of the law, advancing equality.
It could be that a legal case changes this interpretation, or widens the circumstances which are considered "a proportionate means of achieving a legitimate aim". But until then this is our best guidance.
In summary:
- By statute, trans people with a GRC are included in single sex spaces by default
- By code of practice, trans people without a GRC are included in single sex spaces by default
- There are strict exceptions to both which allow gender reassignment discrimination.
4. SO WHAT HAS HAPPENED IN CASE LAW?

To the best of my knowledge, there have only been two cases relevant to trans people's sex since the EA came into force: Green v Secretary of State for Justice 2013 (casemine.com/judgement/uk/5…) and Brook v Tasker 2014 (lawcentres.org.uk/policy/news/ne…).
Green 2013 was a case about a trans woman prisoner without a GRC who wanted access to wigs and other gender affirming gear.

The judge ruled that this was not gender reassignment discrimination because she was not a woman, and thus not being treated differently to other women.
The judge argued that until she has a GRC she is legally a man. That looks bad for us! If this case were more broadly applicable, it would say that indeed only birth certificates and GRCs determine legal sex. But there are possible problems with this.
a) The reasoning may only apply to the highly restrictive prison setting.

b) The reasoning would render the definition of gender reassignment in the EA redundant, and could be challenged on these grounds.

But until a new higher case sets a new precedent, this case is a problem.
However, along comes Brook v Tasker 2014. This is a case about a trans woman being thrown out of a women's loo in a pub. She also sued for gender reassignment discrimination and won: lawcentres.org.uk/policy/news/ne…
This is a County Court case, and so the full judgement is not on the public record and does not set precedent. However, I have confirmed personally with the lawyers who brought the suit that the question of whether or not the woman had a GRC never came up in court.
So the judge in Brook 2014 did not consider that the judgement in Green 2013 applied to the case. Interesting! You don't need a GRC to claim gender reassignment discrimination after all. Perhaps Green 2013 indeed doesn't apply beyond prison after all.
Green 2013 was decided in a higher court than Brook 2014, and so that precedent should have been relevant, but wasn't. Brook 2014 is a low court and does not set precedent for anyone, but is a strong indication of what might happen in similar cases.
The last thing to mention here is a statement from the EHRC, who wrote the SCoP, which could cause problems for trans people: equalityhumanrights.com/en/our-work/ne…
The EHRC have stated that trans women without a GRC are male for the purposes of sex discrimination, with the implication that they could be excluded from single sex spaces by default. However, this is not yet law, or even legal advice! Things to note:
a) The SCoP has not changed, and so its legal advice is still the strongest interpretation a court can use: an EHRC blog is nowhere near as strong

b) The EHRC statement is about *sex* discrimianation, not *gender reassignment* discrimination, which Green and Brook were about.
Remember, *all* trans people are protected against gender reassignment discrimination, and trans people with a GRC are protected against sex discrimination by their acquired sex -- and trans people without a GRC might be, we just don't know.
So actually, maybe the EHRC statement doesn't mean that trans people without a GRC are excluded from single sex spaces by default, only that they can't, for example, sue for unequal pay discrimination? We're just not sure, because it's a blog, not legal advice! It's frustrating.
So, there is no definitive case which determines whether trans people without a GRC have their acquired sex in law yet, or what a "proportionate means of achieving a legitimate aim" to justify gender reassignment discrimination might be. For now, the SCoP is the best guide.
5. SO HOW COULD TRANS PEOPLE'S RIGHT TO SINGLE SEX SPACES BE CHANGED?

a) New statute passed by Parliament
b) New case law decided by a judge
c) An updated SCoP from the EHRC
d) Social pressure

All are existing lines of attack. Let's look at each in turn.
a) Are they going to pass a law banning trans people from single sex spaces?

This would be the longest, hardest and most expensive way to take away trans people's right to single sex spaces. It would be a years-long fight in Parliament to make it happen. But it's possible.
To do this, Parliament would need to pass a new law about trans people that overrules or amends either the GRA, to change the legal purpose of a GRC (legally grants your acquired sex for all purposes), or the EA (protects trans people from discrimination, establishes exceptions).
Creating new anti-trans laws in right-wing legislatures is a tactic used by the religious right in the US and Hungary, and the American right are funding UK anti-trans campaigns. But they have nothing close to that Parliamentary strength here, and it's a costly line of attack.
b) So will anti-trans campaigners bring a lawsuit to try and change case law?

I think this is very likely. It's a favoured tactic of the American religious right who fund campaigners here, & anti-trans campaigners have been practising cheaper & less consequential suits already.
When you look strategically at the legal cases so far -- an Employment Tribunal & a Judicial Review, both about free speech stuff -- you can see that they're a way of building a movement and testing key legal principles without creating precedent. They're looking for weak points.
The new case, about young trans people's access to healthcare, is another Judicial Review, but higher profile. They've picked a sensitive area over which there's public controversy with a sympathetic protagonist: they're building a campaign.
So, if they get successes and the money keeps coming in, they'll be looking for a sympathetic case around single sex spaces that can test their legal principles: a vulnerable woman who says she can't use a crisis service because it includes trans people, for example.
At the other end, trans people could build a campaign to strengthen our legal right to single sex spaces through a test case. We know trans people are discriminated against all the time, but we need funding and a good test case to show that it's unlawful.
c) But what if the Statutory Code of Practice changes?

Anti-trans legal cases have not been very successful so far, and they're expensive. But with the Tories in power and keen to appeal to a reactionary base, softer pressure could be applied. I'm worried about the EHRC.
The Tory Government is planning to "reform" the EHRC to "increase its accountability to the Government" and "to improve its effectiveness and value for money". assets.publishing.service.gov.uk/government/upl… And the EHRC chose not to investigate the Party for islamophobia. So is it being co-opted?
Anti-trans campaigners lobbied the EHRC extensively over the SCoP and language on its website, which is what led to the confusing statement I linked to above. So I'm worried that this is a weak point that campaigners, with Liz Truss, might seek to attack.
This could look like a new Statutory Code of Practice that supports less strict use of exceptions from gender reassignment discrimination, or just further "clarifying" statements that encourage organisations to discriminate. Watch out for both.
d) What role does social pressure have in all this?

For several years now anti-trans campaigners have been publishing misleading advice, sometimes claiming to be legal advice, pushing organisations to exclude trans people from single sex spaces.
The purpose of this is to make organisations feel like they can discriminate, and to make trans people feel unsafe in single sex spaces: they want to exclude us by social pressure if they can't do it by law.
I suspect that anti-trans campaigners also want to create a situation where an unfunded and poorly-backed trans person is excluded, sues for discrimination, and loses, but perhaps that's too speculative.
Their campaigning is starting to have an effect. Last year's Center Parcs case is the first incident I've seen when misleading legal language from their advice is used: pinknews.co.uk/2019/10/30/cen… Meanwhile, Baroness Nicholson is using the same tactics from on high.
So far, discouraged by the SCoP and by trans-supportive campaigning, companies which have attempted similar moves have held strong, as have public bodies. David Lloys reversed a trans-exclusionary policy rapidly (pinknews.co.uk/2019/03/14/dav…). But Center Parcs stuck, which worries me.
6. WHAT CAN YOU DO ABOUT ALL THIS?

So, to finish up, here's some thoughts from me on stuff you can do.

a) Learn your rights and share the info! We need accurate, accessible information on trans accessto single sex spaces to counter the social pressure and disinformation.
b) Get ready to support a legal fight. We got existing trans rights through fighting for them in test case after test case. We're going to need financial and social support to protect and extend our rights the same way. And we might be fighting on the defensive.
c) If you're doing lobbying & letter-writing campaigns, think strategically, because that's what anti-trans campaigners are doing. We're facing an organised campaign. Appealing to authority & for recognition can't beat that. What are their weak points, & how can we exploit them?
What trans people have is very strong cultural infleunce, very good and broad online networks, and decent support on the liberal left and in the public and NGO sectors.

We don't have organised, strategic legal campaigns, we don't have money, & our activists are very vulnerable.
The Truss statements have sparked anger and organisation, and national-scale trans activism is building again. But so far it's been very focussed on recognition and appeals to authority, and it lacks infrastructure and strategy. That's what we need to win and keep winning.
Lastly, it's worth remembering that what anti-trans campaigners can do to you is very limited. You're still going to pee where you want. You're still going to have a rich, amazing life. You can still be in strong and loving trans community. That's why we'll win.

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