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.
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.
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.
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/…
"(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/…)
For trans people without a GRC it depends on what their legal sex is.
- 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.
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.
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.
b) The EHRC statement is about *sex* discrimianation, not *gender reassignment* discrimination, which Green and Brook were about.
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.
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.
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.
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.
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.
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.
We don't have organised, strategic legal campaigns, we don't have money, & our activists are very vulnerable.