Thread by @MForstater

WESC - first up Robin Moira White

GRA is outdated - it was mainly about equal marriage.
It confuses sex and gender

Karon Monaghan - Sex is about biology, gender is the social aspects - it conflates them

KM in relation to the criteria --there is a lack of clarity - "living in the required gender" - very unclear what that means? How to assess that? Danger of falling into gender stereotypes

Robin - i had no difficulty spotting the point when I stopped living in one gender and not the other - there is a social aspect and a legal aspect. defining the edges of that is not easy.

People applying don't find it difficult to define - pronouns, name, bills etc...

I don't think it is particularly difficult.

Any definition is in some respects based on stereotypes

Naomi Cunningham - GRC cannot literally change someones sex and it cannot govern social aspects.

So what does "for all purposes" mean in s9 ?

It would be clearer and more obvious if the fact that it is limited was right up front - there are legal exceptions

Robin:

Exceptions for medical treatment, car insurance " a medic may need to record properly"

Inheritance isnt altered by the gender recognition act

Karon - more controversial exceptions are the ones that apply because of the Equality Act.

Q: How does it operate in relation to parental leave

Karon: I don't know but one assumes that your sex as well as your gender is changed by GRC

You can't be the father if you are the mother (Freddy McConnell case)

Robin: has advised employers that transwoman get the maternity leave and transman get paternity leave

Karon: I don't know - the woman who has given birth ought to have all the rights that maternity would give them

Karon: if one is going to liberalise GRCs that should not impose on maternity rights.

Robin: the employer wanted to do the right thing. The two employers agreed something they were all happy with. If we got into litigation the situation is complex

Naomi: I would be very surprised if the legal entitlement doesn't stay with the person has given birth! (me too!)

It is a sign of how our expectations have drifted since it was drafted. It was all but impossible that this was even considered as a possibility in drafting the GRA

MP: There is adoption, surrogacy, so many ways to become a mother without giving birth.

What about leave for fertility treatment?

Robin there is no case law or litigation in this area. Mainly employers are trying to do the right thing

MP: should the living in role be removed?
Karon: yes it is problematic because of gender stereotypes. I don't know why you should have to show.
If the cost is to show "this is how women are" - in entrenches social norms.
Why should they have to wait 2 years.

Robin: Why should you have to wait. And you can't apply till you are 18. Why do you have to wait.
Sally from the Law Society : we would support its removal for the reasons already stated. In Ireland there is no requirement

Naomi - what does living as a woman mean? Hair, makeup, stereotypes?

Should it be till death?

Robin - I'm sure there should be some formality, but a person should have a route back. It is possible to change their mind later.

Naomi - we don't think it should be removed - the whole idea was that a very small number of people should be able to transition. But it does make serious demands on the rest of society. It should be intended for life. Even though you can detransition (like a divorce).

Karon - yes it should be intended to be intentional. Although people may detransition.

MP: what other legal professionals might sit on the panel?

KM: the prior question is what are the criteria and then who are the right people to sit on the panel

Sally: The panel is easy to work with but there is some concern that the panel members are anonymous

Robin - you don't have to be assessed by a panel "am I gay enough?"

Naomi chips in - MP says keep it brief.

It would be bad if there was a requirement to appear in person. But there could be a right to appear in person.

MP Angela Crawley - is S22 (confidentiality) workable. Asks Karon. Karon defers to Robin.

Robin - 5000 fine for disclosing info, but discrimination is only a civil matter. There have been no prosecutions.
I don't think the criminal law has a place in this part of our society.

Robin - it should maybe only be a criminal offence if done deliberately.

Sally - it should be a criminal offence. If it just became a civil offence it would deter people. Tabloid media would not be deterred.

Naomi - we agree with Robin there is no place for criminal law. It creates a widespread #chilllingeffect that it is an offence to reveal if someone is trans. People know. So the result of this is although everyone knows people are nervous of mentioning it.

In 2009 the NHS set up systems to record sex and gender.
GPs change a patients recorded data on request. They may treat them wrongly it puts them at risk.

It creates problems for running single sex services. It is perfectly lawful to have a women only yoga class ...

S22 makes it difficult to apply the single sex exceptions.

Angela chips in

Naomi: it causes fear, it causes justified fear. HR people are terrified. People are fearful of doing the things they ought to do.

Angela - how do you reconcile the distinction between the definition of transphobia - someone acting in a hateful manner to someone is trangender - or hate crime - or the use of..... let me find the right word. ...

.... Robin: let me jump in: S22 is supposed to protect data, not to be about someone expressing a view in the public domain.

Angela: OK . Thank you Robin.

MP are only those with a GRC protected under the EqA

Karon: no I don't agree with that - gender reassignment is protected in the Equality Act, like race, disability.

Sex is defined sepperately - being a man or being a woman - being male or female.

Karon - how does a trans person with a GRC will generally be treated as a man or a woman

But whether they have a GRC or not their are exemptions that might be applied rarely even if they have a GRC

They may apply in circumstances like womens refuges, womens sexual health services, but they are rare. they don't automatically apply . they have to be assessed.

There isn't a hierarchy.

Naomi - I part company with Karon on the exceptionality. The single sex exceptions are used all the time - toilets, changing rooms, swimming sessions, yoga class any single sex space . The ability to exclude male people from women only spaces or services - utterly commonplace

They are all founded on biological sex.

MP tries to stop her.

Naomi goes on - the legal formalities are different but the answer is the same - a certificate does not make a difference to the dignity and privacy of the women.

The reason for the exceptions is to do with biological sex. the reason that someone has certificate that someone is experienced differently.

This is about consent. To override that is seriously concerning.

Robin - Working out who is in which sex for the act is unclear - it needs litigation or legislation

MP: Does the Equality Act protect non binary people.

Robin: it was argued that non binary people were not protected. It is only a first instance case. Depends on a case going to a higher court or additional legislation

Karon: There is problems with introducing it on the Equality Act - would have to make sure it does not impinge on the exceptions for trans people and females and males. (not withstanding that Robin doesn't agree). How would it work for single sex services.

MP : you say that the rights of trans people must be balanced with the right of freedom of speech .

Naomi: there is a worrying definition of transphobia as disagreeing with TWAW, defending single sex spaces or disagreeing with self ID. It is very troubling.

The gender critical position is a statement of the law as it currently is. It is extraordinary that defending current law is seen as tranphobic eg. Edinburgh University policy - how does that fit with academic freedom or freedom of speech?

Sally : Baroness Hale recognised the deep need of trans people to live in their gender.

When Legal Feminist say that people should be able to express their perception of a person could they repeatedly misgender an employee at work ?

Naomi asks to respond. MP says no.

MP - Question on gender reassignment, transsexual, transgender.

Robin - people don't like these terms. They are outdated - sexual appears to mean sexual orientation. We like to talk about gender confirmation. Thats what the law says but shouldn't be used in workplace

Should we change to gender identity "Taylor v JLR has already done that". Widening the characteristic makes it harder for employers to get it right.

Karon -Taylor is a first instance decision. I know it was a victory for you but I don't think the law has changed. It would create tensions. I do want to come back on what Naomi said. There is a difference between free speech and harassment. It is one thing to deliberately harass

It is quite different to expressing gender critical views. Harassing means undermining dignity. It does not mean that there is no space for discussion and debates. And I see Robin nodding. I would want to express those views myself.

Naomi: there is a difference between harassment and free speech. Of course we do not argue that people should be free to harass employees. That should not be described as transphobia.

The problem with replacing transssexual with transgender is the extraordinary range of gender performance and behaviours, including cross dressing, and erotic cross dressing - that is far too wide to these purposes.

Next up Kim Johnson MP asks about legal risks for companies for companies that have signed up for the Stonewall Diversity Champions programme

legalfeminist.org.uk/2021/02/04/shi…

Organisations have to rewrite their policies to meet with Stonewall's approval. Stonewalls understanding of the law is erroneous in many respects - suggest that it always necessary to give self identifying trans people access to facilities for the opposite sex.

They are vulnerable to judicial review - Oxfordshire Council Toolkit was challenged by teenage girl. It was withdrawn.

They may face challenge to their decision to sign up to Stonewall's scheme - it may impact on their policy and operations. It is not just HR.

Employment discrimination risk - indirect discrimination against female employees - by withdrawing their access to single sex toilets et.c indirect religion, belief, sex.
And more seriously the risk of laying your service users exposed to assaults or injury -eg contact sport.

If an NHS trust allows its policies to be Stonewalled it may expose its trans staff to the risk of being provide to a patient who has consented to an intimate procedure - a horrible risk for both the patient and the trans health care provider.

Next Elliot Collburn MP - Q about the occupational requirements to those with and without

Karon - the Equality Act does not distinguish between those with a GRC and those without. The law permits them to be excluded whether they have a certificate or not.

It is a real issue - people assume that that trans people should be treated differently whether they have a GRC or not. That is not the test.

Robin: as a practical example - the supermarket test - on a Saturday morning if I am caught short in the women's lavatories - it would be disproportionate to prevent me doing so. But it would be appropriate not to have me answering the phone in a woman's service.

Karon - we have to move away from is it rare, is it not rare. It cannot be based on prejudiced. There are criteria. It is not unusual or rare.

Naomi - exceptions, not exemptions. They are not something special that have to be applied for. The exceptions apply when they apply.

Elliot: does it rely on the disclosure of trans status.
Karon: there may be circumstances when the status of trans person is disclosed. e.g. a sexual health counselling service. They know the exception may apply, they may pass on that information

Karon - a more general issue - how do you know? If you only want a female staff member.

If i applied for a job and said i could speak fluent French, if I can't i could lose my job. There may be circumstances where you could be prosecuted. Sometimes it will be obvious.

Naomi - this is also where the #chilllingeffect of S22 - there is the idea that you cannot set rules and can't ask people.

You are entitled to set rules, and to ask. If they don't tell you then it is deception. They can dismiss you for gross misconduct.

MP: Do employers understand this?
Sally : yes big employers they would probably have quite a good idea. It helps to have good good guidance. EHRC and GEO say employers shouldn't ask for GRCs, maybe they think they can't ask.

MP: Explain the single and seperate sex exception works.

Naomi. They are commonplace, and ought to be straightforward to operate. If a space is for women then only women will access it.

where there is justification - that is on grounds of biological sex.

MP: what does proportionate means to a legitimate aim mean?

Robin: I am greatly familiar with female toilets. How would it proportionate to exclude me. It doesn't meet the tests.

Naomi: When it comes to justifying it may be required to show the exclusion is a proportionate means to a legitimate aim. Parliament has decided there is good reason - it is not difficult to show there is a reason. Usually the best way is to provide "gender neutral" alongside

Karon: EHRC & GEO could provide guidance. There is virtually no guidance. The guidance is confused. There is no examples of where it is legitimate to exclude trans people - for those people who have to apply the exception. There is a #chillingeffect.

There needs to be very clear guidance, in language that is accessible.

People need to feel confident in doing or not doing what they should do

Nichola Richards MP: Question on self ID

@k21fem says self ID not so much of a problem - currently it requires diagnosis & 2 years living. Diagnosis is highly contested. Medicalises what some ppl think is not a medical issue. It is v. intrusive. Why do we need pple to prove it?

There needs to be safeguards, there needs to be a commitment.

The most important thing is what are the consequences? The exceptions in the EqA need to be properly understood. If one self IDs there is no special protection under the EqA

Much more important is what does the certificate mean?

Robin: why does your personal sense of self have to be medicalised? There should be a formal recognition. Is there really a difference between me and a natal woman in a particular circumstance ? That is the question.

Sally - the Law Society - being trans is not a mental illness - being trans is a question of your gender identity not aligned to your "sex assigned at birth".

The debate has brought to the fore confusion about how the single sex exceptions operate in the act.

Naomi -we are very troubled by making qualification for a GRC based on self ID. Inconguence with gender stereotypes is not a medical condition. but Gender dysphoria does have a medical diagnosis. A profound unhappiness w yr sexed body in order to transition is a medical condition

It isnt coherent to say that this isn't a medical matter. That doesn't mean a stigma. Is there a diagnosis? To proceed on the basis on self ID alone will be able to massively expand the scope and number of people who could have a GRC.

The law was to accommodate a very small number of people with a rare medical condition - you are looking at expanding it to the whole transgender umbrella, including cross dressers, people who don't subscribe to gender stereotypes. Hopelessly wooly and dangers for women.

It makes it more complex to exclude the holder from single sex services. Small cash strapped charities may be existentially challenged. Will have serious consequences.
It is seriously threatening.

Q: different interpretation of the word woman in the Equality Act - should the EqA be clearer.

Karon - it defines sex - man or woman - and equates this with male or female. They are biological characteristics. It is clear. Naomi agrees

Robin. They might agree, but the word biological doesn't appear in the Act. What is the point of the definition. If it is limited to biological sex. Are we going to take away a perception that someone is perceived in a particular way. I don't think there is a definition in there?

If we strengthen "biological" are we going to exclude transwomen from circumstances where they shouldn't be excluded. What are the consequences?

Sally : i probably endorse what Robin says. There is a legal difference of opinion. If there is a move to define sex biologically there should be consultation on that. If some has reassigned their gender they have a desire to live as that gender

Bell Ribeiro-Addy ; should unspent convictions be a bar to a GRC.

Naomi. yes sexual offences that involve being male should lead to revocation of a GRC.

Robin. I am not a criminal practitioner. Offenders can turn themselves around. It would be cautious of departing from that

Living as you ought to live might be a way to remove a tendency towards criminal behaviour.

Sally: this is not something we have considered.

Karon: its not something i've thought about. There are genuine concerns in prisons about TW who have committed sexual offences as men.

The exceptions in the Act apply to prisons. More workable is that people understand the exceptions. Trans women with a history of sexual violence are not always entitled to be in the female estate.

Naomi - commends the evidence of Professor Michael Biggs.

Q about the defintiions
Karon - they are defined. Female = woman. Sex is the category. It is well defined.
I know Robin disagrees. There would no need to add female and male is so that every body knows what the law means.

Parliament has made it clear that when they say sex means men and woman.

We disagree on this.

Robin - if what we do is enhance definitions or expand them we need to recognise the consequences of not doing it.

Robin: If parliament doesn't make law, the courts will.

There was not debate about that bit of the Equality Act when that went through Parliament

Naomi - it would be hopeless to try to introduce definitions of non binary, gender fluid. There is no need for it.

The Equality Act deals with discrimination based on 9 protected characteristics.

Before you protect a particular group you should start with clear evidence that that people are discriminated on that basis. There is no evidence that there is a social problem.

The use of the words sex and gender in the GRA is random.

Sally - there is no point having statutory definitions unless they are protected.

The use of transsexual and gender reassignment is outdated.

Nonbinary and people with trans identities not covered to cover similar issues of discrimination and harrassment at work.

We haven't considered what the unintended consequences of protecting gender identity would be.

______

Thank you to all the witnesses. Order. Order