Thread by @SexMattersOrg

Today @AnnMSinnott of Authentic Equity Alliance has a contested permission hearing in judicial review of @EHRC

We should hear both sides' barristers outline the legal issues which would arise in a full hearing, if permission is granted.

Follow this account and #AEAvEHRC

We have formally requested permission to live tweet proceedings.

The hearing is due to begin at 10:30 am.

Mr Justice Henshaw joins us.

The judge grants permission to live tweet from proceedings, bearing in mind the need for accuracy.

Counsel for AEA (A)

Counsel for EHRC (R)

A: we say the approach is whether there is an arguable ground for judicial review with a reasonable prospect of success. It's a low threshold.

Issue in case is the lawfulness of the 13.5.7+ of the statutory code: "Gender Reassignment Discrimination & Separate & Single Sex Services."

The claimant AEA says the approach to the law is mis-stated in the guidance. There is a real issue re spaces for vulnerable women which EA 2010 recognises as an extension to prohibition on discrimination.

The risk is that women's rights enshrined in law will be undermined.

Refers to summary grounds for judicial review.

Summary of AEA's case for JR: key issue is importance of proper guidance.

J: I have read the grounds in full.

A refers to Ann Sinnot's statement: "It is apparent from these policies that there is a widespread confusion regarding single-sex spaces capable of undermining women's sex-based rights."

What is a single-sex service? When reading the evidence, AS noticed that as soon as you say 'transwomen are women' sinclge-sex spaces become mixed-sex, and thus unsafe for women with PTSD triggered by males.

One organisation summarised the single-sex exceptions in a box, a neutral description with no exceptionality language. It then commented on the code of practice (statutory guidance from EHRC). The COP must be taken into account in legal proceedings.

Parallel guidance on transgender-identifying males mirrors the guidance on sex.

quote from the Code: If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.

We say that this element of guidance ("...gender role") from EHRC is wrong in law. They misunderstand the difference between transexual male with and without a GRC. One without a GRC remains legally male.

The legislation attempts to preserve the single sex exemptions, and that excludes legal males including transwomen without a GRC.

AS's statement deals with the effects of the guidance under 'Why Single-Sex Services Matter to Women.' By admitting transwomen to women-only services, it undermines the purpose of the single-sex exemptions.

Protection of women's dignity, avoiding women feeling disturbed and threatened.

Incorrect EHRC guidance has been relied upon by service providers to open women's spaces to males, departing from the law.

A: our complaint is that because the guidance misunderstands the protection the single-sex exemptions are supposed to provide, making them disappear, that's a complaint about the code itself.

J: if providers have reason not to admit a transwoman, they can rely upon the exemption?

A: but this is to misunderstand the force of the single-sex exemptions for reasons I will set out.

It is more complex when it comes to males with a GRC, who are treated as "their acquired gender" which--although debated--is taken to mean 'sex.'

J: they are treated as the sex they have acquired, as it were?

A: correct. But now they're saying "I am female" so, on what basis are services excluding them? They can exclude both males and transwomen.

Schedule 3 para 28 Equality Act 2010 allows this mechanism.

If you have objectively justified excluding males, under the para 26-27 exceptions, its when an individual could have reasonable objections to the presence of a male. Perfectly understandable. If you follow the logic of that, if the

objectionable factor is their maleness, there is nothing left to justify. TW can be excluded on basis of their maleness.

Men and women are defined in a binary manner in the explanatory notes, which I will come to.

The guidance is unlawful because it misunderstands and mis-states the law. Both parties agree that if the COP contains errors of law it is amenable to judicial review. In which case the burden is on me today to demonstrate, with a realistic prospect of success, that there is

an error of law in the COP.

The interpretation was summarised by the select committee.

The interpretation had the effect of making a single-sex service mixed sex.

At the heart of the error is the fundamental distinction between transexual persons who do and don't have a GRC.

Those without a GRC are legally of their birth sex (not 'gender').

It won't be direct discrimination on gender reassignment discrimination on basis of transsexualism, not indirect discrimination, because single-sex services are already justified as a legitimate aim.

Single-sex services and spaces do not require a double/additional justification. If they're women-only, you've already excluded males, therefore there is no need to go further to justify excluding a sub-category of male people who identify as transgender.

Because a transperson with a GRC is of the other sex, the first justification holds.

Notwithstanding that they have acquired a GRC, they appear to other service users as male.

To describe a need for additional reasons for exclusion of that male is completely wrong.

J: to exclude males suffices to exclude males without a GRC?

A: yes, but males with a GRC are excluded via a different provision.

If a male asked why he was being excluded from women's spaces/services, the reason for exclusion is on the basis of sex. A TW with a GRC is legally female, a rule that says "no males" does not exclude her.

If service provider wants to exclude her, they will have to say "no males and no TW with a GRC."

J: the difference is that, without a GRC facts exclude males; with a GRC the sex-based exemptions exclude males.

A: The COP expresses a political viewpoint. It's quite wrong to advise service providers that it's wrong to exclude transexual persons from women's spaces.

J: you end up saying there's not much difference in outcome to males with and without a GRC.

A: in outcome, in this context, yes.

The COP is expressly about provision of services.
Definition in EA 2010 of gender reassignment: "...if the person proposes to undergo, is undergoing, or has undergone part of the process of..."

Let's pause to consider how wide this definition is: GR purports to protect those who are "proposing to undergo..." This can be a state of mind, off-the-cuff. "I think I'm going to undergo a process of GR."

Why is it important to understand how wide that is, and what that means? Women & girls are entitled to their own boundaries when it comes to intimate medical procedures, and not to be in the presence of a biological male however convincingly they pass as a woman.

Eg. a woman using a rape crisis centre on the basis that there are no males there will not be comforted that only transwomen are there.

Woman and man are defines in the EA 2010 in binary terms (s.212). "Woman means female of any age; man means male of any age." Sex.

J: sex means natal sex here?

A: yes. Sex does not mean, in the EA, self-ID sex or gender identity, save in the GRC situation.

Let's look at GRA 2004. Provides for a process by which someone with gender dysphoria can apply for a GRC on the basis of "living in the other gender."

Intention to "continue to live in the acquired gender until death..." Acquired gender.

J: nothing to do with any physiological changes?

A: no.

No physiological changes required.

Where a full GRC is issued, the person becomes "for all purposes" the other gender.

Subject to other relevant legislation.

Effect of s.9(1) when someone is issued a GRC their sex becomes the other one with some caveats, including schools and gender-specific offences.

We say the COP misunderstands where the exceptions in the act speak in terms of separate sex provision.

If a service provider relied on para 26-27 Schedule 3 to provide a single-sex service, the exception allows them to run an exclusively single-sex service. It follows that if the provider is a women's refuge and admits legal men, they're undermining the initial justification.

They reduce single-sex availability by admitting legal males.

S.27 EA 2010: a person does not contravene s.29 by providing single sex service if it is a proportionate means of achieving a legitimate aim. Gives examples of circumstances where person might object to someone of the opposite sex being present.

It won't be sex discrimination to provide single-sex services in these circumstances.

A person does not contravene s.29 re GR "if the conduct is a proportionate means of achieving a legitimate aim."

Statutory interpretation: "conduct" covers both acts and omissions.

Within the para 28 exception is a direct reference to the explanatory note.

Example of application of s.28: group counselling session for women survivors of violence, lawful to exclude transexual people.

We say this applies to trans people with a GRC. Built into this para is provision of single-sex services, so those without GRC automatically excluded.

A "trans-exclusionary policy" would have to exclude males with and without GRC.

While there should not be discrimination against transexual persons, in general, s.29 is an exception.

J: you seem to argue that exemptions apply to males and males with GRC, so what is the point in GR characteristic?

J: if we're talking about transexual women who are biological men, you're saying they're protected by rules which apply to men.

A: the exception for single-sex services, the act is careful to preserve them notwithstanding the acquisition of the GR characteristic.

From the general to the specific, in the exceptions, GR characteristic has exceptions which still prevent discrimination.

J: so the provisions here don't impact on TW without a GRC?

A: it won't be unlawful under GR provisions to have a single-sex service. GR doesn't come into play because it's been excluded by the rules on single-sex.

Only the person with a GRC who has become female legally, who is dealt with under para 28.

J: how did you get from the language of the act that s.28 only deals with trans people with a GRC?

A: if the conduct in question is objectively justified by paras 26-27, you don't need para 28 to justify excluding those with a GRC.

A: to make the point in a different way, re how to understand these sections together. S.26 tells us the service provider won't be liable for sex discrimination if joint provision is less effective.

S.27 says no liability for sex discrimination if physical contact between one person and another. That, again, would be reason to object if the people where not the same sex.

How can it be sex discrimination if you've already excluded someone on grounds of being male?

Exclusion of males includes exclusion of transexuals with a GRC.

J: does that submission mean that across the full range of conditions in para 27 it will always be justified to treat a transexual woman in the same way as any other biological male?

A: point taken. Yes, it does apply for all of the sub-paragraphs because at base the reason for exclusion is to do with the male characteristic. Take example of hospital.

At base the justification for separation of sexes is sex.

Whether you look at any of these paragraphs, the justification is maleness.

It's reasonable to object to maleness in those settings, but if I'm wrong about that, and there is a residual question re GR discrimination, then it's difficult to conceive of a circumstance where a SP couldn't exclude a transexual person.

J: submission of fact or law?

A: one has to interpret those provisions in context, as part of a specific section of the act (Sched 3), and the issue is the proper relationship with GR.

COP significantly undermines the protections of women by advising an approach found nowhere in the statute.

It doesn't make sense when you look at the wording of the statute re objecting to person of the opposite sex.

We say that, read properly, the ability of a SP to provide single & separate-sex services, eg. changing rooms at swimming baths, is deliberately maintained by the EA--the ability to provide single sex services is maintained.

Fear of violence, of intimate exposure to person of the opposite sex, of a young girl...The act maintains those protections. Bodily privacy is engaged, so its justified to exclude opposite sex.

COP says the default position should be that in single/separate sex service, transexual people should be treated according to the gender they prefer. We say that's not what the EA says: it says you should generally protect against GR discrimination, but there are exceptions.

If its done in the context of a single sex service, that will not be unlawful GR discrimination.

J: how to construe Parliament's intention?

A: s.26-28 the protection created against having persons of opposite sex in intimate spaces & settings is incorporated into the act.

COP says denial of service to transexual person according to their gender should only be in exceptional circumstances. We say that's plain wrong.

This places a burden on service provider to show objective justification for limiting provision to single-sex.

Permitting legal males into single-sex services further undermines the exception for which justification is sought.

Defeats purpose of single-sex service to admit biological males with or without GRC.

By biological sex I mean not just external genitalia but internal reproductive biology.

There is a considerable difference between a SP being confident that it's OK to run a single-sex service, and having to undertake case-by-case exclusions, so they end up unable to run a single sex service due to that gatekeeping burden.

COP says transexual persons are not caught by the general exclusion, and the whole undertaking must be re-evaluated according to their inclusion claim. We say that's wrong.

J: is there evidence that this guidance has caused unworkability?

A: in recent years, trend towards removal of single-sex facilities, replaced with unisex toilets when refurbished. Women feel uncomfortable, esp menstruating, pregnant and menopausal women.

Reasons for the trend to remove these single-sex facilities is because of guidance such a EHRC's.

Once you accept single-sex includes legal males, it's not a single-sex space anymore.

If males are entitled to use it, it's not a single-sex space anymore.

A: the justification for excluding males with GRCs stands or falls with justification for running a single-sex service.

Not an irrationality challenge here, but that the guidance mis-states the law.

We think the respondent is misunderstanding our claim. We are saying that you don't need to justify the same thing twice (exclusion on basis of sex).

J: is there anything in the COP about mixed sex toilets?

A: no.

COP says it's perfectly proper to maintain single-sex services, arising from the objective justification for excluding males full stop.

I will deal with two additional issues, not costs yet.

In terms of timing, our position is per Ann Sinnott's witness statement. AS corresponded with EHRC regarding overly-prescriptive language from 2020.

To some issues she received a positive response, but a negative response once she raised potential unlawfulness.

She issued JR proceedings on 9th Dec, and that's a complete answer to the issue of delay. In pre-action correspondence, we refer to case of British Bankers Asscn v Financial Services Authority.

If it's arguable that guidance is ultra vires because it mis-states the law, that ongoing error requires correction going forward. This case is not abstract, and invites court to take a realistic approach. If a claimant brought a claim on the basis that they were affected,...

...it would be time-barred.

The guidance is arguably unlawful and our claim has a realistic prospect of success.

Ends A's submissions.

R (EHRC) counsel begins submissions.

In determining whether the code contains any errors of law, we read the sections in full rather than take sentences out of context.

In deciding whether the Commission has acted unlawfully, consider that it is an expert in the area, and how it arrived at the guidance produced.

That is its role and expertise, producing guidance on equality law. 12 week public consolation, round tables with stakeholder, events, all lead to drafting of COP.

All of this significant because unless the court finds that the Commission got this wrong, it should be very slow to interfere. That would go to the irrationality grounds for JR.

J: it's not open to the Commissions to make provisions of its own accord, but I got the sense it was making provisions?

R: we say their expertise makes it very likely that the guidance is justified.

J: re your point re the way things are expressed, there might be a fine line between a summary of the law and practical guidance re how to apply it?

R: yes.

Intervention in this area raises a question mark. The court is being invited to decide that trans-exclusion strikes the correct balance.

If there are specific instances where trans inclusion is the practice, and someone is effected, that could be litigated. That's the correct way to deal with this, not in the abstract.

R: it is not disputed that the court has jurisdiction in this area.

J: are you saying the code is statutory or non-statutory?

R: statutory

In my opinion the court should exercise the utmost constraint where ethical or political controversy, as here.

There is no evidence that someone has, based on the code, acted unlawfully.

J: Templeman L in the judgment, had anyone acted on the basis of the guidance there, do you know?

R: in terms of clear errors of law, in that case there was a fundamental misconception.

In our summary grounds of resistance, we argue that you have to balance detriments to trans people & other service users.

Provided it's lawful to have a single-sex service at all, is it lawful to exclude trans people from it?

We say there is no distinction between trans people with a GRC and without a GRC.

It is correct that a trans person defined as having GR protection is one with a GRC. Both parties accept this.

Many trans people without a GRC may live in their acquired gender nonetheless.

J: there is carve-out for people with a GRC?

R: that would always be justified.

J: Parliament would presumably say that.

R: it recognises that you can have separate- & single-sex services, but GR is a separate question.

Separate changing rooms, as an example, or a women's refuge. Joint services are less effective, therefore single-sex are justified.

It's unsurprising that you have a separate section re GR, because you can have a men's refuge or a women's refuge, but then must ask whether it's justified to exclude transwomen from a women's refuge.

It's consistent with the statutory scheme that GR discrimination must be satisfied. Excluding a transwomen from women's changing rooms would be direct GR discrimination.

You can't justify excluding transwomen from women's single-sex spaces. If your policy or practice is that only those female at birth are allowed in, this substantially disadvantages trans persons, therefore it requires justification.

You have to justify the trans-exclusionary practice or policy under s.19(2)(d).

R: It’s likely to be justified to exclude both TW with and without GRCs.

J: we will resume at 2pm.

@threadreaderapp unroll please