Thread by @SexMattersOrg

This afternoon we continue to live tweet
@AnnMSinnott of Authentic Equity Alliance's contested permission hearing in a proposed judicial review of
@EHRC

We will shortly hear more from the respondent EHRC's counsel.

#AEAvEHRC

The judge is with us.

R: the claimant claims that there is no reason to justify the exclusion, from women's spaces, transgender males with a GRC, and that there is no practical difference between excluding a trans person with and without a GRC.

J: it's put as both because the point is that the test in para 28 (proportionality test) will already have been passed

R: as a matter of law it must be proportionate to exclude trans people if they have a GRC

The argument is that if you satisfy ss.26 & 27, you're bound to satisfy s.28, but that would make s.28 otiose

J: they might still need s.28 for those with a GRC?

R: they say there is no distinction in practice

J: they may be saying that, as a matter of law, for those without a GRC, if it's justified as sex discrimination that determines the matter. For those with a GRC, it won't matter anyway.

R: it may be justified to exclude trans people, but that question would have to be asked

The proportionality test will always depend on the particular facts.

How could you possibly decide that every women's refuge and every women's changing room must always exclude transwomen?

In the Parliamentary materials, there were some women's refuges which allowed transwomen in, and others which don't. Could one say that the ones which admit TW are infringing the law? This is the claimant's legal error.

R moves onto the issue of sentences taken out of context.

It cannot be the case that you must exclude transwomen from women's changing rooms.

The Commission states that there must be strong reasons not to treat someone according to their acquired gender.

J: this means fully physically indistinguishable?

R: yes.

Post-operative transexuals are indistinguishable from women, hence there should be strong reasons to treat them differently.

Denial of service to a trans person should only be in exceptional circumstances. That is the Commission's view.

They can't use the women's changing facility, or the men's, so there would need to be pretty exceptional circumstances to reach that conclusion.

J: would that also entail that refusing admission to a woman's hostel would also need to be exceptional? Or does it mean that the situation itself is exceptional?

R: that the situation itself is exceptional. You have to balance detriment to one group against the other.

drive.google.com/drive/u/1/fold…

J: you gave me a reference to do with refuges.

I intend if possible to give an oral ruling this afternoon.

R argues that the claimants claim fails because out of time

[comment: there are strict time limits on judicial review after the event which triggers the application]

J: does it make a difference when the claimant first obtained legal advice?

R: there is no harm to public administration if the Commission assumes that, once the three months have passes, the issue has gone away.

This is not a strong case.

R's submissions end.

AEA's counsel responds.

A: regarding delay, 23rd September was the first date on which EHRC confirmed it did not intend to amend the COP.

We say we are within JR time limits.

R: As regards main issues, may I take the example in COP of "they should treat transexual people according to their gender role." We say that is an error of law.

It is inherent in the concept of single-sex service that it is provided to one sex. We are talking, here, about the male sex. Where is that wording in the COP coming from? That's where are argument at para 22 of the skeleton comes in.

For the TPNC, there is no direct discrimination by exclusion because they are not being excluded on the basis of GR but of sex. Only indirect discrimination requires justification.

You don't get to the position of needing to look at indirect discrimination, but the COP invokes that language nonetheless.

J: if the PCP is a proportionate means of achieving a legitimate aim, discrimination is justified. When you're deciding this, you have to consider its' impact on putative victims of discrimination.

For example, a requirement that employees work full time, but you have to consider how it impacts on women due to childcare commitments.

Why does it follow that if a PCP is proportionate for those without a GRC, why does it follow that it is for transexual women?

J: how so?

R: the justification is the maleness of the person being in a changing room with someone of the opposite sex

To do otherwise would be to water down the availability of single-sex services. The rationale for them is eroded.

The example given of a total denial of a service to a transexual person should only happen in exceptional circumstances. Take for example Hampstead Bathing Ponds, transexual males say they want to lose the Ladies' Ponds--not the mixed sex or men's ponds.

[comment: that is clearly not a total denial of service, a denial of any place to bathe at the ponds]

If the word "conduct" imports a need to look at each individual arriving at the service asking to use it, on a "case-by-case" basis, that would represent a complete misunderstanding of the law and liable to be struck out as ultra vires.

J: I will rise for 20 minutes then come back and give my decision.

Judge rises.

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