Thread by @SexMattersOrg

The judge should return shortly to give his oral findings in
@AnnMSinnott of Authentic Equity Alliance's contested permission hearing in a proposed judicial review of
@EHRC

Will AEA be permitted to go forward to a full judicial review of EHRC's policy guidance?

#AEAvEHRC

Judge returns. All rise.

J: this is an application for JR. Having considered the papers and oral submissions I have concluded that permission should be refused.

The Code came into force in April 2011 following pre- and post-consultation process, and going before Parliament in 2010.

The claimant argues that the code relies on mis-statements of the law. None of their grounds are, in my findings, sound.

The basis for C's contentions are that under s.13 EA 2010 dealing with direct GR discrimination, the relevant comparator for a transexual woman--being a biological man--is a non-transexual birth male.

On C's basis a transexual male could be excluded. The key question is whether a PCP places those with GR characteristic at a disadvantage.

The claimant's first proposition is unarguable.

In the paradigm example of indirect discrimination, a full-time working requirement could not be seen as non-discriminatory.

The defendant's code of practise seeks to give concise and generally applicable advice. The claimant has shown no error of law.

C's view of the legislation is untenable WRT "birth men in general, and birth women in general."

Para 28 applies to gender reassignment in general. It applied to birth men who are transexual women.

The claimant points out that what must be justified is the PCP in general.

In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable to look at the impact on those with protected characteristics, including birth males who are transexual women.

In my view the claimant's argument is an obvious absurdity as it construes s.28 as never applying to a transexual woman lacking a GRC.

The code does not, as C suggests, make any suggestion go "automatic" entitlement to access on the basis of acquired gender. Exclusion is permissible when a proportionate means of achieving a legitimate aim, eg. of privacy & decency.

C gave an opinion as to the application of the test which the defendant is entitled to put forward in the context of general and practical guidance.

The statement that denial of services to transexual people should only apply exceptionally is a statement as to the application of the test.

That comes close to an error of law such as might lead to permission for judicial review.

The defendant gave an example of a defendant's approach to a women's hostel in the middle of the night, in an emergency.

I recognise the concern of women & girls and those who protect their interests. However, it is in my view clear that Parliament has chosen to place transexual persons in a different position to those of their birth sex.

I do not accept C's contention re errors of law. C's interpretation of the act is wrong in law.

A balance must be struck between the various interests at stake.

No grounds to show that the guidance has placed women and girls at a disadvantage.

I doubt that this case is the proper forum to determine the broader questions re transexual women without a GRC using women's spaces.

Such issues are better determined where an individual has been indirectly effected by the application of the guidance.

WRT the issue of time bar, was this an abstract challenge which has to be undertaken within 3 months of the defendant making clear they would not amend the guidance.

It wrote to C to say that it considered the code itself reflected the law. C contended that that was not the case. C wrote letters on 26 Mar & 7 April reiterating their position.

In my view that letter made it clear that the defendant did not accept C's contentions. Further correspondence ensued.

Had I been persuaded that the code contained clear illegality, or that SPs were acting unlawfully as a result of it, I might have dealt with this matter differently (per Banking case).

The proceedings here began well over 3 months after the C's July 2020 letter.

Further refusal on grounds of delay, with no scope to apply for a time extension.

Judge ends.

Discussion turns to costs.

Hearing ends.

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