Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.
The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An activist’s dream.
It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.
However, this may be a trap for the unwary.
Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.
The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.
It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”
It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?
What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.
The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.
The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged.
Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “
Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.
As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.
Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”
I have previouslyset out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.
There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers to address long-standing underrepresentation was flawed and discriminated against a white man.
So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.
There has been a lot of interest in human rights circles about this case and its refusal of permission to judicially review the guidance relating to single sex services. We will look at what the case was about and what the refusal to allow permission might mean. We start by introducing the parties.
The Claimant was Authentic Equity Alliance (“AEA), a community interest company established in 2018 to promote the personal and professional development of women and girls.
It was asking for permission for the courts to determine whether or not the EHRC’s (below introduced as the Defendant) guidance relating to single sex services was lawful.
The Defendant to the claim was the Equality and Human Rights Commission, (EHRC) a statutory non-departmental public body established by the Equality Act 2006. On its website it advertises itself in the following terms:
As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.
Its job is to provide guidance and expertise on equality law. To that end it has produced various codes and documents, including the Statutory Code of Practice for Services, Public Functions and Associations (“the Code”), which is the authoritative guide to interpretation of the Equality Act.
Principal area of concern
AEA’s claim against the EHRC focused on one paragraph of the Code:
[Text: 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. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful when the exclusion is a proportionate means of achieving a legitimate aim.]
The Question of Lawfulness
The excerpt from the EHRC’s code which is copied out above relates to the Equality Act which allows service providers to run women only services (in Schedule 3). The Equality Act starts from a position of non-discrimination – the majority of services are available to everyone regardless of the nine protected characteristics – but accepts that there will be exceptions to this rule. Many of these are uncontroversial. It would be remarkable for someone to suggest that the Brownies are not entitled to discriminate on the basis of age, for example.
Justified Women Only Services
Women only services are exceptions to the starting point of non-discrimination and they are allowed under the conditions set out in Schedule 3.
Broadly (we paraphrase and are not delving into technical details here)
It is lawful, and will not be sex discrimination, to offer single or separate sex services (SSS) when this is a proportionate means of achieving a legitimate aim (Paragraph 26 – 27 )
it is lawful, and will not be gender reassignment discrimination, to offer SSS, if the conduct in question is a proportionate means of achieving a legitimate aim. (Paragraph 28)
The Substance of the Claim
The claim that was brought was, as the judge said at the end, complicated. A simplified – possibly oversimplified – summary is this:
Prescriptive Inclusion: The “Must” Approach
The Claimant, AEA, said that the phrase in the COP “should treat transsexual people according to the gender role in which they present” had wrongly led service providers to think that they must treat people according to the role in which they present. The Claimant provided evidence of various bodies which had adopted this position (as discussed below).
The Defendant, EHRC, said that
the COP said “should,” not “must,”
that exceptions were available, and
that the bodies which had adopted the “must” position had not expressly said that they had had regard to the COP. On that basis, the EHRC said that those bodies cannot have been led, or misled, by the COP, as none of them mentioned it.
In fact, the EHRC said, a policy that said a service provider ‘must’ treat people according to the role in which they present would be “directly inconsistent” with the COP.
In other words – other bodies may well be making this unlawful assertion, but it ain’t us guv.
The EHRC suggested that if other bodies had unlawful policies, these should be challenged directly, rather than holding EHRC itself responsible for bodies which should have followed its guidance, but either did not do so or misunderstood it – although naturally, the EHRC was not willing to concede that anyone had been misled in the absence of a smoking gun in the form of a policy which said “and we got this off the EHRC Codes Of Practice”. This, as we will come to shortly, is important.
Extent of Justification Required
The Claimant said that if a service provider meets the first requirement (paragraphs 26-27 of schedule 3) and identifies that providing a woman only service is a ‘proportionate means of achieving a legitimate aim,’ it need not meet the second requirement (paragraph 28 of schedule 3) in order to lawfully provide a female-only or male-only service.
The ‘proportionate means of achieving a legitimate aim’ having been once identified for the purposes of providing the service at all to the exclusion of persons of the opposite sex, there was no need to re-invent the wheel by identifying it again for the purposes of excluding a person of the opposite sex who also had the protected characteristic of gender reassignment.
The EHRC said that this was wrong. It said that the AEA’s analysis didn’t account for those who had lived ‘for many years’ in an acquired role and yet had not, for whatever reason, applied for a GRC. It might be reasonable to include such a person notwithstanding that they were legally male, while it might be equally reasonable to exclude someone with a GRC who was legally female.
At this stage the parties’ arguments essentially converged. Both parties were arguing that a GRC was not relevant to the provision of a single sex service.
Whether Appearance is a factor
The court examined the situation where a person using a woman only service is “visually indistinguishable” from a woman and what this means in law.
This phrase’s provenance is from a case which predates the Gender Recognition Act (“GRA”), A v CC West Yorks. It was about a transsexual MTF police officer who argued that she had suffered discrimination because she was refused employment, as she would not able to search female prisoners. [For the avoidance of doubt, the court held that Ms A “appeared in every respect to be a woman” – this is not a case in which Ms A asserted a gender identity at odds with appearance which would, nevertheless, today bring her within the scope of the Equality Act. The case was brought because a prohibition on conducting searches would alert her colleagues to her trans status, which was not known to them. There is absolutely no suggestion that she was seeking inappropriate contact with female prisoners. ]
The House of Lords held that sex could include “the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.” This was all decided under the provisio that the GRA would consider and address the issue of legal sex.
Times have changed. The GRA is now in force. We no longer assume that gender reassignment means “a post-operative transsexual” and we now understand intimate searches to be something to which a person consents, not to which they object – albeit lack of consent may be no obstacle where the relevant PACE requirements are satisfied.
However personal appearance is a factor which both parties acknowledged as relevant when providing a single sex service and applying the exceptions. In a situation satisfactory to nobody, personal appearance is relevant when assessing whether excluding a transwoman from a woman only service is a proportionate means of achieving a legitimate aim.
The Judge decided that AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His job was not to decide what the correct interpretation of the law was at this stage. All he had to do was decide if AEA’s claim was “arguable” – that is, was it arguable that the EHRC’s guidance was so wrong as to be unlawful.
He decided it was not, for the following reasons:
On the first argument, he agreed that the COP said “should,” not “must.” He pointed out that the guidance extends to just four paragraphs and is intended to be a brief summary not a detailed legal analysis. After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable. Although it is not detailed, it is not intended to be an exhaustive guide.
He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive. We look at this below.
On the second argument, he agreed with the EHRC that even if a service has met the first requirement by showing it needs to be a single or separate sex service in order to exclude men, nevertheless, it must also meet the second requirement to exclude transwomen where necessary.
It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.
In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate. Someone who is genuinely visually indistinguishable will be unlikely to cause challenge or consternation on accessing a SSS, even if they should choose to do so. Focus on a person’s physical appearance is likely to be experienced as demeaning by both the subject and the person required to make the assessment.
THE EHRC’s Stance on Single Sex Services
It would have been significant if the EHRC had been forced to change its guidance, but the refusal of permission means that the existing situation continues – but with the welcome clarity that the EHRC has acknowledged that there are instances where refusing access to a person of the opposite sex is perfectly reasonable and not phobic.
The EHRC made two important concessions:
It distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women,
It made clear that in its view that a women only service is permissible and the correct approach is more nuanced with a starting point of inclusion but recognising that exclusion can be justified (due to being a ‘proportionate means of achieving a legitimate aim’).
What does all this mean?
EHRC agrees that women only space does not have to include anyone who is male at birth, and described prescriptive inclusion policies along the lines of self-ID as “directly inconsistent” with the Code of Practice.
And where should these cases be brought?
The judge strongly agreed with the EHRC that a better challenge would have been brought by an individual service user against an individual service provider, rather than in the abstract at the level of the EHRC and the AEA.
Whilst a reasonable view in law, this is a sad outcome for both trans and feminist service users and for service providers engaging with SSS policies. Women’s services such as crisis centres, refuges and support groups are overstretched and ill positioned to sustain lengthy legal battles.
Some of the Misleading Public Guidance
The policies which AEA had pointed to as containing misleading guidance included
all of which envisage that a person must, in some cases from the moment they announce an intention to transition, be allowed to use shared private facilities of their preferred sex. In many of these policies there is no hint that the authors were aware that exclusion may be justified where it is a proportionate means of achieving a legitimate aim.
EHRC said that there was no evidence that the authors of such policies had been led or misled by EHRC, and that the COP provided adequate guidance explaining that exclusion could be justified.
Here is what EHRC said in its skeleton argument about these documents:
“… insofar as the AEA’s primary objection is to guidance suggesting trans-persons must be allowed to access the SSS of their acquired gender, that is directly inconsistent with the COP. As set out below, the COP makes clear, in terms, that trans-persons can be excluded from a service where that is justified, and, indeed, the EHRC has taken steps to bring that to the attention of service-providers whose guidance erroneously suggests trans-persons must always be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others. A striking feature of the present litigation is that, if the AEA or others affected have identified guidance or practices of other public or private bodies’ that does, in fact, reflect incorrect statements of law, it is not clear why they are not being pursued. Instead, a claim has been brought in relation to the EHRC’s COP which simply does not contain the alleged errors.” [emphasis added]
It might be considered remarkable that quite so many bodies have apparently developed policies without regard to EHRC’s express intervention and also its statutory Code of Practice, but there we have it. Policies and guidance which say a person must be allowed to access the SSS of their acquired gender without reference to possible exceptions is “directly inconsistent” with the COP, and the EHRC will correct service providers whose guidance is “erroneous” in that respect.
What happens next?
Everyone who provides a single or separate sex service should ensure that they have good legal insurance. It seems likely that as a result of this litigation, women will take action against the individual service providers whose guidance is erroneous, and that more trans people will take action against SSS when they feel that they have been wrongly excluded. As these cases progress up from the county courts to the High Court and Court of Appeal, general principles will be developed through case law as to what a ‘proportionate means of achieving a legitimate aim’ looks like in practice.
Organisations offering a SSS also need a policy on how, and when, they will apply the exceptions. It will not be enough simply to say “this service is female only.” The policy must set out why the SSS is justified at all and then must say that admission of transwomen is or is not likely to be justified. A blanket ban is likely to be unlawful: the rather far-fetched example was given of a transwoman with her children approaching an otherwise empty women’s refuge in the middle of the night. The policy must envisage the improbable as well as the routine.
Finally, we need more research. Many women avoid mixed space and we hypothesise they will simply self-exclude quietly, leading service providers to become complacent about the need for single sex services. “Our service is unisex,” they say “and we see no women here who have a problem with it, therefore it is unproblematic.” Women who have stopped using a service because it became mixed, or who avoid coffee shops with unisex loos, need to make this known. Service providers need good research to rely on when deciding whether a SSS is justified in order to meet women’s needs. If the service already has an inclusive or conversely an exclusive policy it will not be enough to simply consult with existing service users – it will be necessary to identify potential users too because the policy will have defined the existing service user group.
What are “sex based rights”? What do women mean by the phrase – and do we even have them?
A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.
What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.
They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.
So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.
So the ordinary rule for services is that everything is mixed sex, except where
“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.
S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.
It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.
In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.
Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).
(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)
Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.
And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.
So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?
The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”
The nineties were a particular hotspot for such arguments, as the marital rape case (R v R  UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”
The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”
None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”
What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”
This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’
For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.
If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.
For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.
While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”
While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.
While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.
Garden Court Chambers is a prominent and highly regarded set of barristers’ chambers based in Lincoln’s Inn Fields, London. Garden Court prides itself on its “progressive” attitude to law: for example, its members will defend but not prosecute, in common with other “progressive” sets. Its motto, “Do right, fear no one,” reflects its stated commitment to “fighting your corner, no matter how formidable the opponent might seem”.
So how has such a set found itself at the heart of a legal challenge from one of its own barristers, who accuses it along with Stonewall of discriminating against her as a woman and a lesbian?
Stonewall has recently attracted some accusations of homophobia for quietly redefining “sexuality” to mean an attraction to a gender, not a sex. Stonewall’s definitions, from their glossary, are these:
Homosexual: This might be considered a more medical term used to describe someone who has a romantic and/or sexual orientation towards someone of the same gender.
Gender: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth
Gender identity: A person’s innate sense of their own gender, whether male, female or something else (see non-binary below), which may or may not correspond to the sex assigned at birth.
So for Stonewall, being L, G or B has nothing to do with a person’s sex, but rather means one is attracted towards a person’s “innate sense” of masculinity or femininity “which may or may not correspond to the sex assigned at birth.”
The idea that femininity is innate in women – and by extension, that unfeminine women are not women, and that the culturally determined status of women globally is not attributable to patriarchy but innate to women ourselves – is offensive to many women. Many lesbians (and gay men) are aghast at the proposition that sexual orientation derives from some sort of soul-based echolocation and disregards biological sex.
One of those women is Allison Bailey, a criminal defence specialist at Garden Court, who is herself a lesbian. She sets out in the background to her action that she is the daughter of Jamaican immigrants, a survivor of childhood sexual abuse and an active anti-racism campaigner who spent a night in a San Francisco jail for a peaceful protest in the wake of the acquittal of the officers involved in the beating of Rodney King – in summary, a woman who would seem to typify Garden Court’s ethos.
She was involved in setting up the LGB Alliance in 2019 to advance and protect the rights of lesbians, gay men and bisexuals to affirm themselves as attracted to members of their own or both sexes. LGB Alliance dissents from Stonewall’s position on the definition of homosexuality, accusing Stonewall of homophobia. That has upset Stonewall.
So far, so perfectly ordinary: private citizens are well within their rights to be involved in whatever social and political voluntary work they wish within permissible legal confines, without interference from their employers or their colleagues.
However, when Allison tweeted in support of the LGB Alliance immediately following its first public meeting, Garden Court hastily put out a disclaimer distancing itself from Allison and her views, instigated a disciplinary procedure, and (she alleges), restricted the flow of work to her, causing her income to drop considerably. Allison says this was done under pressure from Stonewall.
In her fundraiser, she sets out how in response to her Subject Access Requests, her chambers replied with four lever arch files of documents, while Stonewall blandly denied any correspondence about her. That, as she knew from the documents her chambers had provided, was untrue. She pursued the inquiry, and this has resulted in her bringing an action against both Garden Court and Stonewall.
The legalities of the action are worth considering. She alleges that Garden Court discriminated against her as a woman and as a lesbian, so on the basis of the two protected characteristics of sex and sexual orientation. At the same time, she says that Stonewall engaged in “prohibited conduct” under s.111 of the Equality Act by instructing, causing or inducing Garden Court to discriminate against her. We are not aware of any other s.111 case that has been reported, so this may be a legal first.
This week, Stonewall and Garden Court applied to the tribunal to strike out her claim. To succeed, they would have had to show that Allison’s claim was unarguable – that it was so ill-founded that it stood no prospect of success at trial. When a strike out application is heard, the judge has to take the Claimant’s case “at its highest” – because if it cannot succeed even at its highest then it is unarguable.
Garden Court filed a 120 paragraph witness statement in support of its contention that the claim was unarguable. A cynic might suggest that anything that takes 120 paragraphs to refute or undermine is plainly arguable. Garden Court argued that the claim could not succeed on merits, and Stonewall argued that the s.111 point could not succeed as there was no relationship that could meet the requirement of instructing, causing or inducing. Allison asked for permission to amend her claim.
In order to establish whether a claim is arguable or not it is inevitable that some of the evidence will have to be referred to. During this hearing, it emerged that Stonewall had leaned hard on Garden Court, writing emails which were characterised by the judge as a “threat” of reputational damage to Garden Court, including that for Garden Court to continue to support Allison “puts us in a difficult position with yourselves”, that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people”, and that Garden Court must take disciplinary action against Allison or, as summarised by her barrister, face the reputational consequences.
Unsurprisingly, the judge concluded that it was at least arguable that this was “inducing” Garden Court to take the steps against Allison Bailey which it did. She also concluded that the Diversity Champions Scheme provided the requisite relationship, and that Allison had a “more than reasonable” argument that the steps taken amounted to discrimination. She refused the strike out application and granted the application to amend.
It remains to be seen whether the Employment Tribunal will conclude in June that the actions of Garden Court and Stonewall were actually unlawful rather than merely astonishing.
In the meantime though, the question arises as to how much power and influence a charitable organisation should have over individuals with whom it disagrees. Even the most zealous defender of the Stonewall position would, we think, baulk if equivalent pressure were applied by another large and well regarded charity firmly embedded in the establishment – for example, the Church of England. If the Church were to lean as hard on an employer (or chambers) to disown a member for setting up an LGB organisation, there would quite rightly be uproar from Stonewall’s supporters. No charity, no matter how well intentioned, well financed or well regarded, should be able to use a diversity scheme to exert pressure which is at best (on Stonewall’s case) intrusive and at worst (on Allison’s case) unlawful.
Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)
My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder.
Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?
Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.
Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.
Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy.
But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.
“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.
“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.
“This presents a clear safety risk when transgender women play women’s contact rugby.”
This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”
But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic.
So a useful list of things to note when initially considering if something is unlawful discrimination:
Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.
Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.
Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination.
These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more.
Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.
Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment.
So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team.
However, there is an exception allowing for single sex teams. S195 Equality Act says :
(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.
(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—
(a)fair competition, or
(b)the safety of competitors.
(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.
This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination.
Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex.
Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.
So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.
Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.
This guidance document produced by the Security Industry Authority and published on the Home Office website in October 2018 has recently been publicised by @ripx4nutmeg.
There’s already an excellent thread taking it apart here, so I’m mainly adding my voice to points already well made elsewhere. I’m going to do that in the form of a series of quotes from the document, followed by my comment.
It has been written in consultation with trans people and groups as well as security industry operatives.
Comment There is no mention of consultation with any group representing the interests of women.
Take at face value what a reasonable person is telling you about what they need and who they are.
Comment How do you tell whether a particular person is reasonable? If someone who is obviously a man tells you he is a woman, does that give you any clue?
Don’t expect a trans person to look or sound a particular way.
Comment Ah, apparently not. This seems to mean – and certainly may be read as meaning – that trans people need not make any concessions to dressing as or looking like members of the opposite sex in order to claim, irrefutably, to be trans. So if a large muscular man dressed in masculine clothing and wearing a beard tells you that he is in fact a woman, the previous quote tells you that you should take what he tells you at face value.
Allow the customer to choose whether they want to be searched by a male or female member of staff.
Comment Think a bit about what this means. There are no rights without corresponding duties, so if your customers have a right to be searched by a male or female member of staff, then your staff must have a duty to perform those searches. If you’re a business owner, you’d do well to take employment law advice before complying with this guidance. You may risk indirect discrimination, sexual harassment or constructive dismissal claims from your female employees if you require them to search any male customer who states a preference to be searched by female staff.
If a trans person says that a particular toilet is appropriate for them, then that is the appropriate toilet for them.
Comment Business owners should take legal advice before complying with this guidance, too. If your signage indicates separate male and female toilets, you are representing to your female customers that the female toilets will only be used by other women. That may be essential to their feeling safe and/or comfortable using those toilets. Women being in general substantially more vulnerable to male violence than vice versa, a woman who is upset – or made to feel that she can’t use your services at all – because you have ceased to provide female-only toilets may have an indirect discrimination claim against you. If she has suffered harm – e.g. voyeurism or an assault – because of your policy, she may have other claims against you.
It is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment.
Comment This is true in general (subject to exceptions), but not relevant to the guidance above. Excluding a trans woman from the women’s toilets isn’t discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not welcome in the ladies, but because of their physically male sex. Schedule 3 to the Equality Act exempts justifiably sex-segregated services from the general prohibition on direct sex discrimination; and the indirect discrimination provisions of the same Act make it legally risky, at least, not to make use of the Schedule 3 exemptions where they are needed.
For example, this means that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action being taken against the pub, club or venue you work at.
Comment This is unfortunately true, because trans people have been told over and over by those who should know better (including, shockingly, the EHRC ) that they have stronger claims to female-only services and spaces than they do.
There are two points to note here. The first is that ‘a risk of legal action’ is not the same thing as ‘a credible risk of successful legal action.’ The second is that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action against your pub, club or venue – but so too may exposing your female customers to the risks associated with letting male-bodied people use your women’s toilets.
Consult a discrimination lawyer for guidance on which risk is the greater. Consult your conscience on whether to prioritise the safety and dignity of your female customers, or the feelings of your male customers.
BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that only a misanthrope could oppose, or is there more to it?
The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may be repercussions for failing to remember a colleague’s preferred pronouns.
This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.
The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:
We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration.
But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:
What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”
This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes.
It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun.
Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply, aligning themselves with a political position they disagree with; or else reveal their political views in the workplace, which carries a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.
Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason. There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable.
A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”
It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994)17 EHRR 397:
“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”
Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department  UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.
RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1)  UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.
The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex.
We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened.
In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”
The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerousarticlesspanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.
And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32).
It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further.
This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise.
It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex.
There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is
Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?
The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all.
The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.
The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have undergone “a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.
But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.
If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.
In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.
When is it lawful to exclude trans women from women’s sport? And will it ever be unlawful – or legally risky – not to? I argue that the answers are “usually,” and “yes,” respectively.
Most competitive sports are segregated by sex: as a rule, there will be a women’s event, and a men’s event. Sportswomen and men have to compete in the event specific to their sex, and will generally be refused admission to the opposite sex’s team or event.
Not being allowed to take part in something you want to take part in because of your sex is sex discrimination, which the Equality Act 2010 prohibits in various contexts – including many of the contexts in which people do amateur or professional sport. So how come it’s lawful to have separate men’s and women’s events at all?
The answer is in Part 14 of the Act, the Part headed “General Exceptions.” Section 195 is headed “Sport.”
The main work of section 195 is done by its first two subsections, supported by a definition at s.195(3). I’ll take the definition first.
The definition: “gender-affected activity”
Section 195(3) defines the expression “gender-affected activity.” If the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other, it’s a gender-affected activity.
That will easy to apply in the vast majority of cases. The physical strength, stamina or physique of the average woman will put her at a disadvantage compared to the average man in almost all sports where muscular strength, speed, body size, reach etc. are significant. No doubt there are some borderline cases, and the odd exception; and it may even be that in some extreme endurance events women start to pull ahead. But in general, if men and women compete in the same sports, relatively ordinary men will outperform even elite women. That’s why we have segregated sports: if we didn’t, in most events women would scarcely get a look in.
Deciding whether average persons of one sex have an advantage over average persons of the other doesn’t require us to tangle with controversy about who exactly should be included when we calculate the qualities of “average persons of one sex.” Even if you include trans women in the total population of women from which you draw your average, that may shift the average a bit, but it won’t make the male advantage disappear. So the great majority of sports will be gender-affected activities, and self-evidently so. (See Dr Emma Hilton’s paper here https://www.preprints.org/manuscript/202005.0226/v1 if you’re not with me on “self-evidently.”) Exceptions will be sports where the differences between competitors are all about skill, built on a base level of athleticism that either sex can attain. Equestrian events are the obvious example; and sure enough, they tend not to be segregated by sex.
Subsection (1): sex discrimination
Subsection (1) takes participation in any gender-affected sport right out of scope for all relevant prohibitions of discrimination on grounds of the protected characteristic of sex. Nothing anyone does to anyone on grounds of sex in relation to their participation as a competitor will be unlawful sex discrimination, provided only the sport is a gender-affected activity.
Subsection (2) provides a more qualified defence to gender reassignment discrimination where the sport is a “gender-affected activity” and the discrimination is necessary to fair competition or safety.
So to decide whether it’s lawful to exclude a person with a male body from a women’s sporting event, you need to work out whether the circumstances fall under subsection (1) or (2). That means you need to know whether excluding them would be discrimination on grounds of sex, or discrimination on grounds of gender reassignment.
Which kind of discrimination is it?
I’m going to discuss three imaginary individuals, Chris, Viv and Hilary, all of whom would like to compete in a women’s rugby match, and all of whom are turned away by the body organising the match because they have male bodies. Chris is a man, and doesn’t identify as anything else. Viv is a trans woman without a GRC. Hilary is a trans woman with a GRC.
Chris is excluded from the match because he’s a man: it’s a straightforward case of direct sex discrimination, but rugby is a gender-affected activity, so s.195(1) makes it lawful to exclude him from the women’s match.
Viv doesn’t have a GRC, so although she self-identifies as female, so far as the EqA is concerned she’s of the male sex. A person of the opposite sex would have been allowed to compete, so this too is direct sex discrimination, and lawful by virtue of s.195(1). No ifs or buts, and no need for justification in the individual case.
Hilary, although biologically male, is legally female, so a person of the opposite sex – a man – would have been excluded from the match just the same. So Hilary hasn’t suffered sex discrimination. But she has suffered gender reassignment discrimination, because a comparator of the same (legal) sex but not having the protected characteristic of gender reassignment – that is, a woman who was a woman by biology rather than by a process of legal deeming – wouldn’t have been excluded. So Hilary’s exclusion is lawful under s.195 only if it is necessary in order to secure fair competition or the safety of other competitors.
Bearing in mind that rugby is a contact sport which even among physically well-matched opponents frequently causes injury, it seems likely that including Hilary – unless she has an unusual physique for someone who has been through male puberty – will increase the risks to her biologically female opponents. The same goes for fairness: Hilary’s male puberty will have given her an advantage that no certificate or legal status can erase. This is likely to be true in almost any case where a trans woman with a GRC wishes to compete with women in a gender-affected activity: even where safety isn’t engaged, the fact that the sport is a gender-affected activity will normally be sufficient to indicate that fairness will be undermined if a biological male is allowed to compete.
So although conditions for the operation of the exemption look different under subsections (1) and (2), the reality is that it will normally be lawful to exclude trans women from women’s events (anyway so long as those events amount to the provision of services within section 29) whether or not they have a GRC.
Will it ever be unlawful not to exclude trans women from women’s sport?
Section 195 provides exceptions to general rules in various contexts prohibiting discrimination on grounds of sex and gender reassignment. On their face, they are merely permissive: they say you may discriminate, but they don’t say that you must. So some sporting bodies may take the view that they’d rather not be sued for discrimination, even if they might have a good defence under s.195, so they might as well err on the side of safety by welcoming all comers on the basis of self-identification.
But it’s not as simple as that. I can foresee two distinct ways in which sporting clubs or bodies may lay themselves open to claims if they permit male-bodied people to compete in women’s events, and there may be others I haven’t thought of. The most obvious one is negligence: in contact sports (and potentially others, like cycling, where there is a risk of accidental contact), permitting trans women to compete may make the contest not merely unfair, but also more dangerous than it ought to be.
But in many cases even where safety isn’t engaged, there is the possibility of indirect discrimination to contend with. Indirect sex discrimination occurs where a “provision, criterion or practice” puts women at a particular disadvantage compared to men. Opening participation in sex-segregated sports to trans men and trans women (whether on the basis of self-identification, or limited to those with a GRC) will put women at a striking disadvantage compared to men: men in general have nothing to fear from trans men competing in their sports, but if trans women are allowed to compete in women’s sports, natal women are bound to lose out on team places, prize money, sponsorship, medals, and – perhaps most importantly – participation.
An indirect discrimination claim on this basis isn’t straightforward, because of the extraordinarily broad terms in which section 195(1) is expressed: read literally, it abolishes the whole of sex discrimination law at a stroke in relation to participation in gender-affected activities. That is a result so peculiar that one feels there must be a way around it – but that’s a puzzle for another day.
 In truth, this caveat is only there as an excuse for a footnote about Jasmin Paris’s outright triumph, beating all previous male and female records, in the 2019 268-mile Montane Spine Race along the Pennine Way while breast-feeding.
 I am confident that this analysis is correct, but it is fair to note that the contrary view does appear to be implicit in Alex Sharpe’s article ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (Sharpe (2020) 83 (3) MLR 539-557).
 There’s a weirdness in the drafting of s.195. Subsection (1) obliterates the whole of sex discrimination law so far as it relates to participation in gender-affected activities. Subsection (2), in contrast, just excludes four specific sections: s.29, which prohibits discrimination in relation to the provision of services; plus sections 33-35, which relate to the disposal and management of premises. The disparity of coverage isn’t mentioned in either the EHRC Code of Practice or the explanatory note to the Act, and I’m currently baffled by it: I find it difficult to to understand why, for example, the exemption shouldn’t extend to discrimination by associations or educational institutions. If anyone can explain that to me in a comment, I shall be grateful.
 Again – please comment if you can think of others.
 At the very least, in relation to professional sport, it can’t be compatible with the Equal Treatment Directive 2006/54/EC.