noobwatcher.bsky.social
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So “separate but equal” is working in its usual way then (aka “some are more equal than others”) ?
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Ooph
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The fact that (as a legal technicality) they were never a pure single sex association in the first place doesn’t seem to have ever been an issue.
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To my knowledge there is no case law where a single sex association was successfully sued while operating on such a self-identification basis.
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It’s about framing the legitimate aim and proportionate means. Freedom of association for people sharing a gender identity would be a legitimate aim; also avoiding costly overheads and policing. Using a simple self-identification tick box at registration would be a proportionate means.
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… tick the box because they don’t identify as a woman. They have gender reassignment characteristic but don’t get admitted.
These examples show there is no direct discrimination because of sex or gender reassignment.
The organisation will need to pass a PMOALA test for indirect discrimination.
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He can’t claim direct discrimination, because the exact correspondence test fails. Consider another cis man who ticks the “I identify as a woman” for a dare, a prank, or a journalistic investigation. He also gets admitted to the association.
Consider a non-binary person assigned male, who doesn’t…
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A cis man could try to claim *indirect* sex discrimination, but that’s allowed provided a proportionate means of achieving a legitimate aim (section 19 of Equality Act).
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.. one for those female at birth, and one for trans women, and then these two associations share facilities and events. Legally they’re distinct entities but members of each will mix together and do not have to disclose to other members which they belong to.
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Not true. It is possible to have an association for trans women which excludes cis men (membership based on intersection of two protected characteristics: birth sex and gender reassignment).
What Falkner seemed to be alluding to is that an association could split into two associations…
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Scratch a transphobe and a racist bleeds. On both sides of the Atlantic.
When you decide someone’s “biology” (animal identity) or status at birth (socially imposed identity) overrides their autonomy, and lived experiences (self identity) all forms of bigotry get let loose.
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Which raises more headaches: what is the association supposed to do about a cis man causing mischief by claiming to be a trans man and demanding a membership?
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Another problem with this is that the “cis woman” sub-association is illegal anyway, because being cis is not a protected characteristic. The sub-associations would actually have to be “birth females” and “trans women” and so the association can’t exclude trans men.
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So much for clarity.
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… to declare *which* sub-association we’re joining? Or can we decline to say as a matter of privacy? Can the association operate a “don’t ask, don’t tell” regime whereby anyone not openly trans is allowed to join the “cis women” side, and then if outed is quietly moved to the “trans women” side?
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Falkner’s guidance and statements yesterday have made a terrible mess of those too. Consider her proposal for associations to have a separate “cis woman” and “trans woman” sub-association and then federate. So … we sign up for the association with a female passport or driving licence say: do we have
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This sort of thing is maybe more workable in members’ clubs, and when registering a membership … but we are now into the rules on associations rather than services to the general public.
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Requesting identity documents is even more useless than asking people their sex because a) most people won’t carry anything helpful in this regard (perhaps a bank card, but it won’t say their sex) b) trans people are quite likely to have documents in their new name and gender.
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Good example: there could be an occupational requirement excuse otherwise. This - by the way - is why toilets have signs saying they could have either male or female cleaners … the occupational requirement excuse doesn’t work for cleaners on sex either.
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And when anyone sensible protests “how dare you ask about my genitals and medical history… get lost, creep” what is the service provider going to do? Kick them out of the loo / changing room anyway? I can’t see a reading of the Sch 3 exceptions which allows discrimination based on *unknown* sex.
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“To try to police the unpoliceable we need to ask the unaskable”
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Well … except that Falkner also said there aren’t going to be any “toilet police” and this will all be done by “social contract”. How is invading anyone’s Article 8 privacy “necessary and proportionate” just to try to establish a trans-exclusionary social contract that doesn’t in fact exist ???
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“Being a Homer” is not a protected characteristic (and neither is not being a Homer). So an association can do stuff like this without breaching the Equality Act.
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Exactly this. She acknowledges that the existing social contract is trans inclusive but wants to change it to be trans exclusionary. Why? Why does anyone want to hate and exclude? Her whole time at the EHRC has been an exercise in transphobic social engineering.
It’s mask right off.
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She’s admitting she was planning on fucking over the 233,500 anyway even before April 16th. The Supreme Court judgment was just an “excuse” to screw over the rest too.
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She might as well have quoted Janice Raymond; Falkner clearly wants to use the EHRC as a bully pulpit to “morally mandate” trans people out of the toilet. And sports. And associations. And employment. And the NHS…
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… thousand people with GRCs, yet she wishes to change the “social contract” in a way that affects all trans people.
This sort of social engineering to attempt to turn a tolerant nation into an intolerant one is - needless to say - diametrically opposed to her job.
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The remarks about changing the “social contract” are highly informative. Recognising that toilet use is covered by convention, not enforcement, that the existing convention is trans inclusive, and she wants to change that. Also recognising that the Supreme Court judgment concerned a few…
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This. The slaughter seriously exposes the pretence that the powers arming and funding genocide are functioning democracies. Media complicity has also been key.
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Yes, because that would still be discrimination “because of” gender reassignment (positive discrimination in favour of those who have it or are perceived to have it). Check the wording of Section 13 (1), and note the special exception to positive discrimination because of disability in 13 (3).
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Also the right to be prescribed and take medicines that are proven to help, and are available to cis people for any other condition.
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Oh my God … excuse me while I puke … 🤮
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Though if you already plan to jump ship yourself and are begging the enemy destroyer ***very nicely*** to take you onboard and allow you to grift for them … well …
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Ahhh … that explains it…
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What the hell…
A sinking ship is not going to be saved by blowing half of it up while you’re still onboard, and hoping the rest will somehow stay afloat !!!
Absolutely insane.
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Thank you Sarah. It was a very revealing (but also frightening) session. The claim by the **Chair of the EHRC** that Article 8 is not engaged by outing trans people was just appalling.
I would urge a very thorough examination of Falkner’s proposed successor on this and similar points.
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I will say that there appears to be no case law in this area as to how many restrictions can be applied together. Associations have been more or less left to do what they like. If there’s an association for Welsh married lesbians, why not?
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It’s based on the fact that no offence is created by each application of Schedule 16 1 (1).
If an association does not offend by restricting to women, and then does not offend by restricting to disabled people, it does not offend by restricting to disabled women.
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It’s nothing to do with what nature “intended” or what the poor kid’s body was “organised around”. It’s to do with what will make their life liveable versus unbearable. And it is also recognised that even the best informed prediction can be wrong, and then reassignment is appropriate. Now generalise
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The most revealing thing about sex assignment is in conditions like PAIS, 5-ARD, CAH and ovotesticular DSD where it can go either way. The working criterion now is this: “In similar cases, which assignment was the child most likely to be happy with, vs which often gave them gender dysphoria”
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I’ve been aware of theoretical tricks like this for some time (and their nonsensical implications), but for Falkner to formally open the door to them is just … errr … insane.
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If it then applies Falkner’s trick of decomposing into multiple parallel associations (each with one member) and federating them, an association can include or exclude whoever it likes without further justification.
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Schedule 16 allows membership to be restricted to several protected characteristics at once. There is (in principle) no limit to how many.
This is where it gets silly. You could have an association restricting so tightly by age, race, sex, sexual orientation etc. that it only allows one member.
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I confess that I’m also the sort of legal nerd who could have suggested tricks like this, but my advice would also have been “Don’t resort to them when interrogated by a Parliamentary select committee, because you’ll sound like a lunatic”
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It reeks of desperation. Because a piece of legal advice that says “the only way for associations to do sensible everyday things is by resorting to Byzantine formulae and legal tricks” is clearly a request to Parliament to “change the law, please”
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That is positive discrimination on grounds of gender reassignment, which is illegal (except when it isn’t e.g. see Schedule 3, para 28).
The point about associations is that Sch 16 also creates exceptions around positive discrimination (when membership is restricted to that characteristic).
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Here’s Schedule 16:
www.legislation.gov.uk/ukpga/2010/1....
Associations restricted by race are allowed; associations restricted by skin colour are not. Not exactly obvious how to distinguish those, but then lawyers have to make money somehow.
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… as then no-one is actually included or excluded on the basis of a protected characteristic, and the only sex discrimination involved is indirect (so allowed if a proportionate means to a legitimate aim).
Read the Equality Act long enough, and all sorts of tricks / workarounds become possible.
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Sort of. An association can be defined by intersections of protected characteristics e.g. male at birth and gender reassignment: though that would likely also include non-binary AMAB people.
I still think that saying the association is for people who identify as women is a better approach…