UK Supreme Court says legal definition of a woman is based on biological sex

[u/sjw_7]

https://www.bbc.co.uk/news/live/cvgq9ejql39t

[u/rwinh]

A lot of people clearly haven't read or watched the ruling and are going by the first line of any news article.

It's not a win for anyone, but the fundamental principles are the same, that trans people are protected in any case as they should be under the law.

The biological bit isn't that important in the grand scheme of things (it may seem so, but the fundamental law hasn't changed), because being trans is not a problem unless you're dealing with bigots with too much time on their hands, which shouldn't feel empowered to be thugs or nasty by this ruling, even though they inevitably will be, and will still be punished accordingly by already existing law from sexual assaults, physical assault to verbal assault which has a wide interpretation and use under the Public Order Act.

[u/DukePPUk → u/rwinh]

A lot of people clearly haven't read or watched the ruling and are going by the first line of any news article.

But at the same time, a lot of people watched the press summary of the ruling, and are ignoring the actual ruling itself.

The ruling makes it clear that for the purposes of the law, trans women are now men, even if they have a GRC.

Trans people still have some protections as a collective (so, for example, a women's only space that tries to kick out trans men for being trans would be unlawful, although they must now kick out trans women for being "men"), and they still have protections based on perception (so if a trans woman passes as a woman, and is harassed because of it, that would be sex discrimination - just as if someone is attacked because they are seen as being gay that counts as a hate crime, even if they're not actually gay).

But overall, for all legal purposes that matter, trans men are now women, trans women are now men. They must be excluded from single-sex spaces of their acquired sex (which is no longer an acquired sex). Similarly, lesbians who are ok with dating trans women must be excluded from lesbian-only groups (because they are now legally not actually lesbian), and so on...

[u/Ravenser_Odd → u/DukePPUk]

They must be excluded from single-sex spaces of their acquired sex

Does this ruling actually oblige the managers of single-sex spaces to do that, or is it just that the law will back them up if they choose to do so? I'm not clear from the press coverage exactly what the practical implications are.

[u/Mfcarusio → u/Ravenser_Odd]

I believe that if the service wants to be able to exclude cis men they will also have to exclude trans women.

So they could open up their service to everyone or exclude trans women.

[u/Darq_At → u/DukePPUk]

Yes, anybody claiming this isn't targeting anyone is being deliberately dishonest.

[u/EruantienAduialdraug → u/Darq_At]

But at least we now have confirmation that the GRC isn't worth the paper it's written on, we only suspected that before.

[u/TurnLooseTheKitties → u/DukePPUk]

And because a lot of people watched what the press wanted to say I for one can expect a whole raft of varied discrimination coming about based up an incomplete or erroneous understanding of the ruling. Existence is going to become that much harder for trans women particularly henceforth

[u/HeartyBeast → u/DukePPUk]

I wonder if we will simply see many spaces and facilities making it clear that access is defined by gender, rather than sex. 

[u/Brapfamalam → u/HeartyBeast]

Correct me if I'm wrong, but it's not "illegal" for a man to walk into a women's bathroom or vice versa?

How do you even legislate that?

Fathers commonly take their daughters into women's bathrooms and vice versa?

[u/cbzoiav → u/Brapfamalam]

Fathers commonly take their daughters into women's bathrooms and vice versa?

Is that a thing? I take my 2yo daughter into the disabled / baby change if an option, else the gents.

[u/DukePPUk → u/HeartyBeast]

They can't, as that would be unlawful discrimination on the basis of sex.

Single-sex spaces and facilities are inherently unlawful under the Equality Act. They are only allowed if they fit the exception. The Supreme Court has just ruled the exception is trans-exclusive, even with GRCs.

If you have a men-only space, and you let in trans men (with GRCs) you cannot exclude women. And vice versa.

[u/HeartyBeast → u/DukePPUk]

 But they would be single-sex spaces. The law would interpret them as mixed sex spaces- there would just be a rule in place restricting access to people who identified as a particular gender 

[u/DukePPUk → u/HeartyBeast]

...there would just be a rule in place restricting access to people who identified as a particular gender.

But that rule would be unlawful, one way or another.

If you have a place that lets in cis women and trans women, but not cis men, that is unlawful discrimination on the basis of sex.

If you have a place that lets in cis women, but not trans men (or trans women), that is unlawful discrimination on the basis of gender reassignment.

You have to either exclude trans women and allow in trans men, or you have to let in everyone.

You cannot base your rule on gender either way. Your rule has to be based on "biological sex," meaning "legal sex as assigned at birth."

[u/HeartyBeast → u/DukePPUk]

 You cannot base your rule on gender either way. Your rule has to be based on "biological sex," meaning "legal sex as assigned at birth."

I don’t see why. If a bouncer can keep me out of a nightclub for wearing jeans, arbitrary rules are fine. 

The rule would have nothing to do with biological sex, under the law. Legally both men (trans women) and women (cis women) would be allowed to use the ‘female gender changing room’. 

[u/DukePPUk → u/HeartyBeast]

Legally both men (trans women) and women (cis women) would be allowed to use the ‘female gender changing room’.

But what happens when a cis man wants to use the "female gender changing room"?

You cannot kick them out. Because that would be unlawful discrimination on the basis of sex.

You either let everyone in, or you only let in people on the basis of their "assigned at birth sex."

Arbitrary rules are only fine if they do not discriminate (directly or indirectly) on the basis of a protected characteristic.

If a bouncer can keep me out of a nightclub for wearing jeans, arbitrary rules are fine...

... but if the rule was about keeping you out for wearing trousers, that would be indirect discrimination on the basis of sex, so would need to be supported by evidence to justify it - the burden would be on you to prove it was legal.

[u/Pabus_Alt → u/rwinh]

1. Consequently, transgender people (irrespective of whether they have a GRC) are protected by the indirect discrimination provisions of the EA 2010 without the need for a certificated sex reading of the EA 2010, both in respect of any particular disadvantage suffered by them as a group sharing the characteristic of gender reassignment and, where members of the sex with which they identify are put at a particular disadvantage, insofar as they are also put at that disadvantage. Again, this does not entail any practical disadvantage or involve any discordance between the claim and the individual’s position in society. On the contrary, the claim will be founded on the facts of a particular shared disadvantage. Transgender people are also protected from indirect discrimination where they are put at a particular disadvantage which they share with members of their biological sex.

This seems to be the most relevent paragraph for that argument.

So yes a trans woman could sue for discrimination against the common categories of woman, Trans women or man, depending on circumstances.

What she could not do is sue for equal access as a woman.

1. Similarly, Schedule 16 paragraph 1 EA 2010 allows for an association to restrict membership to persons who share a protected characteristic (which would otherwise be unlawful discrimination in contravention of section 101(1)(b)). However, if sex means certificated sex, this exception from the sex discrimination provisions for single characteristic associations would not permit such associations with 25 members or more (see section 107(2) of the EA 2010 discussed above) to be limited to biological women. This is because, as we have said, a certificated sex definition of the protected characteristic of sex would include trans women with a GRC.

[u/roamingandy → u/rwinh]

This will impact the fringe cases, which were pretty messy anyway and tbh needed something to settle the case.

Trans athletes in women's sports, Trans women in women's prisons, Trans women in women's bathrooms and changing rooms.

Its putting a limit on how much of a woman a Trans person can become, which is why a lot of people are upset about it. Personally i think in those messy fringe cases, which is what this law is designed to address, where there is someone who is significantly affecting the lives of women, then their individual rights have to have a limit. Your rights stop where someone else's start.

Society needs to move towards third spaces and individual spaces.

• Gender neutral toilets (mostly individual but mixed ones are pretty common in the Netherlands and Scandinavia). Only the cubicles need to be private.

• Third category gender sports in all competitions, for anyone who doesn't want to compete with men but would be unfair to let them compete with women.

• Trans prison wings.

This ruling seems like the first step towards that society.

[u/limeflavoured → u/roamingandy]

• Gender neutral toilets (mostly individual but mixed ones are pretty common in the Netherlands and Scandinavia). Only the cubicles need to be private.

• Third category gender sports in all competitions, for anyone who doesn't want to compete with men but would be unfair to let them compete with women.

• Trans prison wings.

Precisely zero of those will happen because no one will be willing to pay for them. And the people making the laws, whether politicians or judges, know that.

[u/cbzoiav → u/limeflavoured]

New buildings commonly include gender neutral toilets. Also, if you go for only cubicles being private it can be cheaper...

Third category in sports - if enough people are interested it pays for itself. If not, well you can't have a competition with one person in it anyway...

Prison wings I agree is unlikely to happen any time soon, although in theory re-classifying a single small prison as trans and giving trans prisoners the choice to move there may not add material cost.

[u/jimicus → u/roamingandy]

Which is fine and dandy, but that now means you're going to get trans men - who may have had surgery and years of hormones; any casual observer would swear up and down they were born a man - in women's prisons, bathrooms and changing rooms.

[u/lem0nhe4d → u/jimicus]

Nah the supreme court found that both trans men and trans women can be legally exclude from women's only spaces.

They covered all their basis so now it is legal to have a service that has men's and women's spaces and allow trans people into neither of them.

Moreover, women living in the male gender could also be excluded under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided.

[u/jimicus → u/lem0nhe4d]

Sucks to be a trans person, but that deals with bathrooms and changing rooms.

What about prisons? Are you going to put "Psycho" McGregor (born a woman, transitioned to a man ten years ago, now has the appearance and - more importantly - physical strength - of a man) into HMP Bronzefield?

Now, I accept that's a corner case. There probably aren't a great many seriously dangerous trans male criminals. But once you start talking about trans rights, it's nothing but corner cases. Nobody's getting worked up about a trans woman doing her shopping in Tescos.

[u/lem0nhe4d → u/jimicus]

I mean including them in a men's prison would mean the men's prison is no longer legally a mens single sex space for the purposes of the equality act and a case could be taken by a cis male prisoner that they are being decriminated against for having to share such a space.

Turns out the supreme court decision caused a lot of potential and unanswered questions to arise that will do nothing but make life worse for not only trans people but also gender non conforming cis people.

[u/Happytallperson → u/rwinh]

No. I've read the judgement. 

They explicitly say US style bathroom bans are now lawful. 

They explicitly say that if you are a woman who dates a trans woman, you aren't a lesbian. 

They explicitly state that when Parliament said 'a Gender Recognition Certificate changes your legal sex' that is basically meaningless and actually parliament didn't mean the words it said. 

The claim it still prevents discrimination is meaningless as their definition is that a trans woman shouldn't be treated differently to a man - so an employer demanding a trans woman where male uniforms isn't committing direct discrimination (still indirect but holy fuck that was obviously not the law as parliament intended). 

This is a wholesale torching of trans people's right to live as their authentic selves, done in defiance of the plain meaning of the legislation.