WHY SINGLE SEX FEMALE SERVICES ARE NOT FOR BIOLOGICAL MALES

This would have been the first of the three articles promised in my last post. However, I’ve revised the original article to incorporate the important speech given this week by the English Attorney General, Suella Braverman, and I’ve divided the original article into two parts.

This is the first part and the second will follow shortly.

What is a single sex service?

The law on single sex female services is set out in the Equality Act 2010, which allows services to be exclusively single sex if this is a “proportionate means of achieving a legitimate aim”. I’ll say more about that below.

However, it should already be self-evident that the crucial factor in deciding whether a service should be for one sex only is knowing what “sex” means in this context.

And, as astonishing as it may seem, until very recently no-one did know. This has resulted in the most extraordinary legal confusion as various individuals and groups took a guess at the answer, including the Equality and Human Rights Commission (EHRC) in their statutory Code of Guidance on the Act.

But now we do know.

In For Women Scotland v Lord Advocate and Scottish Ministers [2022] CSIH 4, the Lord Justice Clerk Lady Dorrian, giving the unanimous opinion of Scotland’s highest civil court, said this:

The protected characteristics listed in the 2010 Act include “sex”….[A] reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age…. [W]hen one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus [a provision relating to women], as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.          

In other words, “sex” for the purposes of the Equality Act 2010 means biological sex. If a provision is made in favour of the female sex, it is made in favour of those who are biologically female, and it excludes those who are biologically male.

The court then considered the question of whether the quite separate “protected characteristic” of “gender reassignment” in the Act had any bearing at all on the meaning of “sex”.

Commenting on various previous cases which had been put before them by the parties, the court made clear that these cases did not constitute:

… authority for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.

And to put the matter beyond any doubt, the court continued:

These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined…

In other words, if a biological male is undergoing what we colloquially call “male to female” gender reassignment, that process will give him the protected characteristic of “gender reassignment” under the Act.

But it will have no effect at all on his “sex” for any of the purposes of the Act. His “sex”, for any of the purposes of the Act, will remain male.

The second part of this article will deal with the extraordinary confusion in the law which For Women Scotland has now resolved, with how that confusion may have arisen and with how it has manifested itself in all kinds of ways.

What is important, though – and what you probably didn’t know if you’re not a lawyer – is that as far as the law is concerned, once a court of the highest authority tells you what the law is, then that is what the law has always been.

In other words, since the moment the Equality Act came into force in 2010, the meaning of “sex” for the purposes of the Act has always been the meaning now set out by the court in For Women Scotland – namely, biologically female or biologically male.   

Every previous decision of an inferior court, every Code or instruction or piece of guidance which, implicitly or explicitly, proceeded from a different definition from that now provided in For Women Scotland is simply wrong. 

Why single sex services are an all-or-nothing deal

In her speech earlier this week, the Attorney General summed up nicely the way in which the Act makes lawful what would otherwise be direct sex discrimination of the most blatant kind. Speaking specifically of schools but in terms which apply equally to services, she said:  

The exceptions in [the Act] create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, [services] are legally permitted to take a single sex approach…. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.   

It is precisely on that basis that, as the Attorney General pointed out, the exceptions in the Act which allow for single sex services:

… permit direct discrimination on grounds of sex: they permit “women only” and “men only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by [the Act]. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are [biological males] using it, however they define themselves personally, it becomes mixed sex.  

This is the absolutely crucial point, and it is, frankly, a blessed relief to me (and, I’m sure, many others) to see someone of the Attorney General’s status finally making it.

It’s either proportionate and legitimate to have a single sex female service or it isn’t.

It truly is an all-or-nothing deal.

The moment you say that it’s not proportionate or legitimate to exclude even one solitary biological male from your single sex service, then at that exact moment your service ceases to be a single sex service, and you lose your whole justification for excluding any male from that service. When you admit a biological male to what was a single sex female service, you are admitting in terms that you no longer have legal justification for your single sex service. You are now a mixed sex service.

In other words, the justification provided by the Act for directly discriminating against males is not a justification that can be applied only to a few males or to most males or even to the vast majority of males. To retain its validity, it has to be applied to all males.

That is what having a single sex female service is. 

The clue is in the name.

Single sex female services not only can exclude all biological males. They must exclude all biological males.    

Direct and indirect discrimination

A closer analysis of the detailed provisions of the Act makes this even clearer.

Section 4 of the Act provides that “sex” is a “protected characteristic”.

Section 11 provides that “sex” in this context means “a man” or “a woman”.

Section 212 provides that “man” means “a male of any age” and “woman” means “a female of any age”.

As already noted above, the Inner House of the Court of Session – the highest civil court in Scotland — has now clarified that, for the purposes of the Act, “male of any age” means – and has always meant – biological male, and “female of any age” means – and has always meant – biological female. 

Section 13 of the Act provides that it is “direct discrimination” to treat a person with a protected characteristic less favourably than others because of that protected characteristic. For the purposes of the protected characteristic of “sex” this means treating a man less favourably because he is a man or a woman less favourably because she is a woman.

Section 29 of the Act then prohibits a “service-provider” as defined from discriminating in its provision of a service to the detriment of persons requiring the service.

It should therefore be immediately evident that a single sex female service will fall foul of section 13 without some further provision that allows for exceptions to this form of direct discrimination.

More on that below.

Section 19 of the Act provides that, subject to the exception below, it is “indirect discrimination” to apply to a person with a protected characteristic a “provision, criterion or practice” which puts, or would put, the person “at a particular disadvantage” compared to others who do not have that characteristic.

Thus, for example, a “provision, criterion or practice” of a local authority to close all ramped entrances on a block of flats during renovation work could be indirect sex discrimination on the grounds that women are more likely to be the carers of children so that, even although all residents and visitors are denied this access during the work, women are put “at a particular disadvantage”.

The exception which can justify what would otherwise be indirect discrimination is this: if it can be shown that the “provision, criterion or practice” which would otherwise constitute indirect discrimination is “a proportionate means of achieving a legitimate aim” then it will not be discriminatory.  

Sharp-eyed readers will have spotted that this exact phrase, “proportionate means of achieving a legitimate aim” has appeared already above in the context of the provisions of the Act which justify single sex female services, and the exclusion of biological males from those services.

More on that below too.

For now, let’s just consider whether section 19, and indirect discrimination, has any relevance to single sex female services.

As already noted above, without some provision providing an exception, single sex services of any kind self-evidently constitute direct sex discrimination of the most blatant kind. So any form of exception for female single sex services will have to justify the blanket exclusion of all males from those services.

Suppose then that there is such an exception and that its terms are met so that a single sex female service is lawfully functioning. If it’s possible for any male to invoke section 19 to say that this lawful direct discrimination against him as a male is also somehow unlawful indirect discrimination against him because he possesses some other protected characteristic such as age or race or religion or gender reassignment, then the whole point of allowing the direct discrimination is lost.

That is to say – again – that single sex services are an all-or-nothing deal. If section 19 could somehow be invoked to allow a male into a female single sex service because he is, say, old or white or Christian or undergoing gender reassignment, then there is simply no point in making any exception for single sex services in the first place. As soon as any male is more disadvantaged than any other male by being excluded, your single sex female service is gone.

As the Attorney General has quite rightly pointed out, that cannot possibly have been the intention of Parliament.

In light of what the court has told us in For Women Scotland, then, any reading of section 19 which would have the effect of converting a single sex service into a mixed sex service is simply unsustainable.

How and why the Equality Act allows single sex spaces

As already noted above, section 29 of the Act imposes a duty on service providers not to discriminate against those with protected characteristics.

In the case of providers of single sex female services, the relevant exception to that duty can be found in paragraph 27 of Schedule 3 of the Act.

Paragraph 27 provides that if any one of six conditions is satisfied and if the provision of services to only one sex is “a proportionate means of achieving a legitimate aim”, then section 29, so far as relating to sex discrimination, is not contravened.

In other words, if a single sex female service can satisfy one or more of the conditions and can show that excluding all males is a proportionate means of achieving a legitimate aim, then that service will not be discriminating against any excluded male on the ground of sex.

For the reasons given above, that service will not be discriminating either against any male on the grounds of any other protected characteristic that any male may possess because otherwise there would be no point in having the exception in the first place.

This is precisely the point that the Attorney General was making when she said:

In law, single sex services are intended for one sex only: that is the very thing permitted by Schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are [biological males] using it, however they define themselves personally, it becomes mixed sex.  

Regarding the six conditions and the justification of being proportionate and having a legitimate aim for a single sex female service, I’m pleased to say that this is one of the few aspects of this whole area which is not controversial. What is required to satisfy one of the conditions – for example, that a person of the female sex might reasonably object to the presence of a person of the male sex – is well-established, as are legitimate aims such as maintenance of decency, privacy and dignity.  

The architecture of Schedule 3 in general and paragraph 27 in particular is also instructive.

It cannot be emphasised enough that the clear – and sole – intent of paragraph 27 is to make lawful what would otherwise be direct discrimination against the opposite sex.

It is highly significant that, as noted above, paragraph 27 achieves this by providing for single sex services exactly the justification of proportionality and legitimacy that is provided in section 19 for the justification of indirect discrimination.

In doing so, it effectively treats direct discrimination and indirect discrimination as one, and makes both forms of discrimination lawful if the single sex justification is established.

And it has to do this.

Because if it were legally possible for any male to establish that a single sex female service had discriminated against him on any grounds such that he had to be included in the service, then the single sex female service would by definition lose its justification for being a single sex service.

Gender reassignment

Paragraph 28 of Schedule 3 provides as follows with regard to single sex services:

A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(c) the provision of a service only to persons of one sex.

Before the court’s clear decision in For Women Scotland, this was an obscure and highly controversial provision. Now, it isn’t.

Firstly, for the purposes of single sex female services, the provision must apply to biological females who are undergoing gender reassignment. If a single sex service were to exclude a so-called “transman” from its female services on the grounds, say, that her beard and deep voice were “triggering” for rape victims, that is clearly an exclusion made because of her gender reassignment.

As such, it clearly requires justification under paragraph 28 and, if justification cannot be established, it will equally clearly be direct discrimination against the protected characteristic of gender reassignment.

Secondly, it may be arguable that a biological male in possession of a Gender Recognition Certificate (GRC) under the Gender Reform Act of 2004 (GRA) falls to be regarded as acquiring some form of legal fiction which allows him to be classed as a “biological female” for the purposes of the Equality Act.

In Fair Play for Women Ltd v The Registrar General for Scotland and The Scottish Ministers [2022] CSIH 7, the highest civil court in Scotland said this:

There are some contexts in which a rigid definition based on biological sex must be adopted.

And this:

Some of these limitations have been carried over to apply even where a person has successfully obtained a GRC under the GRA….The point which these examples all have in common is that they concern status or important rights.             

As I’ve noted elsewhere, it’s a pity that the court didn’t say more about where exactly a GRC fits into the definition of “biological female” for the purposes of the “status” and “important rights” conferred by the Equality Act.

My own interpretation of these statements is that a biological male with a GRC remains a biological male for the purposes of single sex provision and that there is no need to invoke paragraph 28 of Schedule 3 to exclude him, along with all biological males, from single sex female services.

If I’m wrong about that, and if paragraph 28 does require to be invoked in order to exclude a biological male with a GRC from single sex female services, then that will in my view have serious consequences for the Gender Recognition Reform (Scotland) Bill currently making its way through the Scottish Parliament. I’ll deal with that in detail in the last of the forthcoming articles.

(Spoiler: if having a GRC does turn a biological male into a “biological female” for the purposes of the Equality Act, then it is simply absurd for the Scottish Government to claim, as they do, that the Bill’s provisions allowing biological males to obtain a GRC by essentially self-identifying as female do not intrude into the reserved area of the Equality Act. Clearly, they do, and as such the Act, if passed, will be struck down by the courts as outwith the competence of the Scottish Parliament.)

Whence all the confusion then?

If the legal position on single sex spaces is as clear and rational as I have tried to set out above, why then has there been so much confusion and uncertainty on the topic?

That will be the subject of the second part of this article but I’ll give another quick preview here.

In my opinion, the reason for the confusion is simple, and it extends to the commentary on the Act itself, to the EHRC’s statutory Code and its various attempts at more informal guidance and even, as I’ll seek to show, to at least one English judicial decision.

Before For Women Scotland, many people – including many lawyers, and even some judges – wrongly believed that the protected characteristics  of “gender reassignment” and “sex” under the Act were to be conflated, and that any person undergoing gender reassignment was to be treated as being of the “gender” to which they were reassigning.

And, crucially, by “gender”, they meant “sex”.

I hope you’ll come back for this second part and for the other two articles which set out the evidence for this belief and the consequences of its being held so widely, in appropriate detail.

Longstanding – and longsuffering – readers of this blog know that this may not be as soon as I presently intend but I hope you’ll find it worth the wait.   

31 thoughts on “WHY SINGLE SEX FEMALE SERVICES ARE NOT FOR BIOLOGICAL MALES

    1. Indeed, Andrea, and the large amounts of taxpayers’ money that is being siphoned off by the various Scottish arms of Stonewall, then, of course, the payments for being a member of the Stonewall Diversity Scheme. The Mafia could learn a thing or two from them. The cruellest and most unfair thing is that females have to ‘share’ their allocated resources or face having them cut off, while the trans lobby shares nothing except its vile activism.

      Liked by 3 people

  1. Gordon: another wonderfully lucid and logical account of the law. What has been happening is that these trans organisations have simply ignored the law and made false (knowingly?) statements to various businesses and companies and public organisations that they have the law on their side. For me, the majority of females who have been ‘othered’, arrested or otherwise browbeaten, the children who have been ‘transitioned’ without adequate scrutiny and the organisation and bloggers who have been trying to clarify the law, have been treated as second-class citizens. These trans lobbyists rule by fear and intimidation, are often associated with men’s rights organisations and have no regard for the law.

    I hope that the man at the top of Edinburgh Rape Crisis Centre will be removed immediately. A woman reported recently that she, a rape survivor, had to sit through a session with a ‘trans woman’ who avidly listened to the women but never volunteered ‘her’ own trauma after having kicked up a fuss about gaining access. This ‘trans woman’ is an autogynephile, as described in all studies done, and gets ‘her’ rocks off by being a sexual parasite among females. It is quite sickening and horrible, and how any government that purports to represent the people, it is an utter disgrace.

    Both the Scottish government and the other parties at Holyrood should hang their heads in shame. No amount of evidence has sufficed that sexually-sick men are using the law to gain access to all kinds of female services, sports, jobs, etc. The so-called ‘trans woman’ who beat a female child of 12 or 13 in some competition in America was a father of three and aged about 32. It will not be enough for the law to be regulated and spelt out – although that is a huge step forward, but the police, for example, are going to have to start arresting these men instead of intimidating women who stand up for their rights.

    One thing I wanted to ask, Gordon: does the SG have any legal advisers because as far as I can see, all this has had to be taken to court, vast amounts of public money wasted, on the one hand, or having to be crowd-funded, on the other, and all the time, the law has been plain. Wilful misinterpretation would be my guess, but, then, I’m a cynic.

    Liked by 4 people

    1. Thanks, lorncal, that’s much appreciated and, as you know, I share your views on the things you mention. I believe — as again I’ve said before — that when the whole ludicrous edifice finally collapses, it will do so quickly, as McCarthyism did, and everyone will wonder how it could possibly have happened in the first place.

      On your final question, yes, the SG has an incredible number of lawyers on the payroll, including some that I know personally to be good at their jobs. I think we have to look to Gramsci and his account of cultural hegemony to explain how they have come to be an active part of this Orwellian nightmare.

      Liked by 1 person

  2. Gordon. Immense respect for your articles and for the tenacity, courage and integrity of ‘For Women Scotland’
    The battle remains to challenge every public sector organisation including local authorities, health services and third sector (i.e. Women’s Aid) that currently ignores the spirit of the law. Our taxes are used by ScotGov to defend actions that we, contributors to FWS, are having to take against them. I would add that I wish the law forced organisations to provide single sex spaces where appropriate (with specified criteria relating to safety, dignity, privacy and fairness). To explain, that it stated ‘shall’ rather than ‘may’ utilise exemptions from sex discrimination legislation.

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    1. Thanks, Joan, I really appreciate the praise and I agree completely about the amazing women at For Women Scotland. Once I get the second part of this article up, I’ll do the one that addresses your point about the unlawful actions of the SG and all their front organisations — actions which, as you say, we’re paying to defend in court against the justified challenges that we’re paying for too! Joe Heller would have a field day…

      Liked by 1 person

  3. At risk of showing myself to be totally dim, does this ruling have any impact on the sorts of decisions made by Local Councils on, for example, insisting on providing only mixed-sex changing rooms for sports and recreation facilities like swimming pools, especially when it has been made clear that this mixed-sex status excludes people of both sexes from using the facility?

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    1. It ought to, particularly also in terms of the Scottish Government demanding that schools offer unisex toilet facilities rather than separate provision as is required under legislation and regulations.

      Liked by 1 person

    2. Roscurwood, you’ll have seen lorncal’s reply, with which I agree. I’ll be doing a post in this series on the topic of this kind of unlawfulness by public authorities, though long-suffering readers of the blog know that my breezy predictions of when I’ll get to these things are not to be relied upon. Hope you’ll come back for it whenever I do get to it.

      Liked by 1 person

      1. Och you are always worth waiting for Gordon, although sometimes I do wonder if Godot is going to get here moments before you arrive 😁

        I do despair time and again how we have plunged to these depths of hell but thank goodness we have so many good men and women helping us climb back out – For Women Scotland being one group I have a particular admiration for, but there are so many others. Thank you all

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  4. roscurwood: I know you weren’t addressing me, but that was partly my point, too. The ‘trans’ lobby and its Stonewall Diversity Champions show no respect for any law that does not afford them all their own way. There have, literally, been hundreds of blatantly illegal actions taken by public organisations, businesses, etc., on behalf of Stonewall and its arms, that you would think there is no law.

    So many people, specially women, working with the ‘trans’ warriors live in fear of being thrown out of employment if they raise the issue. It is a scandal that so many people who should know better are being cowed by a such a ruthless, pitiless and totally vicious mob lacking any modicum of compassion.

    They are determined to take away all female spaces and rights, and they are determined to enter female spaces, even against the law. By and large, the reasonable ones – and there are a few – are sufferers of dysphoria, and have no desire to enter female spaces and rights, but they are very few. By a huge margin, the ones that females need to get the measure of, and fight against, are the autogynephiles – the sexual fetishists, who are mainly heterosexual, have had no surgery or hormones and who seek both validation and possible sexual predation based on a condition they do not have.

    If the police will not protect females, but, instead, do the ‘trans’ activists work for them, what price the law? The police need to withdraw from the Stonewall Diversity Champions and do the job they are paid to do instead of pandering to sexual predators and people who require mental health provision. Likewise councils and all public bodies – and withdraw public funding from these people as they do nothing for ‘trans’ that is obvious to anyone. I understand that Stonewall has a very healthy income and bank balance and does not use it to help ‘trans’ people, whoever they are.

    Liked by 1 person

  5. Wow Lorna, I honestly hadn’t thought so much in those terms as in the money-saving exploits that have robbed our area of a beautiful library and a community built swimming pool, built by volunteers on donated land which they sold off and ignored two petitions signed by well over half the population. The pool and library have been ‘replaced’ in the new school building well out of the way of the town centre now, that we didn’t want either, and whose clever temperature control opens windows at the correct temperature even if it is raining ( and they can’t be closed, excellent educational support, that). The stairs have had to be replaced because they were dysfunctional and the swimming pool spectators gallery is placed so that the two nearest lanes are invisible from the gallery. I name but a few of the faults. But the two local pools now have mixed changing rooms, and the disabled facility only serves one person at a time and its first come first served, and a fair few people no longer use them.

    I seethe with rage about it.

    But not as much as about the pretend consultations with overflowing local attendance all of which loudly opposed the reduction of NHS services that force women in labour to be driven away from home for three hours on a treacherous road to Inverness hospital, our ‘centralised’ hospital service.And it must be even worse for them now that the roads are pitted inches deep with ruts and holes so many they can’t be avoided. We have had A&E, that worked fine, closed. And we apparently consented to having our truly excellent nursing home and care home facility closed down in favour of a ‘hub’ of (I might be wrong here) five rooms to be built on some day-care centre. I hope the day centre isn’t by the same architect as designed our school. One might think it a conspiracy to close down the far north so we would stop bellyaching about the number of wind-turbines that have sprung up all belonging to different groups with no real accountability to the local scene, and while they pay enough to keep the local community hall open, our contribution to the national grid receives no recognition nor any gratitude. All was running smoothly and increasingly hopeful before Thatcher insisted on privatising local councils and we became annexed to Inverness ( we did vote for that) but it still all was improving before Ms Sturgeon’s weird governance has increasingly ignored the need for cleaning up and maintenance – perhaps that is because so many of her acolytes seem not to have matured beyond adolescence. Well I am aware that this rant is mostly irrelevant to the ruling, but it would be oh so good to take the Local Authority to court and make them restore our original amenities using this ruling as fuel. So added to your ideas, what a grim prospect without this ruling. Be so so good to get some open honest discussion (but of course that doesn’t happen now either) Well I’m off to take my dog for a swim. She doesn’t have concerns about anything much except how long she can persuade me to stand on the bank waiting….. That’ll improve my testy frame of mind. Thanks for listening though, if you survived the first line….

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  6. On this part of your piece:

    “(Spoiler: if having a GRC does turn a biological male into a “biological female” for the purposes of the Equality Act, then it is simply absurd for the Scottish Government to claim, as they do, that the Bill’s provisions allowing biological males to obtain a GRC by essentially self-identifying as female do not intrude into the reserved area of the Equality Act. Clearly, they do, and as such the Act, if passed, will be struck down by the courts as outwith the competence of the Scottish Parliament.)”

    Not being a lawyer, but I can’t see how the final sentence applies.

    Glancing through Schedule 4 of the Scotland Act 1998 (as amended), I can not see any place where is mentions the GRA, or Equality Act as being reserved. As such it would appear to be within the power of the Scottish Parliament to (explicitly or implicitly) repeal or amend either or both Acts.

    Hence I don’t see why (despite what SG have said), the current Bill would not change the status quo, without being subject to being struck down by courts. So despite being absurd, it would seem capable of becoming a valid Statue for the courts to interpret.

    I’d appreciate it if you could point out the section / text which removes impact upon those Acts (EA, GRA) from the competence of the SP, as I may well be missing it.

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    1. Or even in Schedule 5.

      Where there is a reference to EA (L2 – Equal Opportunities), which is difficult to interpret (in part due to the formatting), but appears to be a narrowly drawn exception to an exception.

      Unless one is to take an expansive view of “The provision falling within this exception does not include any modification of the Equality Act 2010, or of any subordinate legislation made under that Act, […]”?

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    2. Ah, PB, now you’re REALLY making me give a spoiler! The relevant provisions are in section
      L2 of Schedule 5 of the Scotland Act 1998, as discussed at length in the For Women Scotland case that I’ve linked to above. The reservation is of “equal opportunities” defined in part as “the prevention, elimination or regulation of discrimination between persons on grounds of sex…”

      There are exceptions to the reservation which are again discussed at length in For Women Scotland but those exceptions ABSOLUTELY DO NOT INCLUDE changing the definition of “sex” in the 2010 Act from biology to self-ID as will happen in Scotland IF the current Bill is passed and IF a GRC changes your biological sex for the purposes of the 2010 Act. (As you’ll have noted, I don’t think it does.)

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  7. Thanks for that, Gordon. Superbly clear for this non-lawyer.

    Can you say what the implications are for the (misnamed) gender pay gap information requirements of s.78 of the Equality Act? I know it clearly says it relates to the “differences in the pay of male and female employees”, but we know some organisations include trans-identifying males as if they were female, skewing the data and the original purpose of collecting it. Even the Government’s guidance on this seems to allow and encourage this: The gender pay gap data you must gather.

    Can you see how an organisation could be challenged on this? Should the government be correcting their guidance?

    Liked by 1 person

    1. Alan, please accept my sincere apologies for the delay in replying to your comment. The short answer to your important question on section 78 is that I don’t know and had meant to do some research in order to answer it. As a reader of the blog, you’ll know enough of my ways to know what has happened to that fine intention, but one of these days…

      Meantime, many thanks for the praise and for your highly informed support of the blog in your interactions with others on social media, which I’ve seen and much appreciated.

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  8. I loudly echo many other commenters’ admiration and gratitude for the careful clarity with which you have explained the law in this area, and I apologise for being such a slow thinker myself, as to need to ask a further question: but — is it the case that a sporting competition that has opened participation to ‘trans women’ has thereby opened participation to any man?

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    1. Goodness me! I think I might have answered my own question….. Is the answer, ‘Yes, and that’s why participation in sporting competitions should be regulated not by ‘trans’ status, but by some physiological test’?

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  9. Yes, Andrew, if any biological man is allowed into any area of female participation based on biological sex, that finishes that space/area/sport/job/service, etc. being a single-sex space/area/sport/job/service. That is the whole point of Stonewall’s push to have self-ID introduced, so the 2010 Equality Act with its various strict definitions will be rendered useless to protect women and girls. There is a whole grey area that exists around men who have had surgery and hormone treatment and have/want a GRC (gender recognition certificate), those men who have had no surgery or hormone treatment and have/want a GRC and those men who see no reason to get a GRC if they can legally (because who is going to check?) get what they want through self-ID. Self_ID is the open door with the key thrown away.

    We really need to understand that, if one biological man, legally or by stealth, gains access to female spaces, etc. these are no longer single-sex. We also need to start asking why ‘trans’ people and the ‘trans’ lobby never campaign for third spaces or to enter male spaces safely? It is not just a matter of safety for ‘trans’ women, it is a deliberate push to gain entry to female spaces, etc., to overturn many years of single-sex spaces, services, etc. Between 100 and 200 women and girls have been killed this year; no ‘trans’ woman has been killed.

    Stonewall is awash with public and private money, yet not one ‘trans’ refuge has been established, not one ‘trans’ rape centre, not one ‘trans’ loo or changing room. These facilities did not come to women by magic from the fairies at the bottom of the garden: women fought long and hard for them, enduring abuse, both verbal and physical. The cynicism of the ‘trans’ movement is deplorable and they should all be called out on it; the abuse of females and the determination to steal their rights should also be called out because it is deliberate as are the bad faith intentions behind it.

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  10. Women did not have to fight long and hard, etc, to gain the right to have sexually segregated loos and changing rooms. And my memory, which goes back to the time the very first women’s refuges were established, is that they were only de facto ‘segregated’, because there were so few male rape victims who required to be rescued from a home-and-family trap.

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  11. Oh, yes they did, Andrew. The very first female public loo was burned to the ground by a mob because they did not want women accessing public spaces unaccompanied or for any length of time. Women did not fight for segregated loos, they fought for loos full-stop. The very first rape crisis centres were established by women for women (95-98% of sex crimes being committed by men, 98% victims being female or it could be the other way round, but you get the point, and men are raped by other men, usually, too or are you disputing that?). Any society that wishes to call itself civilised would not quibble about affording 51-52% of the population a safe space and rights, surely? Stonewall’s and the ‘trans’ lobby’s aims directly affect female spaces and rights in a way that is neither equitable nor safe. As I have said many times, why does the awash-with-cash Stonewall not campaign for, and help to establish safe spaces and rights for ‘trans’ people? Could it be that gaining access to female spaces and rights is what their actual campaign is all about? I rather think it is.

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  12. PThe decision very much reflects the sentiments of ordinary men and women

    So how on earth did Sturgeon and the Scottish government get us into this utter mess.

    The whole chick’s with dicks in protected safe spaces, as many would define the issue, was clear from the start. Folks inherently understood that. And now an erudite review of the law supports that mass premise.

    Mercifully, based on this ruling it should now be possible for folks to reverse much of the absolute nonsense that Sturgeon and her government have sought to introduce.

    Well done the biological women who pursued his judgement.

    And thank you to Gordon for explaining the court judgement.

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  13. “We have cut the links between child and parent, between man and man, and between man and woman. No one dares trust a wife or a child or a friend any longer”. Orwell, ‘1984’.

    ‘The traditional political left is gone. It was usurped as Orwell predicted, via the seamless manipulation and meaning of language, and replaced by US Democrat ‘liberals’ and UK Labour ‘centrists’ who *behaviourally* are as far-right as the Trumpian Republicans and Johnson’s Tories… So with ‘The Party’ having removed one of those threats – Jeremy Corbyn’s Labour Party – so too it follows that they had to infiltrate, ideologically destabilise and fracture the most powerful of all threats to the British State; the long-established Scottish National Party. Regardless of pretext, Tory militarisation of Brexit Britain is inevitable’.

    ‘Indicating Charrington: 13 Red Flags Signposting The Party’s US ‘Liberal’ & UK ‘Centrist’ Plants’ (2022) https://wp.me/p94Aj4-3gT

    Johnny McNeill
    #GaslightingGilligan (©2017) 
    Twitter: @GasGilligan (*free download*)

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  14. Gordon, this is a brilliant resource for clarification when debating but I have a question for you.

    Now I grew up in a world where the social contract around public facilities was clear and unequivocal – the signs referred to biological sex because gender identify incongruence was so rare the public were largely unaware of it and therefore had little effect on such facilities. So,…

    If a sign is put up in public to indicate the facilities being provided (toilets, changing rooms etc) are for Women or Men (according to the signs) is the provider entering into a social contract with the public in compliance with the definition of those word as per the Equality Act or can they claim they have a different meaning which includes the opposite biological sex? If their intention is to use a different definition wouldn’t they have to make this explicitly clear on the signage if they wish to succeed in any claim made against them?

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