Gender again. Sorry!

[AuroraSaab]

Nowhere does the judgement say the policy of access to single sex facilities was lawful. In fact it says the policy was not lawful:

The case was not about the Transition in the Workplace (TIW) policy overall - it specifically says that when they say 'policy' in the judgement they mean the contested part re access to single sex facilities. This policy was not lawful. They could find no law that did render it lawful.

Again, you're just trying to spin the judgement to confuse people into thinking it says something it doesn't.

 

[monkers]

Nowhere does the judgement say the policy of access to single sex facilities was lawful. In fact it says the policy was not lawful:


View attachment 12374

The case was not about the Transition in the Workplace (TIW) policy overall - it specifically says that when they say 'policy' in the judgement they mean the contested part re access to single sex facilities. This policy was not lawful. They could find no law that did render it lawful.

Again, you're just trying to spin the judgement to confuse people into thinking it says something it doesn't.

There is a broader point. Policies in themselves are not judged as being lawful or unlawful. The lawfulness or unlawfulness always results from the unfavourable treatments, detriments, disadvantages that result from the implementation of a policy.

I can see why you flagged this, but if you look at the precise wording you can see the legal point being made -''we were unclear what was meant by the submission that the policy was lawful''. This is flagging a false claim from the respondent of a legal position on that basis, since a policy in itself is neither lawful or unlawful. You can see my point when you notice that the wording here places the word lawful in quote marks. They are playing back the words seen in the submission, rather than using their own words.

But back to the broader point.
The two tests are;
was the policy pursuing a legitimate aim? In this case, yes it was.
did the implementation of the policy give way to failings, in this case yes it did.

As you see when you read the words of the judge rather than the words being quoted from the submission, the policy was pursuing a legitimate aim. In that sense the policy is 'lawful' in the sense that the respondent intended. The failure to implement was found to be unlawful (as decided by the tribunal), but as I already told you, this is on the ground of the Workplace Regulations protections and not on the basis of the EqA protections. The judge is then saying, and to paraphrase, 'well if we find ourselves in a position of attempting to follow that faulty line of reasoning, then we are in the position of having to say it is unlawful'.

Rather than finding me spinning, you've quoted the part that accords with what I had said - the policy failed to implement the Workplace Regulations (rather than the EqA).

This is not me disagreeing with the judgment, but understanding the nuances in the legal language used in argument.

I asked you a question about three marked doors and would any satisfy your own requirements. This wasn't a set up, it was intended as a means to show that there was potentially a way the Trust could have worked to successfully implement the policy they had in place. Had you answered ''yes'' we could have reached agreement and not needed to continue. Had you answered ''no'', and explained I could have given more thought to the complaint. Unfortunately you chose not to answer the question. Perhaps if you'll answer the question now, we can make progress?

 

[AuroraSaab]

The judgement says they looked for any legislation that might have found the policy of access to be lawful - workplace regs, Equality Act, and human rights - they found nothing in them that would make access lawful.

Two tests? Tests for what? The tribunal was looking at a specific policy within the wider TIW policy. It wasn't lawful. Anything else is your desperate spin.

You simply seek to muddy the waters re the legality of male access to women's spaces.

 

[CXRAndy]

So if we a see a bloke in a dress can we tell them to sling their hook, if they try to access women's spaces?

 

[monkers]

The judgement says they looked for any legislation that might have found the policy of access to be lawful - workplace regs, Equality Act, and human rights - they found nothing in them that would make access lawful.

Two tests? Tests for what? The tribunal was looking at a specific policy within the wider TIW policy. It wasn't lawful. Anything else is your desperate spin.

You simply seek to muddy the waters re the legality of male access to women's spaces.

Your readings are too simple. The Equality Act contains no positive right for a transgender woman to be in a women's changing room, does not contain a positive duty to oblige a transgender to use a women's changing room, pr explicitly ban either trans people or transgender people from spaces. As I said before, the law (meaning the EqA) is silent. Other human rights law is silent on this. Accordingly the tribunal has used the 1992 Workplace Regulations - later amended - to make their finding.

The arguments on these threads has being going back some years. In some cases what was being correctly argued at that time may have been superseded, so that should be kept in mind.

You've argued with me before when I have drawn the legal distinction between a transgender woman and a trans woman. This is never ''magical thinking' to quote you, and all the time the GRA exists in its current form, the distinction remains.

You should remember that I have always argued this from the legal perspective only. In relation to the three recent cases, Peggie, Kelly and Darlington, none have been brought on the presence of a trans woman (a person with the birth certificate of that of a woman).

In the Peggie case, Dr Beth Upton had not acquired a GRC at the time of the complaint, and therefore was legally male.

In the Kelly case, no transgender or trans person was at the centre of the case - it was a challenge to the policy on a hypothetical.

In Darlington nurses, Rose Henderson was at the time of the complaint a transgender woman who towards the end of the saga was at the stage of commencing hormone treatment, therefore legally male.

My criticism of the wording of the judgment is that the two terms 'transgender woman' and 'trans woman' were conflated as if to give the same legal meaning. This is not me saying that would have the effect of changing the judgment in this case.

It would be helpful if you answered my hypothetical question about choosing one of three doors. This is only to seek a lawful and practical way of accommodating all people according to the legal identity and needs, and not to ask you private information. Shouldn't this be a joint aim of all people - an end to this dispute?

 

[AuroraSaab]

You've argued with me before when I have drawn the legal distinction between a transgender woman and a trans woman.

And there we go ..... back to the 'You're only trans if you have a GRC' pivot.
The supreme court have made it clear that the Equality Act means biological sex. Therefore a GRC does not entitle access.

You could have spent the last 10 years campaigning for your 'third door' option, but you didn't. Women have suggested it as a solution for years but you wouldn't accept third mixed sex spaces. You wanted access to women's spaces and nothing else would do so let's not pretend you're suddenly interested in compromise solutions. I expect you still think men with a GRC have the choice of all 3.

 

[monkers]

And there we go ..... back to the 'You're only trans if you have a GRC' pivot.
The supreme court have made it clear that the Equality Act means biological sex. Therefore a GRC does not entitle access.

You could have spent the last 10 years campaigning for your 'third door' option, but you didn't. Women have suggested it as a solution for years but you wouldn't accept third mixed sex spaces. You wanted access to women's spaces and nothing else would do so let's not pretend you're suddenly interested in compromise solutions. I expect you still think men with a GRC have the choice of all 3.

It isn't a pivot and it doesn't apply in the Darlington nurses case. So we can set that argument aside.

The Supreme Court ruling is not contemporaneous with the complaints of the Darlington nurses - unless you can prove that the policy author can have reasonably foreseen that the Supreme Court would rule on it five years later, and that the policy manager was going to fail to review the policy in a timely manner? Yes, that is how it works.

Not sure that I ever posted to say that I reject third mixed sex spaces. My reaction to that is the possible confusion with so-called ''third sex spaces'' when the law treats these matters as binary. I think my three doors question is as close to an opinion as I have given - but again you are avoiding the question.

And please don't continue to pretend to know what to expect what I am thinking. Every time you attempt it you are invariably wrong.

 

[monkers]

And there we go ..... back to the 'You're only trans if you have a GRC' pivot.
The supreme court have made it clear that the Equality Act means biological sex. Therefore a GRC does not entitle access.

The GRC entitles access under the GRA 2004, but not mentioned in the EqA 2010. However what parliament intended can be seen in the later Same Sex Marriage Act where a trans woman marrying a cis woman results in them both being 'wives'. If the tests are to be ''ordinary language'' as the Supreme Court insists, we must draw the conclusion that those born with a penis are destined to be 'wives'. So no, the Supreme Court ruling did not manage to clarify the law, missing the point of parliamentary intent in the process.

Once you understand that the 'trans' part of 'trans woman' is a modernising of 'transsexual' and not a shortening of 'transgender', the logic becomes clear.

''Transgender'' is a problematic umbrella term. Problematic because it relates to a range of identities and all stages of any transition process, and also problematic because anyone who identifies outside of the gender binary is covered by the term but not protected in law as within the legal gender binary. Therefore it looks odd to those of us who recognise the legacy of the word to be used to mean every identity that is not cisgender. Yes that does look like a salad but it's the neatest way I can manage to construct it.

In law, sex and gender identity are binary terms. Even those people with any DSD condition or those people who will say they are 'non-binary' because they have no sense of their own gender identity, are not fully protected.

Riddle me this. The CTT say that a cisgender woman who does not have a sense of her own gender identity must compete in the open class against men. The implication being that they judge women by how womanly they say they feel they are. The biological interpretation is not found there, yet biology is the root of their claim in justification of the policy.

How about an answer to the simple three door question please Aurora? I'll be satisfied with a useful yes/no answer but grateful for a more complete reply. There's no trap intended, just the possibility of at least reaching some level of agreement.

 

[bobzmyunkle]

The CTT say that a cisgender woman who does not have a sense of her own gender identity must compete in the open class against men.

Really? Open or female. How many people really have a problem with this?

 

[monkers]

Really? Open or female. How many people really have a problem with this?

Yes. There have been cases of cis women who were out as non-binary and withdrawing from the CTT due to the policy (tbh ... I should have looked to see if this has changed before posting).

Through no better reason than laziness on my part I've just asked AI, here is the reply ...

Cycling Time Trials (CTT) regulations do not recognise “non‑binary cis women” as a separate eligibility category. Under the current rules, only people whose sex was assigned female at birth may enter the Female category, and everyone else — including non‑binary riders — must compete in the Open category.

This is not quite clear enough, I'm travelling at the moment, but I'll look more closely later.

 

[bobzmyunkle]

Based on the CTT Transgender Policy, to enter the female class you must meet the following criteria:

Sex assigned at birth was female.
Must not have undergone any part of male puberty.
Serum testosterone levels must be below 2.5 nmol/L (if tested).

Sounds reasonably straightforward.

 

[spen666]

The tribunal found that ...

The policy was commended for pursuing a legitimate aim for inclusion under the EqA, therefore not unlawful in that respect.

The implementation of the policy had the effect of contravening the Workplace Regulation, therefore unlawful in that respect.

The conduct of managers with regard to the complainants was found to be unlawful and led to a finding of indirect discrimination under the EqA, therefore unlawful.

Rose was not a respondent, yet her conduct was an ongoing feature of the case with the outcome that the tribunal found no criticism of her conduct.

Still not pointing to paragraph(s) in the report and instead posting someone's interpretation of the judgement?

Why are you refusing to point to where the tribunal make the findings you claim?
The tribunal may or may not have decided what you claim. If they have then why not simply say which papragraph(s) of the report make this finding?

 

[monkers]

Still not pointing to paragraph(s) in the report and instead posting someone's interpretation of the judgement?

Why are you refusing to point to where the tribunal make the findings you claim?
The tribunal may or may not have decided what you claim. If they have then why not simply say which papragraph(s) of the report make this finding?

It was done. Either you missed it or are playing at being Captain Awkward.