Gender again. Sorry!

[AuroraSaab]

Racism and transphobia are both forms of bigotry; you might think one form of bigotry is more less equal than another? However if you think they are unequal, that in itself is an indicator of bigotry.

Wanting a female carer to provide intimate washing to your elderly mother with dementia in a care home, rather than a man who says he's a woman, is neither bigotry nor transphobia. You have to call it such because it's literally the only argument you have in that instance. No decent person would deny anybody, male or female, same sex care in those circumstances.

 

[monkers]

Nobody on here has ever said there are blanket bans of men or trans people or any other characteristic. The Equality Act allows the exclusion of all sorts of people in limited circumstances. It allows all the people who aren't in that cohort to be excluded, it doesn't have to be decided on a case by case basis.

It's legal, and perfectly reasonable, that a gay men's choir doesn't admit women or straight people. It's legal and perfectly reasonable that a society for black students doesn't admit people who are white or not students. It's legal and perfectly reasonable to ask for same sex intimate care.

The fact that you tie yourself in knots trying to prove these very common exclusions aren't legal is desperate stuff.

It's desperate that you don't know that men's gay choirs and student groups are not bound by the EqA because they are not service providers to those carrying out their activities, but become service providers to an audience if performing.

Gay men's choruses must include other people in their audiences. I've been to performances of the Brighton Gay Men's Chorus. Why do even the basics escape you?

 

[monkers]

Wanting a female carer to provide intimate washing to your elderly mother with dementia in a care home, rather than a man who says he's a woman, is neither bigotry nor transphobia. You have to call it such because it's literally the only argument you have in that instance. No decent person would deny anybody, male or female, same sex care in those circumstances.

I asked you 'what does the law say'. That was my comment - this other stuff is all invention from a muddled brain. I don't mind if you don't answer the question, but if you choose to answer my post, you could at least attempt the question, or say that you don't know.

 

[monkers]

It says service providers can apply the exemptions of the Equality Act in order to ensure same sex care. Some might choose not to, but they don't have to choose not to, nor are they compelled to accept male carers for a post that only involves caring for women for example.

My apology Aurora. I had managed to miss this. Please ignore previous post.

In relation to trans and non-binary employees ... please note the last line of the following, ''the patient has no right to be told that the person treating them is trans or non-binary''.

 

[AuroraSaab]

The law says people with all sorts of characteristics can be excluded by service providers, organisations etc. in certain limited circumstances. They do it every day of the week.

You've spent this whole thread saying they can't.

It's desperate that you don't know that men's gay choirs and student groups are not bound by the EqA because they are not service providers to those carrying out their activities, but become service providers to an audience if performing.

Gay men's choruses must include other people in their audiences. I've been to performances of the Brighton Gay Men's Chorus. Why do even the basics escape you?

It's service providers, institutions, organisations, clubs.... all can apply the EA exemptions if they wish.

Astounding that you don't understand the difference between, say, African students having an African drumming group just for Africans and that same band doing a musical performance in a venue open to everyone. Excluding non Africans from the group itself is a 'proportionate means of achieving a legitimate aim' under the Equality Act. Excluding everyone but Africans from a public performance (in most circumstances) wouldn't be. Ditto gay men's choir, lesbian only book groups, under 15's only youth club, oap only lunches, Muslim only prayer groups ...... perfectly legal exemptions used every day in the UK.

Can you direct me to the court cases that have set this legal precedent that apparently overturned these very common uses of the Equality Act exemptions?

 

[monkers]

The law says people with all sorts of characteristics can be excluded by service providers, organisations etc. in certain limited circumstances. They do it every day of the week.

You've spent this whole thread saying they can't.



It's service providers, institutions, organisations, clubs.... all can apply the EA exemptions if they wish.

Astounding that you don't understand the difference between, say, African students having an African drumming group just for Africans and that same band doing a musical performance in a venue open to everyone. Excluding non Africans from the group itself is a 'proportionate means of achieving a legitimate aim' under the Equality Act. Excluding everyone but Africans from a public performance (in most circumstances) wouldn't be. Ditto gay men's choir, lesbian only book groups, under 15's only youth club, oap only lunches, Muslim only prayer groups ...... perfectly legal exemptions used every day in the UK.

Can you direct me to the court cases that have set this legal precedent that apparently overturned these very common uses of the Equality Act exemptions?

These are not examples of exemptions. These are examples of where the EqA does not apply. In all of your examples, they become service providers at the point they have an audience to consider, and then the EqA applies. Peforming groups can cast as they wish.

As I explained earlier, the earlier example of loos and changing rooms comes from a 2014 so-called 'landmark' ruling which doesn't technically qualify as a legal precedent, but nonetheless has influence as the opinion of a sitting judge.

The legal precedent comes from Lord Justice Holroyde who ruled in a landmark contested case two years ago that the placement of trans women prisoners in women's prisons is lawful.

Here it is again ...

1. The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women's prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis.

https://www.bailii.org/ew/cases/EWHC/Admin/2021/1746.html

 

[AuroraSaab]

In relation to trans and non-binary employees ... please note the last line of the following, ''the patient has no right to be told that the person treating them is trans or non-binary''.

You've deliberately omitted to mention this is a report from the NHS federation suggesting how members can support transgender and nonbinary staff. It's neither nor NHS policy nor UK law. And it's caused a huge furore understandably.

"NHS Confederation chief executive Matthew Taylor said: ‘This is a guide for our members on how they can be effective and active allies to their trans and nonbinary staff. It does not constitute formal policy for the NHS".

Stop presenting stuff that is opinion, lobbying material, and activist written demands, as though it is either the law or some kind of authoritative position to be followed.

https://www.google.com/amp/s/www.da...-right-know-medics-transgender-NHS-warns.html

What kind of health service would deny people same sex care when the need is appropriate ffs? And what kind of person demands someone of the opposite sex should be able to insist on giving that care against the wishes of the patient?

 

[monkers]

You've deliberately omitted to mention this is a report from the NHS federation suggesting how members can support transgender and nonbinary staff. It's neither nor NHS policy nor UK law. And it's caused a huge furore understandably.

"NHS Confederation chief executive Matthew Taylor said: ‘This is a guide for our members on how they can be effective and active allies to their trans and nonbinary staff. It does not constitute formal policy for the NHS".

Stop presenting stuff that is opinion, lobbying material, and activist written demands, as though it is either the law or some kind of authoritative position to be followed.

https://www.google.com/amp/s/www.da...-right-know-medics-transgender-NHS-warns.html

What kind of health service would deny people same sex care when the need is appropriate ffs? And what kind of person demands someone of the opposite sex should be able to insist on giving that care against the wishes of the patient?

And now you'll understand that when the EHRC handed its recent guidance, it was non-statutory, and could not hope to out-gun legal precedent.

Yes I'm guilty of laying a little trap for you that you walked straight into. How else can we hope to gain your attention?

Now we can return to what the law says. You must also remember that the NHS and other care service providers have legal duties and obligations to their staff under the EqA. In the case of trans workers this relates to privacy and dignity at work. I never said this would be easy.

 

[Bromptonaut]

The key words are 'proportionate means of achieving a legitimate aim'.

If an outfit can show that their exclusion of, using your own example, non African drummers in an African Drumming Band meets that definition they'll survive my challenge for being excluded as a non African.

The guidance @monkers has posted gives a professional take, as in I suspect it was signed off by lawyers, about the subject of genuine occupational requirements and trans/non binary people. If somebody is sufficiently engaged by the point and has played a guessing game about what their female named/female presenting has in her pants and, as it were, correctly drawn the long straw then presumably they can cry foul and issue a legal challenge.

So far as we know after 5,500 posts that's not happened yet so the best we can go on is what the lawyers think.

That's what the stuff monkers attached is.

 

[monkers]

The key words are 'proportionate means of achieving a legitimate aim'.

If an outfit can show that their exclusion of, using your own example, non African drummers in an African Drumming Band meets that definition they'll survive my challenge for being excluded as a non African.

The guidance @monkers has posted gives a professional take, as in I suspect it was signed off by lawyers, about the subject of genuine occupational requirements and trans/non binary people. If somebody is sufficiently engaged by the point and has played a guessing game about what their female named/female presenting has in her pants and, as it were, correctly drawn the long straw then presumably they can cry foul and issue a legal challenge.

So far as we know after 5,500 posts that's not happened yet so the best we can go on is what the lawyers think.

That's what the stuff monkers attached is.

Thank you Bromptonaut.

Although I set a trap, I gave a broad hint with it that I was doing so. Much of that piece is guidance, whereas the last line that I tried to bring to Aurora's eye is stating law. The patient has no right to know if their carer is trans or non-binary.

 

[monkers]

Still can't stop laughing at this ...

Stop presenting stuff that is opinion, lobbying material, and activist written demands, as though it is either the law or some kind of authoritative position to be followed.

The very idea that the NHS Confederation is lobbying material or activist demands !!!

 

[icowden]

The very idea that the NHS Confederation is lobbying material or activist demands

I think the point is that the NHS Confederation is not supplying current NHS policy. It is supplying it's own opinion rather than anything approved by government.

 

[AuroraSaab]

The legal precedent comes from Lord Justice Holroyde who ruled in a landmark contested case two years ago that the placement of trans women prisoners in women's prisons is lawful.

Lawful to place them there if the government choose not to enact the exemptions of the Equality Act. If you think this is a legal precedent that gives male bodies access to all women's single sex spaces and services you better ring Stonewall. They seem unaware.

 

[monkers]

I think the point is that the NHS Confederation is not supplying current NHS policy. It is supplying it's own opinion rather than anything approved by government.

Thank goodness for that.

 

[monkers]

Lawful to place them there if the government choose not to enact the exemptions of the Equality Act. If you think this is a legal precedent that gives male bodies access to all women's single sex spaces and services you better ring Stonewall. They seem unaware.

I'll just repeat this each time ..

1. The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women's prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis.

The government do not 'enact' exemptions under the Equality Act. The government's job is to implement the will of parliament which passed in this case the Equality Act 2010.

As I keep telling you, the court interpret law in the spirit of what parliament intended.

In this case the claimant asked for a blanket ban on trans women in the female prison estate. The government were the defendant. Lord Justice Holroyde ruled that the government were correct not to implement a blanket ban as policy as this would be impermissible for them to do so under the Act.

You really are hard work. This has been explained time and again.

This was a test case, Lord Justice Holroyde has ruled on it after listening to legal argument from both sides. That is called the doctrine of stare decisis.

Stare decisis, meaning in Latin “to stand by things decided,” is a legal principle that directs courts to adhere to previous judgments (or judgments of higher tribunals) while resolving a case with allegedly comparable facts.

​

Therefore alleged comparable facts are instances that balance the rights of trangender people with others, and Lord Justice Holroyde has decided that in such cases to ignore the rights of trans people is impermissible.