GirlGuiding UK appeared yesterday to confirm that the effect of their new trans inclusive policy is to exclude trans boys, who should be “expected… to move on” from the organisation. Whether trans boys would or would not, in practice, wish to remain Guides is beyond the scope of this blog, which is looking solely at the law here.
GirlGuiding UK holds itself out as a single sex organisation – that is, one which invokes the single sex exemptions permitted under the Equality Act 2010 (EqA). Such exemptions are permissible, as long as exclusion of members of the opposite sex is a proportionate means of achieving a legitimate aim.
This is generally simple, until the effect of the protected characteristic of gender reassignment is also taken into account. GGUK, in common with many other organisations, seem to think that as soon as someone proposes gender reassignment (and thereby gains the protected characteristic of gender reassignment) they should be treated as though they have already acquired the protected characteristic of their preferred sex. In common language, that as soon as a male says they are female, they must be treated as a female, and as soon as a female says they are male, they must be treated as a male.
This is not what the law says. The law says that it is impermissible to discriminate against someone due to a protected characteristic (save for when it is necessary, back to our legitimate aims). Once someone has a Gender Recognition Certificate (GRC) they become a member of their acquired sex “for all purposes” and therefore gain the protected characteristic of their new sex. Prior to getting a GRC, their legal sex remains their original sex. None of this, of course, materially affects how someone moves through the world in terms of their expression and presentation, and nor should it.
There are few cases which deal with this, but support can be found in the comments of HHJ Richardson QC in R (Green) v Secretary of State for Justice  EWHC 3491 (Admin) at §66 – 70, and in MB v SSWP (RP)  UKUT 290 (AAC) at §47. Protected characteristic of membership of a sex is restricted to those who share it by birth or by acquisition of a GRC.
Of course, children at Guides will not have a GRC, because they are too young to acquire one. So the legal sex of children entering or leaving Guides will be their birth sex, although they may also have the protected characteristic of gender reassignment.
For a female child who does not have the protected characteristic of gender reassignment, this will be straightforward. She may join the Guides. For a male child who does not have the protected characteristic of gender reassignment, it is equally straightforward. He may not.
The Guides policy is now that a female child who does have the protected characteristic of gender reassignment would be expected to move on, while a male child who also has that protected characteristic must be admitted.
This seems to be a total inversion of the purpose of the EqA exemptions. A male child who does have the protected characteristic would not be discriminated against, legally, if that child is treated no differently to the male child who does not. Whereas a female child who is expected to leave, purely because of having that protected characteristic, is being treated very differently on the basis of gender reassignment to other female children who do not have that protected characteristic.
In the adult equivalent, this would mean that the EqA exemptions mean that women’s services must open to males without a GRC as long as they are proposing gender reassignment, but should exclude females with the protected characteristic.
The protected characteristic includes those who are “perceived” as transitioning – quite rightly, in order to protect those who are not transitioning but are gender non conforming and are victimised because there is a perception that they are reassigning their gender – so if this analysis were right, then a single sex women’s organisation must admit males who propose transition but do not have a GRC, but are permitted to exclude butch presenting females.
This surely cannot be right, on a purposive interpretation.
Back to the Guides, if they were to exclude female children with the protected characteristic of gender reassignment, how could this be justified? To do so, they must identify a legitimate aim, and show that exclusion is proportionate. It is hard to see how that could be done.
I have also seen it suggested online that it is somehow illegal for the Guides to allow male children with the protected characteristic of gender reassignment into their group. It is not. They can have whatever admissions process they like, as long as they can justify any arising discrimination, and it is perfectly legal for them to have a single gender, but mixed sex, organisation. If that is the case then they would need to make it clear that they are not in fact a single sex organisation, as this may affect the decisions of some parents to permit their child to join. Those parents may well have protected characteristics of their own in relation to, for example, religion, or have other more personal reasons for wanting their daughter only in single sex spaces, such as themselves or their daughter having experienced male violence. No doubt the Guides have considered this already.
The Guides, as I publish this, have just confirmed that in fact they would not force out female children with the protected characteristic of gender reassignment, but would allow them to remain with their unit if they wished. This is good, if belated, news – although they need to be aware that in voicing the adults’ expectation that the child would leave, this may still breach the EqA, as a child who felt the pressure of that expectation would still be able to make a case for discrimination. It may also throw up further questions over how – or if – they are applying the exemptions. If Guides is no longer restricted to those of the female sex (with or without the protected characteristic of gender reassignment) and nor is it restricted to those with a feminine gender identity (with or without the protected characteristic of sex) then what is the justification for excluding those of the male sex who do not have a feminine gender identity?
Innate gender identity is not a protected characteristic, save to the extent that it is a deeply held belief. It is permissible for an organisation to restrict its membership to those who share a deeply held belief. Perhaps this is now how GirlGuiding UK restricts membership: to those who share a deeply held belief in an innate gender identity.
If so, this is perfectly legal, but poor news for girls. No philosophy which seeks to ascribe the gender expectations placed culturally upon women to something innate within them – whether that is wandering wombs, head bumps, brain size, or soul – has ever boded well for women.