Two Key Questions

This article is written about women, but it could also apply to men and male only services.

As many readers will already know, the Equality Act 2010 provides for single sex services, and acknowledges that there will be times when it is reasonable for a service to exclude members of the opposite sex (para 27 Schedule 3) or to exclude on the basis of gender reassignment (para 28 Schedule 3). Evidently, it is not likely to be reasonable when someone is running a greengrocers, but it might well be when they are running a refuge or rape crisis centre and need to retain a recovery space that is female only, for example.

Today, the word “terfs” is trending on Twitter. This seems to have been prompted by a combination of factors, one of which is Margaret Atwood’s retweet of an article deemed unacceptable by the self-appointed terf-finder generals. At the time of writing, Atwood has not yet recanted, but did tweet “Read her piece, she’s not a terf” for which she was met with a barrage of comments insisting that the article did indeed bear the devil’s mark of terfery. 

The “not a terf” comment made me wonder: what IS a terf? Is the existing law a terf? And I think it reduces to these two key questions:

  1. Do you think that women and girls should ever have the right to meet or to access services where there is nobody present who was born male?
  2. If the answer to (1) is no, do you think that there is any stage in a male-born person’s proposed or actual transition where access to women’s spaces should be restricted?

Answering yes to one or both of these questions is in line with the existing law in the UK, which provides that single sex spaces are legal and that exclusion is justified where ‘a proportionate means of achieving a legitimate aim’ – and what is proportionate for someone who has decided in their own mind but not yet taken any physical steps at all towards transition, may not be the same as what is proportionate for someone who has socially and medically transitioned years ago.

Yet watching the terfs hashtag on Twitter, it seems that for the purists, the only available answer to either question is no. If you answer yes to either of them, then welcome to the coven – you may be horrified to learn it, but you too are among the terven. The only distance between us is which services should be restricted and how far along in transition a person should be to access them. 

For those who do, honestly, take the position that the answer to both questions must be no: you are advocating the abolition of single sex or separate sex services altogether, and therefore the abolition of some of the protections available on the basis of sex contained in the Equality Act. Anyone who wishes to advance such an extreme position must be able to formulate a cohesive argument in favour of this drastic legal change. “Shut the fuck up, terf” is not one.

5 thoughts on “Two Key Questions”

  1. Yes. I do believe there are times when woman and men need separate spaces and I hope this will continue to be supported. For those who intend or have begun gender reassignment, but are not fully transitioned, a gender identification card could be created with non-replication technology (holograms etc) which is accepted and recognised by law and in society to allow those to identify with a specific gender to access those spaces to which they identify. This card could be granted at the point when a persons intentions/gender choice are medically validated as solid. Could this be a thing? Would it work/help?
    For those who have suffered trauma and feel the need for singular gender space – give it to them, without question, and transgender individuals should be accepted into whichever camp they identify with within this premise. As a society we need to start accepting those who identify either way regardless of which body they tow around.

    1. Faye

      The problem is there is no definition of what ‘gender reassignment’ actually entails never mind how it can be determined that someone has started it (and ignoring the issue that gender is never assigned in the first place). As I understand it, a male can decide he wants to be called by what might be otherwise considered a female name, and he could well be covered by the EA protected characteristic of gender reassignment’. No more needs to be done. Transition is complete. No treatments, hormones or surgery are required. Would a male like that meet your criteria to be allowed into spaces reserved for women and girls?

      But why should women and girls have to have suffered trauma before being deemed eligible for their own single-sex space, guaranteed to be free of males? The issue is frequently framed as being one of the safety of women and girls but that ignores other aspects such as dignity, privacy and well-being.

      And they are not, in law, single-gender spaces: they are single-sex spaces – and for good reason.

  2. 1. Only in circumstances where anti-discrimination law does not apply. (It is quite proper that in some parts of life people discriminate with no legal limit, this is called having a private life).

    2. Yes in where both requirements are met at the same time: (a) exclusion of this specific trans person (or by this specific criteria, which must be present and practical and not however a person was born) in this specific case is a proportionate means and (b) the provider of the service wants to exclude the person. The most restrictive criteria thinkable in daily life is by visible genitals, in situations where shared nudity is expected and thus they are obvious.

    (2) is the reading of UK law in AEA v EHRC; while this blog did publish a view that the judge was wring, the judgment, and the guidance it vindicated, remain the best available authority.

    (1) can be debated in law, as in whether there might be some rare cases where excluding *any and all* trans women is a proportionate means to a legitimate aim. Honestly, where such cases are imaginable, I’d much rather not apply anti-discrimination law at all.

    Not applying it is how things seem to work in practice – and this includes services quite firmly on the pro-trans side. Edinburgh Rape Crisis, the one GCs criticized for their choice of CEO, is for “all children, all women, and all members of the trans community” – there is no EA exception that would allow this specific set, however you slice the reading of “sex”, because both trans women and trans men are included.

    I would, in fact, carve a bigger exception in anti-discrimination law for personal services. For example I would not force photographers to do same-sex marriages. This exception would serve the needs of the customer, as anyone knowing how photography works would attest.

    On the other hand, *for businesses* (who have employees) I would remove some exceptions, forcing barber shops to serve women and nail shops to serve men; also Andrea Di Giovanni should have been served, as, especially a *unisex* salon should not have been allowed to offer nail services for women only, and if an employee has religious hangups they should have been forced to have another employee available (rescheduling Andrea for that employee’s shift).

    All of this is an interesting balancing exercise. However, this is not what the loudest gendercriticals seem to want. Instead, they seem to want all daily-used spaces segregated by biological sex.

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