Thank you for this excellent response to the EHRC. I noted your response to the reference to Sch 3 para 27 ': service required by only one sex. If any interpretation of 'sex' includes certificated or legal sex that paragraph has to be otiose and until the Supreme Court decide FWS v the Scottish Ministers there seems little point in issuing statutory guidance. Your call to the EHRC to 'identify an example or conclude that no such service exists or could possibly exist, rendering this provision nugatory' is exactly on the point and one that was well made on behalf of Sex Matters in the SC. I think that the only proper position for the EHRC is to state that the SC will be wrong if it doesn't allow the FWS appeal and it isn't likely to do that: hence my view that issuing statutory guidance now is pointless. It may be too much to hope that a UK government will act to provide unambiguous guidance but it may have to depending on the result of the SC in FWS.
Thank you for taking time to write this. It shows (to me, at least, as a non-lawyer) what a complete mess this whole thing is. Oh what a tangled Web we weave ...
One thing I hadn't considered until recently is chess (not being a chess player any more than I am a lawyer). There was a chess competition for women only which fell foul of something or other, they had to allow men to play in it. Chess is clearly not physical but the skills needed to play at a high level do, apparently, skew strongly towards the male-typical abilities. So, in mixed sex competitions, women hardly ever win. So it seems very unfair to women that we can seldom win and there is nothing to be done about it because it's not physical.
Was this is the UK? My understanding is that single sex chess tournaments would likely be legal under the Equality Act under 'positive action' to address under-representation.
Thank you for this. Do you have any plans to write about the EHRC's submissions in FWS? I found them the most difficult to follow (and reading your examples here I'm feeling less bad about myself for that)
"It is incumbent upon the EHRC to rectify that by making clear in this guidance that the law does not require case-by-case analysis as a part of proportionality analysis."
it is impractical for a front line member of staff to consider on each occasion whether or not to admit a TIM to what should be a female only space.
Thank you for this excellent response to the EHRC. I noted your response to the reference to Sch 3 para 27 ': service required by only one sex. If any interpretation of 'sex' includes certificated or legal sex that paragraph has to be otiose and until the Supreme Court decide FWS v the Scottish Ministers there seems little point in issuing statutory guidance. Your call to the EHRC to 'identify an example or conclude that no such service exists or could possibly exist, rendering this provision nugatory' is exactly on the point and one that was well made on behalf of Sex Matters in the SC. I think that the only proper position for the EHRC is to state that the SC will be wrong if it doesn't allow the FWS appeal and it isn't likely to do that: hence my view that issuing statutory guidance now is pointless. It may be too much to hope that a UK government will act to provide unambiguous guidance but it may have to depending on the result of the SC in FWS.
Excellent work Michael, I hope they take the feedback on board.
Hope you have a fab new year.
Laurie
Thank you for taking time to write this. It shows (to me, at least, as a non-lawyer) what a complete mess this whole thing is. Oh what a tangled Web we weave ...
One thing I hadn't considered until recently is chess (not being a chess player any more than I am a lawyer). There was a chess competition for women only which fell foul of something or other, they had to allow men to play in it. Chess is clearly not physical but the skills needed to play at a high level do, apparently, skew strongly towards the male-typical abilities. So, in mixed sex competitions, women hardly ever win. So it seems very unfair to women that we can seldom win and there is nothing to be done about it because it's not physical.
Was this is the UK? My understanding is that single sex chess tournaments would likely be legal under the Equality Act under 'positive action' to address under-representation.
I'm not sure where it was. Yes, I suspect you might be right about the under representation idea.
Thank you for this. Do you have any plans to write about the EHRC's submissions in FWS? I found them the most difficult to follow (and reading your examples here I'm feeling less bad about myself for that)
Yes, hopefully soon now that the Christmas break is over.
I think this is vital:
"It is incumbent upon the EHRC to rectify that by making clear in this guidance that the law does not require case-by-case analysis as a part of proportionality analysis."
it is impractical for a front line member of staff to consider on each occasion whether or not to admit a TIM to what should be a female only space.
Thank you for an excellent and informative piece.
Have cross posted
https://dustymasterson.substack.com/p/the-rapids
Dusty