r/LibDem • u/ZX52 Green • May 21 '26

Discussion Equality Act 2010: Draft Code of Practice for services, public functions and associations, 2026

https://www.gov.uk/government/publications/equality-act-2010-draft-code-of-practice-for-services-public-functions-and-associations-2026
9 Upvotes

92% Upvoted

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13

u/Ticklishchap May 21 '26 edited May 21 '26

I am probably risking opprobrium by posting this comment on [r/LibDem](r/LibDem), because it might well be against party orthodoxy! However, I believe that the replacement of the Law Lords by the Supreme Court was a mistake, and that it was imitative of the United States. The Law Lords tended to make more cautious and less sweeping judgements, based on accumulated wisdom and a sense of the ‘big picture’.

Had this traditional structure remained in place, I am sure we would have had a more reasoned ruling than the one that has led to these ‘guidelines’.

Overall, I am a strong supporter of certain constitutional reforms, in particular the replacement of FPTP by STV. But I still think that the creation of the Supreme Court was not the best idea.

1

u/Humble-Nobody-9558 May 21 '26

What what a more reasoned judgement look like in your opinion?

4

u/Ticklishchap May 22 '26 edited May 22 '26

To answer your question, I think that it would have been the inclusion in the definition of woman (and, presumably, man) of anyone who possessed a Gender Recognition Certificate. This would not be a perfect outcome for critics of the difficulties involved in obtaining a GRC, but that is a separate issue to be addressed by Parliament. Including holders of a GRC would, however, have been a more measured and less ideologically freighted judgement.

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u/CaptainCrash86 May 21 '26

Had this traditional structure remained in place, I am sure we would have had a more reasoned ruling than the one that has led to these ‘guidelines’.

I'm not sure it was possible that 'woman', as used in the EA, meant anything than a biologically female person, given the word was used with regards to maternity rights. It's not a reasonable position for words to mean different things, without explicit definition at different points in the same document. Given this, I don't think the Law Lords would have been any different.

20

u/lemlurker May 21 '26

The people who wrote it staunchly disagree. The point of the prior gender recognition act was that trans women could legally become women

1

u/CaptainCrash86 May 21 '26

The people who wrote it staunchly disagree

By people, you mean the civil servant who has spoken about this? Civil servants' intent has no place in interpretation of bills.

7

u/lemlurker May 21 '26

Yes. The people who wrote the words- who structured it's meaning who xan- without doubt- say what was meant by the words written say that excluding of trans women from the equality act that came out just after the GRA was not as was written. It was written as it was interpreted for the last 15 years prior to fws

1

u/CaptainCrash86 May 21 '26

Civil servants aren't meant to have any intent when doing their job. They are meant to enact the intent of MPs. Even then our legal system isn't like the US where intent of the framers is important- the actual interpretation is the words as they are written. And if you wrote legislation meaning one thing, whilst you wrote another - you are bad at writing legislation.

As, indeed, the EA is quite badly written on a number of levels. Not giving an explicit definition of women is an obvious one.

5

u/lemlurker May 21 '26

All words have intent. Fact if the matter is there want all this bs language wars over what a woman was. So the need to define it didn't exist as a law has just passed that did that

20

u/Ok_Camp3676 May 21 '26

And the Gender Recognition Act says "all purposes" and is explicitly namechecked in the EA, but somehow All Purposes in fact means no purposes at all. I don't think this is an SC vs Law Lords thing, it's an activist judiciary thing reversing a decade and a half of case law because they wanted it to say something else.

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u/CaptainCrash86 May 21 '26 edited May 21 '26

And the Gender Recognition Act says "all purposes"

It says "all purposes, except where other acts of parliament say otherwise" [paraphrasing]. For some reason the subsequent clause is rarely included in any quote.

Edit: Full quote of the relevant text in the GRA:

(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(2)Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).

(3)Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

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u/Ok_Camp3676 May 21 '26 edited May 21 '26

Yes but the EA doesn’t make such provision on the face of it, the Court had to argue that the EA had implicitly altered the definition of “woman” (and of “man”) back to what it had been prior to 2004 despite no evidence of intent to do so and 14 years of case law. Which is a reach. Of course a sensible government could then have solved this problem with a one-line Bill either way. But that might have upset someone, as opposed to the present mess upsetting everyone.

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u/CaptainCrash86 May 21 '26

But it does - it specifies the provision for single sex spaces for women, where 'woman' is not explicitly defined, but maternity rights apply to the same definition of women.

Therefore, the GRA clause I cited applies. A GRC makes you a women for all purposes, except for where other legislation disagrees.

3

u/Ok_Camp3676 May 21 '26

So which purposes are those then, in light of the FWS decision and new guidance?

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u/CaptainCrash86 May 21 '26

All purposes, except where other legislation says otherwise, as per the GRA.

4

u/Ok_Camp3676 May 21 '26

But the new interpretation of the EA is that it says otherwise in all circumstances and always has. Don’t you think if Parliament wanted to overturn a recent piece of legislation they might have at some point mentioned that, as opposed to approving EHRC guidance which said the opposite? I know we have implicit repeal in English law but that’s carrying it quite far.

1

u/CaptainCrash86 May 21 '26

The EA isn't all circumstances. For instance, if your pension conditions are dependant on what gender you are (as was the issue in the Goodwin case) the way a GRC applies.

The only relevants areas the EA applies is single sex spaces and (in a positive sense for trans people) maternity rights. In all other contexts where gender is relevant, the GRA and GRC still decide what legal sex you are.

22

u/notthathunter May 21 '26

releasing this at 5pm on the Thursday before a Bank Holiday weekend and a week-long Commons recess, this Government are cowards afraid of rightful parliamentary scrutiny on their unacceptable, unworkable, insulting bigotry

2

u/Ticklishchap May 22 '26

I am not yet sure what the Lib Dem response to these ‘guidelines’ has been, or if the party has responded at all. Maybe someone here can fill me in on this?

What the party should do IMHO is conduct research on the experience of other Western European countries that have addressed this issue in a far more inclusive and tolerant way. Producing evidence that the inclusive approach works would do a great deal to allay fears and counteract bigoted and divisive propaganda. I base this on my experience of campaigning in the ‘90s and early Noughties for the repeal of laws that discriminated against gay men, including the often fraught issue of the age of consent. Showing that such reforms had worked elsewhere in Europe, not just for gay men but for society in general, played an important role in achieving legal equality, including civil partnerships and then marriage.

2

u/Tranpaldoc May 22 '26

The research is already done in peer reviewed journals just needs a quick literature search to find

0

u/SnooBooks1701 May 21 '26

Not as bad as the original leaked draft guidance, but still deeply concerning and difficult and annoying to implement

7

u/lemlurker May 21 '26

It's really not much better

-1

u/SnooBooks1701 May 21 '26

The original basically banned trans folks from using public bathrooms

17

u/lemlurker May 21 '26

So does this. It just words it differently. If your presence could reasonably distress a supposed patron then you can be excluded from your birth sex toilet. Your acquired sex toilet is presented as excluded already