The Women and Equalities Committee of the UK Parliament heard evidence from a representative of Womens Aid in England & Wales on 22/5/19, during which she referenced a Scottish Womens Aid guidance from 2015.
I think the reference to the Scottish Womens Aid guidance is this one here. It contains details about trans inclusion, the Equality Act’s general occupational requirement and a policy definition of Gender Based Violence that differs from the CEDAW defintion.
The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.UN CEDAW
This new defintion now includes other victims of violence and not just women and girls.
Gender-based violence incorporates all violence against women. However it also includes violence against lesbian, gay, bisexual and transgender (LGBT) people in the form of homophobic and transphobic hate crime, domestic abuse, homophobia/transphobia/harassment in the workplace and homophobic/transphobic family abuse. It is any kind of violence used to maintain gender orders and LGBT people experience this on the basis of their sexual orientation or gender identity and expression which steps outside of what is perceived to be the gender norm.Scottish Womens Aid (2015)
This guidance was written jointly by LGBT Youth Scotland so it isn’t surprising this definition of Gender Based Violence is also the same one that LGBT Youth Scotland use in their Voices Unheard programme. Of which they receive £120k government funding from the Equally Safe VAWG fund.
‘to build capacity within violence against women services to ensure that they are LGBT inclusive”Equally Safe, Scottish Government
I would have thought an essential requirement for receiving Equally Safe funding would be to agree and promote the Scottish Government’s definition of Gender Based Violence (see below). It’s extraordinary that VAW funding is being given to other groups of people that don’t include either women or girls!
The Scottish Womens Aid guidance also includes a link to the controversial Stronger Together guidance that Rape Crisis Scotland has recently removed from their website. The guidance had advised that if other service users were uncomfortable sharing a service with a transwoman then
“this is rightly seen as no reason for the trans woman to be moved”
and informed staff that
“we would work to educate other service users – much in the same way that we would if we received comments regarding other service user’s ethnicity, religious affiliation or sexual orientation“.
There is also a section in the guidance about the General Occupational Requirement from the Equality Act 2010 that gives organisations the lawful exemption to advertise certain posts requiring the applicants to be female. What the guidance doesn’t mention is the further lawful exemption that requires the applicant NOT to be a person with the protected characteristic Gender Reassignment.
What this effectively means is that when organisations only apply the exemption that the applicants must be female this enables transwomen with a GRC to fit the criteria as they are legally ‘female’.
If a women’s refuge wanted to restrict its job applicants to only biological women then they would then need to also apply the second exemption, ie that the applicant is female AND does not have the protected characteristic Gender Reassignment.
The Scottish Womens Aid guidance makes no reference to this second exemption. It also states that it wouldn’t be necessary to ask for a birth certificate expresssing that other documentation like passport or driving licence would be sufficient for disclosure purposes.
If you are recruiting for a female occupational requirement post, it is lawful to ask all applicants to show they are legally female. It is not necessary for trans women to show a birth certificate, but it is expected that, for all staff and volunteers, the documentation produced as part of the disclosure process (e.g. passport, driving licence or equivalent) shows that they are living as women.Scottish Womens Aid (2015)
This reveals a major flaw in the disclosure practices of Scottish Womens Aid as documentation like passports and driving licenses are issued to trans people on a Self Declaration basis, with no requirement for a Gender Recognition Certificate. They could effectively be employing people – who are applying for a female only post – yet are both legally and biologically male. This is the advice being given to by the national organisation to staff at the local services.
The people who wrote this Guidance knew full well that it was only once a transwomen had received a Gender Recognition Certificate that they would be classed as legally female. However, they still went onto to advise that in a situation where a trans person did not have a GRC then consideration should be given to the value being placed on birth sex. Remember this is a post that has been specifically advertised for female only applicants, and this guidance is going well beyond what could be considered at all reasonable to not discount a person who doesn’t even fit that most requirement.
I can’t see how a person who is both legally and biologically male could possibly have a legal case against an organisation that has specified the occupational requirement of the single sex exemption in the job description.
Scottish Womens Aid should be urgently reviewing this guidance and start advising their members with a more accurate depiction of the single sex exemptions within the Equality Act 2010.
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