To what extent can these different claimed rights be resolved, and how?
Conflicting rights is commonplace in equality legislation.
It is necessary to find a balance for all concerned parties when considering new policies, or individuals needs. Equality Impact Assessment and Public Sector Equality Duty, require organisations to critically review their policies, assessing any impact it may have on the different protected characteristic of the EA2010. We are seeing far too often, women’s rights under the protected characteristic of sex, is being left out of any consideration. This more than likely why people say there is no conflict, as organisations and certain people are not including women’s sex based rights as worthy of consideration for impact.
The areas of conflict within the protected characteristics EA2010 I think come into play are Sex and Gender Reassignment, possibly religion and belief can be included here too.
EA2010 sets out what is illegal and legal discriminatory actions.
It recognises sex as biological, women are females, and are protected on this basis from discrimination, with males falling under the opposite sex, and the comparison category for discrimination. Single sex services is a form of legal discrimination where females are entitled to have female only spaces for privacy, dignity and safety reasons.
The EA2010 also protects people on the basis of Gender Reassignment from discrimination based on whether is someone proposing, or has undergone reassigning their gender. This however doesn’t change someone’s sex.
The conflict occurs when someone who is male, wants to use a space set out for females.
Big organisations such as Stonewall present what some others in this field see as misinformation on what the law actually says; but it is more than likely require test cases in the courts will be needed to settle these significant contestations.
The EHRC have just updated their guidance here :
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People (including MPs) frequently reiterate that there is no conflict between transrights and women’s rights. But there evidently is a conflict between a transwoman and a non transwoman if the transwoman wants to feel welcome, validated and not “othered” accessing a single sex refuge / toilet / changing room etc but the other woman has reasons to fear the male body, eg, she has experience of sexual abuse and/or PTSD. (NB 1/3 women have experience of sexual abuse). Neither individual should be overlooked; both deserve support and this conflict of need can only be resolved by undertaking an equality impact assessment, or similar, which considers all needs, including those which conflict, and which puts in place mitigations or makes proportionate and justifiable decisions.
I am always careful to specify that we need to consider women survivors of VAWG as well as transwomen; not instead of. Generally the response to this is that I am arguing in bad faith or using a dog whistle. I think people who make such claims are not open to considering the needs of all women who are not trans. However, I would hope that most people would agree the need for robust equality impact assessments which take account of conflicting needs along the lines of the Equality Act 2010 and the accompanying EHRC guidance.
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In the USA: Transgender people over four times more likely than cisgender people to be victims of violent crime
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Labour Women Voices 