of the opposite (biological) sex with a GRC, whose biological sex is likely to be readily identifiable, whilst excluding others without a GRC, whose circumstances may be materially indistinguishable.
(iv) Single characteristic associations and charities
229. Similarly, Schedule 16 paragraph 1 EA 2010 allows for an association to restrict membership to persons who share a protected characteristic (which would otherwise be unlawful discrimination in contravention of section 101(1)(b)). However, if sex means certificated sex, this exception from the sex discrimination provisions for single characteristic associations would not permit such associations with 25 members or more (see section 107(2) of the EA 2010 discussed above) to be limited to biological women. This is because, as we have said, a certificated sex definition of the protected characteristic of sex would include trans women with a GRC.
230. Nor would single-sex charities be able to use the exception in section 193, which allows them to restrict the provision of benefits to persons who share a protected characteristic in pursuance of a charitable instrument. So far as material, section 193 provides:
“(1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if— (a) the person acts in pursuance of a charitable instrument, and (b) the provision of the benefits is within subsection (2).
(2) The provision of benefits is within this subsection if it is— (a) a proportionate means of achieving a legitimate aim, or (b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.”
231. Schedule 16 and section 193(1) plainly intend that single-sex associations and charities should be permitted to exist along with other single-characteristic associations. A certificated sex meaning applied to these exceptions would make it impossible for any women’s association or charity – including, for example, a mutual support association for women who are victims of male sexual violence, a lesbian social association, a breastfeeding support charity – to be set up or to pursue a dedicated purpose which is directed at the needs of biological females. To require such associations or charities to reconceive of their objects as targeting a group that does not correspond with their original aims, and to allow trans people with a GRC (of the opposite biological sex) to join would significantly undermine the right to associate on the basis of biological sex (or sexual orientation based on biological sex as we have discussed above).
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