This article will contest both these claims. It is important to consider the claim about harm in addition to the claim about rights because gender critical feminists place particular emphasis on potential harms, and this has served to generate considerable anxiety and fear around the presence of trans women in women‐only spaces. Moreover, in arguing reform will produce harms, they suggest a causal relationship between rights diminution and harm. Yet, harm does not necessarily follow from a diminution in rights and in the present context, as I will argue, it does not, therefore we need to disaggregate these two claims. My arguments are: first, reform of the GRA will not undermine non‐trans women's rights to exclude trans women from women‐only spaces, but second, even if reform did undermine these rights, this will not lead to a significant increase in harms to non‐trans women. Before proceeding to consider these two matters, however, it is first necessary to explain how the GRA currently operates and how this is likely to change if the proposed reforms are introduced, and to detail rights currently enjoyed by non‐trans women's organisations under the EA which are allegedly under threat. 5

Since the government announced its intention to reform the Gender Recognition Act 2004 (GRA) to allow for gender self‐declaration, a step already adopted in numerous jurisdictions across Europe and Central and South America, 2 a debate has taken place in the UK concerning the wisdom of proposed reform. This debate has been fought out in the media, including social media, where it has been framed, falsely, in terms of a conflict between non‐trans and trans women's rights. 3 This media framing has been consolidated by the views and advocacy of one group of feminists who self‐describe as ‘gender critical’, and whose prominence coincides with proposed GRA reform. This group of feminists make two major claims: first, reform will undermine non‐trans women's rights under the Equality Act 2010 (EA) to exclude trans women from women‐only spaces, such as bathrooms, changing facilities, communal accommodation, rape crisis centres, and domestic violence refuges, and second, diminution of these rights will result in harms to non‐trans women, including the harms of violence and sexual violence. 4

The proposed reforms aim to dispense with existing medico‐legal requirements, with the possible exception that applicants will continue to have to be at least 18 years old. This will make legal gender recognition cheaper, more accessible, less cumbersome and bureaucratic, less invasive and, crucially, will de‐pathologise and de‐stigmatise the process. The government is also considering creating a mechanism for recognition of non‐binary gender identities. All of these reforms will obviously benefit trans and non‐binary people.

The GRA was enacted in 2004 and has had legal effect since 4 April 2005. It was a response to the European Court of Human Rights’ finding in Goodwin and I v UK 6 that the British government could no longer rely on its ‘margin of appreciation’ in violating Articles 8 and 12 of the Convention. The GRA introduced a medico‐legal process for the recognition of the gender identities of trans people. Under the Act, the Gender Recognition Panel (GRP), a body comprised primarily of medical experts, can recommend conferral of a Gender Recognition Certificate (GRC) provided an applicant is 18 or over, has been diagnosed with ‘gender dysphoria,’ has lived in the ‘acquired gender’ for a period of at least two years prior to the date of application and has signed an affidavit stating an intention to live in the ‘new’ gender ‘until death’. 7 The GRA does not require an applicant to have undertaken any surgeries or to have commenced hormone administration, though if surgeries have been undertaken, details must be provided to the GRP. 8 According to the government's most recent figures, only approximately 4,500 trans people have received a GRC. 9

The EA also creates a number of sex‐based exceptions permitting discrimination against trans women in particular circumstances. These relate to women‐only services, 14 occupational requirements, 15 women‐only clubs, 16 competitive sports, 17 all‐women shortlists, 18 and communal accommodation. 19 In each case, trans women, irrespective of whether they hold a GRC, can lawfully be excluded from women‐only spaces in circumstances where this can be shown to be ‘a proportionate means of achieving a legitimate aim.’ 20 The government has made clear it does not intend to repeal any of these provisions.

The EA protects against discrimination on a number of grounds. For our purposes, two prove important: ‘sex’ 10 and ‘gender reassignment.’ 11 By virtue of the latter, all trans people who fall within the category are protected against discrimination by private companies and public organisations in the areas of provision of goods and services and employment. The category is drawn widely and covers persons ‘proposing to undergo … undergoing or [having] undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.’ 12 While this language might be thought to suggest a need for surgical intervention and/or hormone administration, neither are required. 13

In summary, harm arguments asserted by gender critical feminists are, when examined, extremely problematic. They suffer from the following: first, an assumption of equivalence of non‐trans men and trans women and therefore of their respective offending patterns, second, a general lack of evidence of harms to non‐trans women outside prison environments, despite large numbers of trans women using women‐only bathrooms and other gender segregated spaces for decades, and despite the fact that many of these spaces are already occupied, and in some instances governed, on the basis of gender self‐declaration, and third, failure to recognise that exclusion of a whole class of women from women‐only spaces is not justified in public policy terms by a handful of cases, and that in the specific context of prison, such cases can be managed by proper enforcement of existing prison policy. Further, in making harm‐based arguments, gender critical feminists fail to consider well‐documented harms trans women suffer in society at large 48 and specifically in men's prisons. 49

Of course, it might be said that decisions not to rely on para 4.7 in the case of non‐trans women are a consequence of the relatively low level of risk they pose when compared with trans women. This rather begs the question, given evidence of non‐trans women prisoners with a history of violence including offences committed while in prison. In other words, if prison policy decision‐making is guided not by transphobia, but by actual risks of harm, how is this possible? Is it the case non‐trans women's uncontentious status as women precludes application of para 4.7, whereas trans women's daily struggle for this very status renders them vulnerable to it? That is, while we focus on the awful deeds of Karen White, and while we foreground her transness, have we failed to recognise prison discrimination against trans women? In any event, the solution to the type of problem trans women like Karen White pose is not a blanket ban against trans women, but proper and robust risk assessment of all women prisoners.

Indeed, it would seem trans women sex offenders requesting transfer to a women's prison are routinely turned down in terms of prison practice. Frances Crook, chief executive of the Howard League for Penal Reform, has stated that during a recent visit to one women's prison, the prison governor informed her that five trans women sex offenders had requested transfer. All were turned down. 45 Indeed, it is curious that no non‐trans women are currently housed in a male prison given the incidence of violent offending in women's prisons. According to Ministry of Justice statistics for 2015, there were 195 incidents of assault per 1000 prisoners in women's prisons. 46 In relation to serious assaults, the figure is 14 per 1000 (52). 47

Before proceeding to the following section of this article, where I will contest the view reform will undermine non‐trans women's rights, one further issue concerning harm needs to be addressed, lest I be accused of avoiding the most startling evidence of harm. I refer here to the issue of prison allocation in the context of trans women prisoners. There have been a number of cases, most notably the well‐publicised case of Karen White, 40 where trans women sex offenders have committed sexual assaults against non‐trans women after being transferred to a women's prison. The first thing to note here is there are currently only 25 trans prisoners located in women's prisons (0.625 per cent) and this figure includes trans men. 41 More importantly, para 4.7 of the Care and Management of Transgender Offender s prison policy already provides for any woman prisoner (trans or non‐trans) whose security profile renders her dangerous to other women inmates to be allocated/transferred to a male prison. 42 In other words, to the extent a threat is posed, provision already exists to deal with it. 43 Karen White should have been placed in a segregated unit within a women's prison or placed in a men's prison (to which she has since been re‐transferred) 44 because her offending history posed too great a risk to other women prisoners. Prison authorities have acknowledged as much.

It is also somewhat far‐fetched to imagine non‐trans men with bad motives would employ this tactic when access to women's bodies in our society is ubiquitous. The Stonewall report referred to above found that rape crisis centres/domestic violence refuges already have adequate procedures to safeguard against this possibility through proper risk assessment. 37 As one interviewee explained: ‘[w]e've worked on the basis of self‐declaration for some time now and in our experience it's never been something that's been exploited or misused.’ 38 The notion that non‐trans men might pretend to be trans in order to access women‐only spaces is implausible for a further reason: namely, legislation introducing a gender self‐declaration model is likely to include criminal sanctions for individuals who make a false declaration. Thus the Irish GRA 2015 makes it an offence to ‘knowingly or recklessly provide information to the Minister that is false or misleading in a material respect’ and stipulates a class C fine and/or a custodial sentence of 6 months in such circumstances. 39

In addition to their focus on trans women, gender critical feminists also emphasise the danger non‐trans men might exploit reform of the GRA in order to access women‐only spaces for the purposes of harming non‐trans women. Putting to one side the fact that a distinction between non‐trans men and trans women often blurs in gender critical discourse, therefore calling into question the good faith of use of this distinction, evidence for such harms is, once again, absent. This is not to say men do not pose a threat to women. Clearly they do, as criminal statistics demonstrate. However, there is little evidence to suggest that non‐trans men gain access to women‐only spaces by pretending to be trans women. Moreover, framing trans identity as a social privilege which some non‐trans men will seek to abuse casually disregards the high rates of discrimination and violence which trans people, especially trans women of colour, experience. 36

In the UK, such studies are yet to emerge. However, evidence presents itself concerning different locales, and in particular, rape crisis centres and domestic violence refuges. Indeed, for gender critical feminists, these women‐only spaces are the most important to regulate as they are imagined to be places where mixing will produce particular harms. Yet, the evidence suggests the contrary. A recent report commissioned by Stonewall, which interviewed representatives of fifteen of the largest national and regional women's organisations in the UK (including IDAS, LAWA, Oasis, RISE, Women's Aid, and Rape Crisis Scotland) found no evidence of problems associated with providing access to and catering for trans women. 33 The study found that such bodies have been supporting trans women for a long time and that no real problems on the ground have been experienced. As one interviewee explained: ‘[w]e recognise trans women as women, therefore they're included in our women only times and spaces, and that's been our practice for years, like years and years.’ 34 Indeed, several women's organisations already operate on the basis of gender self‐declaration. And perhaps, most significantly, none reported having used the sex‐based exceptions to exclude trans women. 35

While instances of harm do exist, we should recognise how rare they are. Thus, in relation to women‐only bathrooms, there appears to be little evidence trans women, or indeed non‐trans men pretending to be trans women, pose any significant danger. One recent study in the US compared localities in Massachusetts with and without gender identity inclusive public accommodation nondiscrimination ordinances. Crucially, it found ‘the passage of such laws not related to the number or frequency of criminal incidents in these spaces’ 29 and ‘reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms [to be] exceedingly rare.’ 30 This chimes with the findings of institutional actors on the ground such as police departments and human rights bodies: ‘no problems since passage of 2011 [non‐discrimination] law’ (Las Vegas Police Department); ‘no factual basis for sexual assault fears’ (Maine Human Rights Commission); sexual assaults stemming from non‐discrimination law ‘not even remotely’ a problem (Minneapolis Police Department); ‘zero allegations’ of bathroom sexual assault (Oregon Bureau of Labor and Industries). 31 In another study, which focused on seventeen school districts around the US with protections for trans people, and which collectively cover more than 600,000 students, no harassment in bathrooms or locker rooms was found after implementation of non‐discrimination policies. 32

The reality is trans women are especially vulnerable to male violence 27 (gender critical feminism pays little, if any, attention to the dangers posed to trans women through being excluded from women‐only spaces), and the risks trans women as a group pose to non‐trans women are very low and insignificant in public policy terms. It is acknowledged there are a handful of cases where trans women have committed offences in women‐only spaces. However, the notion this justifies exclusion of a whole class of people is absurd in consequentialist terms. As Zanghellini explains:

[w]e know that, statistically, men are much more likely to be sexually predatory towards children. We also know that it is difficult to tell in advance which men will offend (at least if they do not yet have relevant convictions). Finally, we know that some men who come into contact with children in their work will offend against them. Yet we don't exclude all men from working with children, even if using gender as a watershed would prevent those offences. 28

This approach fails to consider obvious and important differences between non‐trans men and trans women, preferring to place emphasis on the apparent relevance of gendered forms of socialisation and/or biological drives. Yet, ‘all sorts of variables combine and interact with the factors of having a certain anatomy and being classified as a certain gender on account of that anatomy, affecting – potentially profoundly – the way in which those factors shape us.’ 25 Gender identity is likely to be a highly significant variable in such an analysis. 26 In the absence of robust evidence trans women pose a particular risk, Stock advocates a ‘play safe’ approach in relation to women's safety. The appeal of such a posture rather depends on whether we think the safety of trans women ought to be considered.

However, irrespective of these observations about the relationship between existing rights, reform and harm, the claim trans women pose some kind of special risk to non‐trans women is empirically without merit. It is based not on credible evidence of harm but on different patterns of offending between men and women and the assumption trans women's offending patterns are likely to mirror those of non‐trans men. As gender critical feminist, Kathleen Stock, puts it: ‘[t]he problem here is male violence’ and there is ‘no evidence that self‐declared trans women deviate from male statistical norms in relevant ways.’ 22 As Aleardo Zanghellini notes, ‘[s]omething true of natal males as a class (their proneness to violence against women) is assumed by Stock to be true of trans women as a (sub)class.’ 23 Crucially, and problematically, ‘[t]he effect of Stock's argument is to treat as evidence of sameness an absence of evidence of difference (in proneness to violence, as between natal males and trans women assigned male at birth).’ 24

Let us begin with trans women. From the outset it should be recognised that the claim reform will produce harm, as will be argued in the following section, is based on the false assumptions that reform will provide a much larger group of trans women access to women‐only spaces, and that sex‐based exceptions, which it is wrongly believed cannot be invoked against GRC‐holders, provide an effective tool for exclusion. The reality is, the ‘hordes’ of trans women who lie at the gates of women‐only spaces are already inside and, importantly, already legally entitled to be there by virtue of the EA. In relation to sex‐based exceptions, they set a high evidential bar and, so far, have never successfully been relied on in a court of law. 21 Accordingly, if trans women do pose significant harm it will be no more significant post‐reform.

In the following section it will be argued that GRA reform will not undermine the EA's sex‐based exceptions. However, even if reform were to result in rights diminution, this would not lead to a significant increase in harms to non‐trans women. Gender critical feminists claim two groups pose a significant risk of harm: trans women and non‐trans men. This section will consider this claim in relation to both groups.

REFORM OF THE GRA AND NON‐TRANS WOMEN'S RIGHTS

As we have seen, the case for harm is evidentially weak, irrespective of whether we focus on trans women or non‐trans bogeymen. In this section of the article, I will consider the separate, though linked, argument reform will undermine the rights of women's organisations to exclude trans women. While absence of significant harm raises questions concerning the existence of provisions permitting exclusion of trans women as a class from women‐only spaces, the aim here is to highlight that reform will not impact significantly on sex‐based rights to exclude provided by the EA. At least three interrelated arguments have been made by gender critical feminists in support of their claim reform will undermine non‐trans women's rights.

First, because reform will expand the pool of trans women capable of acquiring a GRC, some gender critical feminists argue reform will undermine women's sex‐based rights to exclude trans women from women‐only spaces. The argument is based on the claim that sex‐based rights cannot be invoked against trans women who hold a GRC because they are legally female by virtue of the GRA.50

Second, some gender critical feminists argue trans women without a GRC, who bring a discrimination claim under the protected characteristic of ‘gender reassignment’, require a male comparator.51 If correct, this argument would mean women's organisations do not need to rely on the sex‐based exceptions in order to exclude the vast majority of trans women from women‐only spaces. Rather, they can do so with impunity on the basis a non‐trans man would have been treated the same. That is, if the ‘comparator’ for a trans woman without a GRC is a non‐trans man, most trans women would have scant chance of succeeding with a discrimination claim if excluded from women‐only spaces, because identifying the correct comparator is a threshold question.

Some gender critical feminists make arguments one and two. If both were correct, this would produce the perverse consequence that the sex‐based exceptions could never be invoked, at least not against trans women. That is, either the exceptions could not be relied on (GRC‐holders) or there would be no need in practice to ever rely on them (non GRC‐holders). Parliament cannot have intended such absurdity. However, other gender critical feminists making argument two do not make argument one.52 Rather, they accept sex‐based exceptions can be invoked against trans women irrespective of possession of a GRC. According to this view, with which I agree, the second argument, if correct, would entail that reform, because it would increase, perhaps significantly, the number of GRC‐holders, would produce a situation where women's organisations would be less able to rely on judicial use of a male comparator. Rather, exclusion would have to be justified on the basis of the exceptions. Obviously, this would be a more onerous task.

Third, some gender critical feminists argue section 22 of the GRA,53 which protects the privacy of GRC‐holders, undermines the ability of women's organisations to exclude trans women from women‐only spaces.54 Specifically, they argue, section 22 prevents such organisations from finding out if a woman presenting with a female birth certificate was designated female at birth,55 a ‘problem’ they see as being exacerbated by reform which promises to expand the number of GRC‐holders. As they note, ‘[r]eplacement birth certificates are indistinguishable from originals and it is illegal for an official to reveal someone has changed their legal sex class.’56 Accordingly, they argue, section 22 undermines the ability of women's organisations to rely on the sex‐based exceptions without, as they put it, ‘fear of being taken to court for getting it wrong’.57 In other words, they point to the possibility of inadvertently excluding non‐trans women.

In summary, gender critical feminists express concern reform will significantly undermine the ability of women's organisations to rely on the sex‐based exceptions. They do so because they assume the sex‐based exceptions cannot be invoked against GRC‐holders and/or that non‐GRC holders currently require a male comparator in discrimination cases, and/or that GRC holders cannot be effectively excluded from women‐only spaces because amended birth certificates issued under the GRA make no reference to birth designated gender.58 The remainder of this article will explain why these arguments are mistaken.

Argument One: sex‐based exceptions cannot be invoked against trans women GRC‐holders (i) trans women holding a GRC are legally ‘female’ for ‘all purposes’ by virtue of section 9(1) of the GRA;

(ii) EA exceptions pertaining to women‐only spaces are ‘sex’ based;

(iii) therefore these exceptions, which allow service providers to discriminate in circumstances where it is ‘a proportionate means of achieving a legitimate aim’, cannot be invoked against GRC holders, and;

(iv) because reform will expand the number of trans women holding a GRC, the possibility of relying on the exceptions will be significantly reduced, if not extinguished. This argument takes the following form: These premises and conclusions are problematic because they proceed on the basis of a misunderstanding of the proper relationship between the relevant provisions of the GRA and EA. According to the Equality Act's Code of Practice, single or separate‐sex service providers ‘should treat transsexual people according to the gender role in which they present’. The Code makes clear this is subject only to the sex‐based exceptions in circumstances where exclusion is ‘a proportionate means of achieving a legitimate aim’.59 In other words, all trans women covered by the protected characteristic of ‘gender reassignment’ can lawfully access women‐only spaces subject only to the sex‐based exceptions, which can be invoked against GRC and non‐GRC holders alike. While not an authoritative statement,60 the Code, in my view, provides a correct interpretation of the law. However, in July 2018, the Equality and Human Rights Commission issued a statement contradicting its earlier articulation of the law as expressed in the Code.61 The statement appears to agree with argument one, noting that ‘[t]he sex discrimination exceptions in the Equality Act … apply differently to a trans person with a GRC.’62 In my view, this later statement of law, which appears to locate GRC‐holders beyond the reach of the exceptions, is incorrect. Two arguments might be made in favour of argument one, both of which focus on the fact that conferral of a GRC under the GRA involves legally recognising trans women as female for ‘all purposes’.63 First, it might be argued that trans women GRC‐holders, if excluded from a women‐only space, might bring a discrimination claim on the basis of the protected characteristic of ‘sex’ rather than ‘gender reassignment,’ and that in such circumstances, sex‐based exceptions cannot be relied on. Second, it might be argued that the exceptions cannot be invoked against trans women with a GRC in relation to a discrimination claim brought under the protected characteristic of ‘gender reassignment.’ Some gender critical feminists make the second claim. Let us dispense first, however, with the notion that trans women with a GRC might rely on a claim of ‘sex’ discrimination if excluded from women‐only space. The difficulty here lies in the fact that in order to pursue a sex discrimination claim, a woman must rely on a male comparator. Yet, a man would also have been excluded from the relevant space. In order to succeed with a sex‐based claim, a trans woman claimant would require a non‐trans woman comparator, yet this would be precluded because the comparator cannot be a person who shares the same protected characteristic as the complainant. Further, even if a trans woman could use a non‐trans woman comparator, she would not be able to show discrimination because the EA specifically states there must be no material difference between the circumstances relating to the situation of the claimant and comparator respectively, yet non‐trans and trans women are not comparatively situated.64 Turning to the second argument, some gender critical feminists argue that the exceptions cannot be invoked against trans women with a GRC because they are sex‐based. The difficulty with this argument is that it confuses the effect of, and relationship between, the GRA and EA. The GRA does not, nor was it ever intended to, have consequences for equality law. Rather, it deals exclusively with the issue of legal recognition. Of course, the sex‐based exceptions permit discrimination in women‐only spaces in circumstances where this can be shown to be ‘a proportionate means of achieving a legitimate aim’. But this provision does not distinguish between trans women with and trans women without a GRC. Moreover, placing emphasis on section 9(1) of the GRA, which recognises trans women with a GRC as women for ‘all purposes’, fails to acknowledge how recognition is circumscribed by the GRA in significant ways. Thus the scope of legal gender recognition is delimited in relation to competitive sport,65 parental status in the context of existing children,66 succession,67 peerages,68 and particular gender‐specific offences.69 However, more significant than any of these particular limiting provisions, is section 9(3) of the GRA which makes clear legal gender recognition is subject to ‘any other enactment or any subordinate legislation’.70 In other words, and by virtue of this provision, legal recognition under the GRA is subject to subsequent and qualifying legislation. That is, if there is conflict between the GRA and the EA, the EA trumps the GRA to the extent of conflict. Thus the argument sex‐based exceptions cannot be invoked against trans women GRC‐holders because of their female status under the GRA needs to be treated with caution. Ultimately, it is a question of statutory interpretation. If Parliament had intended for the exceptions to be confined to non‐GRC holders, that is, to remove GRC holders from the ambit of permitted discrimination, it could have drafted the EA accordingly and in clear terms. Yet, there is nothing in the EA, its explanatory notes or in the parliamentary debates preceding its enactment to suggest the exceptions cannot be invoked against GRC holders. Rather, trans people, covered by the protected characteristic of ‘gender reassignment’ enjoy a set of benefits and detriments under the EA. There appears to be no good reason to think GRC holders were intended to bear an asymmetrical relationship to this balancing of rights. While trans women GRC‐holders are considered women for most legal purposes, it is clear they are not considered women for all legal purposes. Where a discrimination case is brought on the basis of ‘gender reassignment’ we encounter another limit to the comprehensiveness of legal gender recognition, for the exceptions do not differentiate between types of person falling under this protected characteristic against whom they can be invoked. Before moving on to consider the argument trans women without a GRC, who wish to pursue a discrimination claim under the protected characteristic of ‘gender reassignment,’ require a male comparator, it is important to dwell further on the relevance of the sex‐based exceptions, lest it be thought they have more practical importance than they do. The scope for application of the exceptions is circumscribed. A woman's organisation seeking to exclude a trans woman from a women‐only space must justify this decision on the basis that it is ‘a proportionate means of achieving a legitimate aim’. This threshold may be difficult to meet in practice, especially in relation to bathrooms and changing rooms. But even in relation to domestic violence refuges or rape crisis counselling services, it may be difficult for women's organisations to rely on the exceptions. Gender critical feminists will point to the explanatory notes to schedule 3 which state it is lawful to exclude a trans woman in circumstances where organisers judge that non‐trans women clients who attend group sessions are unlikely to do so if a trans woman is present.71 But while explanatory notes provide material on which a court may draw in interpreting a statutory provision,72 they are not determinative. Ultimately, in order for exclusion to be justified, it must be found to be both ‘proportional’ and ‘legitimate’. In my view, it would be hard to conclude exclusion of a trans woman sexual abuse victim would be a ‘proportionate’ response to the possibility some non‐trans women might feel uncomfortable in her presence. Moreover, the burden of proof rests with service providers and any measures adopted in relation to trans women must be the least intrusive to achieve a legitimate aim.73 It is worth restating not one single case has been reported where a service provider has successfully relied on a sex‐based exception. The reasons for this include the fact that organisers of women‐only spaces generally respect the rights of trans women, as noted above, and because the exceptions set a high evidential bar. It may also be due, at least in part, to trans women self‐excluding from women‐only spaces because of the chilling effect of the exceptions and because of the toxic climate that has arisen in the wake of proposed reform of the GRA. It is recognised that a proportionality argument may prove successful in the prison context where transfer is sought to a women's prison, and especially so where the offender has committed sexual offences. However, current prison policy, as already noted, provides for transfer of (trans and non‐trans) women prisoners to a man's prison where their security profile renders them a danger to other inmates.74

Argument Two ‐ the appropriate ‘comparator’ for a trans woman non‐GRC holder who brings a discrimination claim under the protected characteristic of ‘gender reassignment’ is a non‐trans man R (Green) v Secretary of State for Justice (Green), a case in which a trans woman prisoner, located within a men's prison, failed to establish she had been the victim of discrimination in circumstances where the prison governor had denied her access to a series of items of apparel available to women (tights, make‐up, wig …): A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.76 This argument, if correct, would, given the relatively low number of GRCs issued so far, 75 doom most trans women's discrimination claims to failure, at least in contexts where discrimination takes the form of exclusion from women‐only spaces. Those gender critical feminists making this argument rely on the following comments made by HHJ Richardson in, a case in which a trans woman prisoner, located within a men's prison, failed to establish she had been the victim of discrimination in circumstances where the prison governor had denied her access to a series of items of apparel available to women (tights, make‐up, wig …): It should be recognised that Green was not concerned with women‐only space. That is, the case was not concerned with the question of whether to allocate a trans woman to a women's prison. Accordingly, HHJ Richardson's comments are not confined in this way. Rather, they extend to all trans women lacking a GRC who pursue a discrimination claim in any context under the protected characteristic of ‘gender reassignment’. Thus, according to Richardson's analysis in Green, the overwhelming majority of trans women bringing a discrimination claim, because they currently lack a GRC, would have their experience benchmarked against a male comparator. The effect of this would be to reduce such cases of discrimination to the poverty of an ‘equal misery’ jurisprudence. Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women‐only bathroom or domestic violence refuge, her experience would be compared to that of a non‐trans man. Obviously, and even applying the ‘proportionality’ test, a non‐trans man would have been excluded. The conclusion that must follow is that there has been no discrimination. Crucially, HHJ Richardson's analysis makes the protected characteristic of ‘gender reassignment’ unworkable in various contexts, including the present context of accessing women‐only space. This can never have been the intention of Parliament given the breadth of coverage of the provision and the mischief it was designed to remedy. Moreover, the very existence of the sex‐based exceptions, as well as their circumscribed parameters of operation, serves to highlight how trans women's right to access women‐only space is the default position under the EA. Accordingly, HHJ Richardson's analysis must be wrong. In Green, Richardson claimed to be influenced in his analysis by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC77 (Croft). Yet the Court of Appeal's analysis in Croft differs in a fundamental respect. While Richardson presents lack of a GRC as critical in determining an appropriate comparator, the Court of Appeal in Croft was more circumspect, emphasising ‘the respondent could not escape liability on the basis that C was at the material time a man and that prohibition on the use of the female toilets meant that she was treated no differently than other men’.78 Rather, Croft articulated the proposition that the question of when women's toilets could be used by a trans woman depended on the overall circumstances. Key among these circumstances appears to have been whether or not C was socially accepted as a woman in her working environment. As the Court of Appeal held: ‘[t]he employee was not treated less favourably than other women employees unless and until she could establish that she should be treated as a woman.’79 Thus, Croft, which precedes the EA, and which must therefore be read in light of its provisions, does not support the assertions of HHJ Richardson upon whom some gender critical feminists rely. Crucially, there are only two interpretations open: first, HHJ Richardson's analysis is correct and therefore section 7 of the EA is effectively unenforceable in a number of contexts, including the present context of access to women‐only spaces or second, his analysis is an incorrect statement of the law. To my mind, the latter interpretation appears compelling as it cannot be said Parliament intended to create discrimination law rights for a minority group, only a handful of whom could ever enjoy them. It seems unlikely Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did. Indeed, in the only case on point apparently litigated since the enactment of the EA, a County Court awarded a trans woman £1,500 in damages after a publican refused her access to the women's toilets and then barred her from the pub when she complained.80