SOMETHING FOR EVERYONE

A GUIDE TO NAVIGATING UK LAW ON SINGLE-SEX TOILET, WASHING & CHANGING FACILITIES IN WORKPLACES & IN SERVICES PROVIDED TO THE PUBLIC

Something for Everyone – Single Sex Facilities and the Law – Legal FeministDownload

DISCRIMINATION CLAIMS ABOUT SINGLE SEX FACILITIES

1. If an employee thinks that her employer’s practices or policies in relation to single sex facilities in the workplace are discriminatory, she can bring a claim in the Employment Tribunal under the Equality Act 2010 (“EqA”). Similar EqA claims about single sex facilities can be brought in the County Court by users of services which are open to the public, like swimming pools, libraries, hospitals and restaurants.

2. The types of EqA claim which are most likely to be brought in the Employment Tribunal or County Court about single sex facilities are claims for indirect discrimination and claims for harassment related to sex. Other possible claims, which are not dealt with here, are for direct sex discrimination and for sexual harassment (which differs slightly to harassment related to sex).

Indirect discrimination

3. Indirect discrimination claims which might be brought by people who wish to access single sex facilities include:

> A claim by a female employee or service user for indirect sex discrimination brought on the basis that women are more disadvantaged by having to undress, shower or use the toilet in the presence of males than the other way around.

> A claim for indirect religion or belief discrimination brought by an employee or service user who adheres to a religion, such as Islam or some forms of Judaism or Christianity, which prohibits or discourages undressing or being in intimate proximity with people of the opposite sex.

> A claim for indirect religion or belief discrimination brought by an employee or service user with a protected philosophical belief, such as gender critical belief, which recognises the importance and relevance of the differences between the biological sexes.

> A claim for indirect age discrimination brought by an older employee or service user who abides by standards of modesty in relation to undressing, using the toilet or washing in proximity with people of the opposite sex which are more prevalent in older age groups.

4. At the same time, people who wish to access single sex facilities provided for the opposite sex may bring indirect gender reassignment discrimination claims, if their employer or service provider requires trans people to use facilities according to their biological sex. Many (though not all) people who identify as the opposite sex have the protected characteristic of gender reassignment. A claim of this sort would be brought on the basis that (for example) it is more disadvantageous for a man who has the protected characteristic of gender reassignment to use the men’s facilities than it is for a man who does not have the protected characteristic of gender reassignment.

5. In an indirect discrimination claim, if the employee or service user shows that the practice or policy relating to single sex facilities is, on the face of it, indirectly discriminatory, it is then open to the employer or service provider to show that the practice or policy is nonetheless justified because it is a proportionate means of achieving a legitimate aim (“the justification defence”).

Harassment related to sex

6. This is unwanted treatment related to sex which causes the “proscribed effect”. The proscribed effect is that the treatment violates the employee or service user’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her. Harassment can be a one-off event or a series of events or an ongoing practice. Thus an employee or service user can complain either about one or more incidents in which she has encountered a male in the women’s facilities or about a policy or practice of permitting this to happen, so long as she can establish that what she is complaining about is “conduct related to sex”. At present there is no legal authority which says that allowing males to use women’s facilities is “conduct related to sex”, but the point is being argued in Peggie v NHS Fife. The test for whether conduct is “related to” a protected characteristic is a broad one.

7. It is not enough for the employee or service user simply to say that she feels the proscribed effect; it must be reasonable for her to have felt it. This is usually the key issue in harassment claims. In considering this, the court or tribunal must take into account all the circumstances of the case.

WORKPLACES: THE 1992 HEALTH & SAFETY REGULATIONS

Facilities required in workplaces by the 1992 Regulations

8. The law which mandates that single sex facilities must be provided in workplaces is not contained in the EqA. It is contained in the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Regs”), by which workplaces must have sanitary conveniences (toilets) (Reg 20) and washing facilities (Reg 21). They must also have changing facilities if these are needed because of the type of work done in the workplace or for health reasons (Reg 24). All these facilities must be both “suitable” and “sufficient”.

9. The facilities must be for the use of all people who work in the workplace, not just employees. This includes any type of worker or self-employed contractor.

10. Toilet, washing and changing facilities in workplaces will only be “suitable” for the purposes of the 1992 Regs if there is separate provision for men and women.

11. The only exceptions to the single sex rule for workplace facilities are:

> Toilets: toilets can be in separate lockable rooms (not cubicles).

> Washing: if the only washing required is of hands, forearms and face, the washing facility may be shared between men and women. Otherwise, washing facilities can be in individual lockable rooms that are intended for single-person use (not cubicles).

> Changing: changing rooms can be shared between men and women if separate provision is not necessary for reasons of propriety. Where separate provision is necessary for reasons of propriety, this can be in a single changing room as long as it can be used separately by men and women (i.e. at different times).

12. The 1992 Regs do not say how many facilities must be provided in a workplace to be “sufficient”, other than in the case of old, unmodernised factories, where there must be at least one suitable toilet for use by females only for every 25 female workers, and the same for males.

13. Employment Tribunals do not have jurisdiction to determine complaints about breaches of the 1992 Regs. The principal method of enforcement is via the Health and Safety Executive (“HSE”), which has powers to impose sanctions on employers.

14. In theory it might be possible for an individual to bring a claim for a breach of the 1992 Regs in the County Court on the basis that the employer has failed to comply with a statutory duty, but since the 1992 Regs do not themselves provide for a civil remedy it would be difficult to persuade a court to permit such a claim to proceed, particularly where an enforcement mechanism is provided through the HSE.

Equality Act complaints about single sex facilities in workplaces

Indirect discrimination

15. Although the 1992 Regs cannot be relied on directly in an Employment Tribunal claim (see §§13-14 above), they are pivotal in Employment Tribunal claims for indirect discrimination under the EqA about the provision of single sex facilities in the workplace.

16. If an employee brings an indirect discrimination claim about a failure to provide single sex facilities (as described at §3 above), the existence of the 1992 Regs makes it very difficult – probably impossible – for the employer successfully to invoke the justification defence (see §5 above). To be successful, the employer would have to show that it had a legitimate reason for contravening the mandatory statutory duty in the 1992 Regs and that it did so in a proportionate way. It is difficult to see how this argument could conceivably work.

17. Similarly, if an employee brings an indirect gender reassignment discrimination claim about an employer’s refusal to allow him or her to use the facilities provided for the opposite sex (as described above), the fact that the 1992 Regs mandate single sex facilities in workplaces means that the employer’s justification is virtually watertight.

Harassment related to sex

18. The existence of the 1992 Regs is also significant in relation to claims of harassment related to sex which are about the provision or use of single sex facilities in workplaces (as described at §§6-7 above), even though employees cannot rely on the 1992 Regs directly in the Employment Tribunal.

19. In a claim of this sort, one of the “circumstances” that will have to be taken into account by the Employment Tribunal (see §7 above) is the fact that the 1992 Regs mandate single sex facilities in the workplace. It is very likely that an employee would be able to persuade a Tribunal that it was reasonable for her to experience a breach of this law as a violation of her dignity, since the law itself recognises that single sex facilities can be necessary for reasons of “propriety”.

The meaning of “woman” & “man” in the 1992 Regulations

People without Gender Recognition Certificates

20. There is no law which allows people to self-identify into the opposite sex for the purposes of the 1992 Regs, or indeed for the purposes of any other UK legislation (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the 1992 Regs or for any other legal purpose. Only a Gender Recognition Certificate (“GRC”) can have this effect. Thus under the 1992 Regs a woman is, at least, anybody who was born female and does not have a GRC, and a man is, at least, anybody who was born male and does not have a GRC.

21. This means that the 1992 Regs do not allow employers to provide toilet, washing or changing facilities only on a self-ID basis. If an employer allows males who do not have GRCs to use a women’s facility, it will no longer be providing a facility which is for women only. This will amount to a failure to comply with the 1992 Regs unless there are suitable and sufficient alternative women’s facilities available elsewhere in the workplace which are not open to any males who do not have GRCs.

People with Gender Recognition Certificates

22. For people who do have GRCs the position is unclear. Under the Gender Recognition Act 2004 (“GRA”) the consequence of a person being awarded a GRC is that his or her sex changes to the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1). However there are some exceptions to this principle, so there are some laws under which males with GRCs do not have to be treated as women (and vice versa). It is arguable that the 1992 Regs should or must be treated as an exception. If they are, then men with GRCs should be treated in the same way as men without GRCs in relation to single sex facilities in the workplace (see §§20-21 above).

23. In the For Women Scotland case the Supreme Court is currently deciding whether the principle in the GRA applies to the EqA. The Court is not deciding whether the principle applies to the 1992 Regs, so the judgment will not bring certainty about whether employees with GRCs should have access to opposite-sex facilities in workplaces. However, it is likely to give a steer as to how “woman” and “man” should be defined for the purposes of legislation other than the EqA, such as the 1992 Regs.

24. If it can clearly be inferred from the Supreme Court judgment that a GRC does not change a person’s sex for the purposes of the 1992 Regs, then the position for employees with GRCs will be the same as it is now for those without GRCs (see §§20-21 above).

25. If it can clearly be inferred from the Supreme Court judgment that a GRC does change a person’s sex for the purposes of the 1992 Regs, then an employer will have to ensure that there are sufficient women’s facilities in the workplace which can be used by males with GRCs and sufficient men’s facilities which can be used by women with GRCs. However, that does not mean that there will be no legal route for complaint from employees who wish to have access to single sex facilities on a biological sex basis. These employees might still bring complaints arguing that it amounts to indirect discrimination or harassment related to sex (as described at §§3-7 above) for the employer not to also provide single sex facilities on a biological sex basis.

SERVICES PROVIDED TO THE PUBLIC: THE EQUALITY ACT 2010

Facilities permitted in services by the Equality Act

26. There is no equivalent to the 1992 Regs for members of the public who use services such as hospitals, swimming pools, restaurants etc. Instead the position is governed entirely by the EqA, and is considerably more complicated.

27. The starting point is that under the EqA it is usually unlawful direct sex discrimination to exclude service users of one sex from a facility. However there are exceptions to this rule which allow a service provider to provide single sex facilities for one of five permissible reasons. These reasons include that “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex”. Another permissible reason is that the service is a hospital or a similar setting.

28. It is not enough for one of these five reasons to apply. It must also be justifiable in the particular circumstances for the facility to be provided only to women or only to men. The service provider must be able to show that having a facility only for women or only for men is a proportionate means of achieving a legitimate aim.

Equality Act complaints about single sex facilities in services

Indirect discrimination

29. The exceptions in the EqA for single sex facilities are permissive rather than mandatory, which distinguishes them from the rules for workplaces in the 1992 Regs. Thus a service provider does not have to provide single sex facilities for service users. However, a service provider which fails to do so could find itself facing a complaint of indirect discrimination from a service user of one of the types described in §3 above.

30. Here there is no mandatory statutory duty which strengthens the service user’s case, as there is for employees under the 1992 Regs (see §22 above). Nonetheless, depending on the facts and evidence in the case, the strong societal tradition in favour of single sex facilities mean that it will still be difficult for the service provider successfully to invoke the justification defence (see §5 above). If the complaint is of indirect sex discrimination, other factors favouring the complainant should include the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities. For similar reasons it will be difficult for a service user to succeed in an indirect gender reassignment discrimination claim based on a wish to access the facilities provided for the opposite sex.

Harassment related to sex

31. Again, depending on the facts and evidence, it is likely to be difficult for a service provider to defend a claim of harassment related to sex (see §§6-7 above) by arguing that it was not reasonable for a female service user to feel that her dignity was violated by having to share facilities with males. As above, compelling factors include the societal tradition in favour of single sex facilities, the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities.

The meaning of “woman” & “man” in the Equality Act

People without Gender Recognition Certificates

32. Under the EqA a woman is, at least, anybody who was born female and does not have a GRC and a man is, at least, anybody who was born male and does not have a GRC (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). There is no law which allows people to self-identify into the opposite sex for the purposes of the EqA or for the purposes of any other UK legislation. The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the EqA or for any other legal purpose. Only a GRC can have this effect.

33. Thus if a service provider allows males who do not have GRCs to use the women’s facilities:

> The facilities will no longer qualify as single sex facilities under the exceptions in the EqA (see §§26-28 above).

> Therefore the service provider will have no permission in law to exclude any other men from that purportedly single sex facility.

> The service provider would be vulnerable to indirect discrimination claims of the types described in §3 above or harassment claims of the type discussed at §§6-7 above from service users who wish to have access to single sex facilities. These will be harder to defend if there are no suitable single sex facilities available anywhere else in the service.

People with Gender Recognition Certificates

34. Under the GRA a person who has a GRC becomes the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1) except in the situations where that principle does not apply. The Supreme Court is currently deciding in For Woman Scotland whether the principle applies to the EqA.

35. If the Supreme Court decides that a GRC does not change a person’s sex for the purposes of the EqA, then trans people with GRCs will be in the same position as those without GRCs. That is, as service users they should be treated according to their biological sex when using single sex facilities (see §33 above).

36. If the Supreme Court decides that a GRC does change a person’s sex for the purposes of the EqA, then in principle a service provider is entitled to allow males with GRCs to use facilities provided for women (and vice versa). However:

> The EqA contains a further set of exceptions which allow service providers to exclude trans people with GRCs from single sex facilities where it is a proportionate means of achieving a legitimate aim to do so. In this way, service providers may provide facilities on a single biological sex basis.

> A service provider which does not invoke these exceptions might face complaints of indirect discrimination such as those in §3 above or harassment of the type described in §§6-7 above from service users who wish to have access to single sex facilities on a biological sex basis.

> A service provider which does invoke these exceptions might face a complaint of indirect gender reassignment discrimination of the type described at §4 above. Claims of this sort will be easier for the trans service user to win than they would be if the Supreme Court had decided that a GRC does not change a person’s sex for the purposes of the EqA.

WHAT EMPLOYERS & SERVICE PROVIDERS SHOULD DO

37. The current state of the law on single sex facilities is clearly unsatisfactory. Quite apart from anything else, it seems that employers and service providers should distinguish between trans people who have GRCs and those who do not. In services in particular this will almost always be impossible to do. Furthermore in both workplaces and services, it makes no difference to other users of the facilities whether a trans person has a GRC or not; they remain a person of the opposite sex.

38. The upshot of this mess is that the safest (although not risk-free) option for service providers and employers is to offer some “unisex” or “gender neutral” facilities for the use of people who do not wish to use facilities according to their sex, and to provide sufficient single sex facilities on a biological sex basis for everybody else, if it is possible to do so (note this should not be done be repurposing accessible facilities). Neither the 1992 Regs nor the EqA prohibits the provision of unisex facilities in addition to single sex facilities.

39. This solution will not be available to all employers or service providers because of the burden of cost and/or a lack of physical space. Where it is not possible, employers and service providers are caught between the prospect of discrimination claims brought by people who want single sex facilities and those brought by trans people who want to use facilities in their acquired gender. It can only be hoped that the Supreme Court will clarify the position, and that if it does not, that the Government will step in and amend the relevant legislation so that employees and service users can understand their rights and employers and service providers can understand their obligations.

25 February 2025

This article does not constitute legal advice or give rise to a lawyer/client relationship. Specialist legal advice should be taken in relation to specific circumstances. The contents of this article are for general information purposes only. No warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. This work is licensed under the Creative Commons Attribution 4.0 International License.

Crowd-funding: transparency and trust

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb.

Crowd-funding is frequently used as a way of funding claims: the UK’s main legal crowd-funding platform, CrowdJustice, is currently hosting over 1,500 live campaigns, with widely varying levels of support. 

Crowd-funding can be a powerful way of righting a wrong which, because of the high cost of litigation, would otherwise go un-righted. It has contributed to “gender wars” cases on a number of occasions already: Keira Bell, Maya Forstater, Henry Miller, Julie Bindel, For Women Scotland, Fair Play For Women, LGB Alliance, Jo Phoenix and Lizzy Pitt have all used it to good effect, to mention just a few. These cases have been funded, for the most part, by large numbers of small donations. Many of them have been successful. 

But there are worries and uncertainties about this method of funding litigation. Any member of the public can decide whether a particular grievance tugs hard enough on their heartstrings to persuade them to contribute. But they won’t necessarily have very good information about how likely a given case is to succeed, or whether it is being run in a sensible, cost-effective or prudent manner. Sometimes donors have undoubtedly been persuaded to waste their money to the benefit of no-one but lawyers. 

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb. 

On launching 

At the outset, we think a crowdfunder should address the following questions: 

What are the outline facts of the case? 

Tell the story in a paragraph or two. What has happened?

What is the cause of action? 

That is to say, what kind of legal claim is proposed? A breach of contract claim? Judicial review of the decision-making of a public or quasi-public body? Discrimination contrary to the Equality Act? Negligence?

How strong is the case? 

A short advice by a named lawyer on how likely the case is to succeed should be published as soon as possible, together with (or followed by, if not yet drafted) the statements of case on both sides. 

It may be objected to this that a candid assessment of merits “gives too much away”. We don’t think this is a serious concern. Even if courts or tribunals were to read these assessments (which we think unlikely), they will make up their own minds on the merits of the case. 

More fundamentally, if you don’t think the case has good merits, then unless there’s some exceptional justification — which you should be willing to explain — you shouldn’t be asking the crowd to pay for it. We don’t suggest that it will always be desirable to give as granular an assessment of the strengths and weaknessess of each aspect of the case as might be provided confidentially to the client; but it should be possible at least to say in the round how good the chances are of a substantial and worthwhile measure of success. 

Does the outcome of the case matter to anyone but the individual claimant, and if so why? 

It’s perfectly open to individual donors to support a case just because they feel the claimant has suffered an injustice, and they want to help. But donors should be given the information on which to make an assessment of the wider importance of the case. 

If the case is of strategic importance, what is the individual claimant’s attitude to settlement?

Claimants won’t be able to give cast-iron guarantees that they will not settle in any circumstances, but a statement of intent not to settle the case confidentially in a manner that benefits only him or her, anyway unless advised it’s essential to do so,  may give contributors some comfort. 

What are the best case and worst case outcomes? 

Who are the lawyers, and what’s their expertise and track record?  

What total costs are anticipated? What factors could push those up? What work will be covered by the initial target?

The answer to the third question may give an indication of whether the case is being prudently managed: it should not normally cost more than a few thousand to get an initial advice on merits and draft the claim. If for some reason the case is going to be particularly expensive to run, that should be explained at the outset.

Is there a risk of having to pay the other side’s legal costs? What’s the plan for that?

What will be done with any excess left in the fund after all legal fees are paid?

Running the case 

Once the case is launched, it should be run with maximum transparency throughout. There should be  prompt publication of any case documents that it is possible to publish, and lawyers should take all reasonable steps to facilitate public attendance at in-person or  remote hearings, access to witness statements, documents referred to in court, reporting, live-tweeting etc. 

Legal fees

Legal representation is expensive, and that’s unavoidable: if crowd-funded cases are to be competently done, the lawyers will need to be able to earn from them at levels not too far from their usual rates. But lawyers’ “usual rates” often encompass quite a wide variation depending on the means of the client. When billing on a crowd-funded case, lawyers should remember that they are being paid from large numbers of small donations from donors of modest means. It doesn’t seem fair to treat “the crowd” as a client with a particularly deep pocket. 

The result 

The outcome of the case should be announced promptly with transparency, honesty and completeness; it should never be “spun” as more successful than it was. 

A v Chief Constable of West Yorkshire and the transformed landscape of consent

The decision in A v Chief Constable of West Yorkshire [2004] UKHL 21, [2005] 1 AC 51 has been the subject of much recent analysis by those  involved, and those interested, in the hearing before the Supreme Court in For Women Scotland v Scottish Ministers. The Scottish Ministers (Respondent) and Amnesty International (intervening) have relied on it to support the proposition that recognition of trans people in their acquired gender is longstanding and follows the line of case law necessary to give effect to the decision in P v S and Cornwall County Council [1996] ECR I-2143 and EU sex discrimination law.

Lord Bingham, giving the leading judgment, stated that [11]:

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.

(Aidan O’Neill KC, on behalf of For Women Scotland, deprecated this as the “what you don’t know can’t hurt you” principle). 

A may, in the event, prove to be of little significance in For Women Scotland. There is no obvious route to reconciling the facts in A with the requirements of EU law other than by a tortuous route through the Sex Discrimination Act 1975. Happily, that may now be circumnavigated by the protections on grounds of gender reassignment that follow from section 7 Equality Act 2010. But that will not put to bed the question as to whether preventing a transgender person from carrying out intimate searches (for instance) may amount to unlawful discrimination.  

The answer to the question is likely to be found in how the legal and societal understanding of consent has transformed in the twenty years since Lord Bingham’s speech.

Michael Foran has noted

Leaving aside how the visual test is undertaken and by whom, this displays, at best, a remarkable ignorance and, at worst, a shocking indifference to the human rights of women who do not consent to being intimately searched by males.

This transformation has been seen in the criminal law, where the Sexual Offences Act 2003 defines the giving of consent as where a person “agrees by choice, and has the freedom and capacity to make that choice”. Applying this definition, the Court has found that the complainants did not consent where they were deceived as to the sex of the person with whom they were having intercourse (R v McNally [2013] 2 Cr.App.R.),  use of a condom (Assange v Sweden (2011) 108(44) L.S.G. 17) or an intention to withdraw before ejaculation (R(F) v DPP [2013] 2 Cr. App. R. 21).

The landscape of consent has also been transformed in various different areas of civil law.

In 2015, the Supreme Court in Montgomery v Lanarkshire [2015] UKSC 11 [2015] 1 AC 1430 overturned decades of conflicting authority and affirmed that the standard of consent required to defeat claims in medical negligence was the standard of “informed consent”, and that information as to risk must be given proactively unless the patient positively indicates that he or she does not wish to receive it, or that (exceptionally) there was a therapeutic reason why such information could not be given; Lord Kerr and Lord Reed, in the leading judgment, were emphatic that this could not be the foundation of the general rule [85].  Lady Hale stated that [116]:

Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.

Notably, Lady Hale also gave a judgment concurring with Lord Bingham in A v Chief Constable in which she envisaged the effect of the Gender Recognition Act  2004 as being that “it will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live”. Had the decision in Montgomery been made earlier, her consideration in A v Chief Constable might well have been different.

“Genuine autonomy” is not restricted in principle either to pregnant women or to medical negligence. It is echoed in the Mental Capacity Act 2005 (again post-dating the decision in A) where the criteria for making a capacitous decision include the person’s ability to understand relevant information, retain and use or weigh that information (sections 2 and 3). Even where a person does not have capacity, his or her wishes and feelings, beliefs and values, and other factors they would likely consider, are core aspects of any “best interests” decision taken under section 4. 

Lady Hale’s usage of the term reflects the growing influence of the European Convention on Human Rights, and in particular Article 8, even in cases not directly concerned with alleged breaches of Convention rights, or the effect of those rights upon statutory interpretation. 

Most obviously, the rights under Article 8: the principle of autonomy and the consequent principle that a loss of autonomy can be either prevented by injunctive relief or compensated for, has developed into a standalone tort, misuse of private information, Google v Vidal-Hall [2015] EWCA Civ 311 [2015] WLR (D) 156. The court has found that a lack of informed consent to the use of information amounts to a loss of autonomy in finding liability, and in measuring damages, see e.g. Ali v Channel 5 [2018] EWHC 298 (Ch).  

“What you don’t know can’t hurt you” as a principle has been given short shrift in recent cases concerning alleged harassment contrary to the Protection from Harassment Act 1997 (again, the case law in relation to this Act is replete with the influence of Article 8). In Gerrard v ENRC [2020] EWHC 3241 (QB), [2021] EMLR 8, Richard Spearman KC (sitting as a Judge of the  High Court) noted that

By their very nature, those particular types of conduct may well be carried out in such a way that, and with the intention that, they will be neither discovered nor discoverable by the victim. […] For one thing, the longer the acts remain concealed from the victim the longer the acts can be continued, and the more extensively they can be pursued, without the victim taking practical steps to avoid them, or legal steps to prevent them. For another, some perpetrators may derive satisfaction from knowing that, for example, their “watching and spying” is being carried out without the victim having any idea that they are being watched and spied upon. Further, a number of perpetrators will be concerned that they may be subject to criminal penalties or civil remedies if they are discovered.

Accordingly, if acts such as following, monitoring electronic communications, and watching and spying do not amount to the particular kind of harassment which constitutes stalking in circumstances where the perpetrator (1) conceals those acts, (2) has no intention that they should be discovered by the victim, and (3) reasonably believes that they will not be discovered (for example, because they are carried out with skill and care), that would greatly cut down the protection for victims which the PHA provides.

In 2019, the Divisional Court upheld the decision of the regulator to strike off a surgeon who had allegedly branded two patients’ replacement livers with his initials. The doctor had pleaded guilty to two charges of common assault. Neither patient was physically harmed by the branding, and it would never have been discovered if one of the patients had not required emergency surgery a few days after the original operation; the second alleged incident only came to light from a disclosure by an anaesthetist (following the first incident) many years after the event.

The relationship between the information available to a person and his or her enjoyment of physical autonomy, psychological integrity and dignity (as evident in these authorities and in statute) is a core element of the right to private life under Article 8 of the European Convention on Human Rights and in the Strasbourg jurisprudence. The Strasbourg court has found violations of Article 8 based on a lack of informed consent where:

–     The police entered a person’s home, after he had cooperated to the extent of opening the door to them because the visit had been unannounced, Sabani v Belgium 53069/15 2022, [46];

–     A person had not been given information as to the risks of adverse outcomes for medical procedures and treatment,  Y.P. v Russia  43399/13 2022; [42] [53-59], Csoma v Romania, 8759/05 2013 [65-68]; Vilnes and Others v Norway 52806/09 and 22703/10 2013, [244];

–    The state has failed to set up an appropriate regulatory framework and ensure professional standards providing for informed consent, Mayboroda v Ukraine 14709/07 2023 [62] [64].

Against this, a public authority does not itself enjoy the benefit of Convention rights because it cannot claim victim status. It is therefore difficult to see how a transgender police officer, who may only lawfully search a person by virtue of his or her role in exercise of that public function, could assert any countervailing “right” to do so if the subject of the search had not been informed of his or her right to object and of the fact of the police officer’s transgender status. Unless the police officer was willing for that information to be disclosed to prospective search subjects, the only possible means of protection of the hypothetical subject’s rights would be by a prohibition on the officer carrying out searches at all. Even if it were arguable that the police officer’s personal rights did, under Article 8, extend to the right to fulfil all aspects of their role (although this is doubtful), this would have to be balanced against the rights of prospective search subjects. The “intense focus test” applied to the balancing of conflicting rights operates from the starting point that neither party’s rights automatically takes precedence over the other: however, the right to autonomy, dignity and with it to informed consent are far more fundamental, wide-ranging and established facets of Article 8, and far more central to the concept of private life than the exercise of one aspect of a job which is fundamentally a public function inevitably involving some degree of interference with the subject’s rights in the first place. It is difficult to see any circumstances in which the rights of the prospective subject would not prevail. 

In fact, this is addressed in A by Lord Rodger, whose judgment concurred with Lord Bingham and Lady Hale on the principle of liability but dissented on this point, [24]  [25]: 

[I]n my view, section 54(9) of PACE means that it would have been unlawful for Ms A to search female suspects and in practice she could not have searched — and indeed would not have wanted to search — male suspects. 

[…]

[T]he logic of the directive, and of the 1975 Act, must be that, while a Chief Constable — who is the equivalent of an employer for these purposes — is not entitled to refuse to employ a transsexual as a police officer on the ground of her sex, equally, she is not entitled, except as provided by the legislation, to insist that she be employed in a different way on the ground of her sex. More particularly, she cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that he be employed in such a way that his homosexuality or dyslexia is kept confidential in all circumstances. Of course, the Chief Constable should not compromise the officer’s privacy by revealing the matter in question when there is no good reason to do so. But, equally, an officer cannot insist that his or her Chief Constable should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential. More generally, the Chief Constable must be free to take all appropriate decisions relating to the deployment of the officer even if, in consequence, the matter becomes known. 

Although Lord Bingham’s judgment post-dated the incorporation of rights contained in the European Convention on Human Rights into UK law, it concerned an index act which preceded it, and the passing consideration given to the “reasonable objections” of a search subject did not operate from a starting point of the Chief Constable’s duty to act compatibly with the Convention,  or contain any analysis of the search subject’s rights under the Convention and in relation to informed consent. If that decision were taken today, and in the context of how societal and legal standards around consent have developed, it is unlikely that the court could come to the same conclusion.  It is Lord Rodger’s analysis that has stood the test of time. 

Beth Grossman is junior counsel to the Lesbian Interveners in For Women Scotland v Scottish Ministers. The views expressed above are personal views only. 

BSB Answers on Equality Duty Proposed Changes

The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing. The BSB replied by inserting comments into our questions document. The original LF text is in plain text, and responses by the BSB in italics:

____________________

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.

We would like to request the following information.

  1. Were any individuals and/or groups consulted in formulating these proposals?  We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.      

The Bar Standards Board engages with a wide range of stakeholders on a continuing basis in taking forward our responsibility to promote diversity.  Specifically, we also engaged with the BSB Taskforces during the development and drafting of the proposed Equality Rules.                     

  1. Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.

All research carried out by the BSB in relation to equality, diversity and inclusion are listed in response to question 3a. below.

  1. In the 5 years to 31 August 2024:  (a) What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? (b) How often was non-compliance found?

Research carried out by the BSB

All research carried out can be found in this link:

https://www.barstandardsboard.org.uk/news-publications/research-and-statistics/bsb-research-reports.html

The following reports are of particular relevance:

BSB Pupillage Recruitment Report

https://www.barstandardsboard.org.uk/static/3b34ecde-3a3c-4e41-962d69e26d984531/c5600558-1097-4128-9eeac249683e08d3/BSB-Pupillage-recruitment-FINAL-report-February-2024.pdf

 Pupillage Quantitative Research Report

https://www.barstandardsboard.org.uk/static/a1864210-6f4b-4844-972aaa0269c5a614/Pupillage-Quantitative-Research-Report.pdf

 Pupillage Research Summary

https://www.barstandardsboard.org.uk/static/5c00760d-70f2-4893-a86dbb6b68761dfa/Combined-Pupillage-Research-Summary.pdf

 Income at the Bar by Gender and Ethnicity

https://www.barstandardsboard.org.uk/static/af6c9471-1328-4f4d-8f1baf5adb349d64/Income-at-the-Bar-by-Gender-and-Ethnicity-2022.pdf

 Trends in Demographics and Retention at the Bar 1990 – 2020

https://www.barstandardsboard.org.uk/static/12aaca1f-4d21-4f5a-b213641c63dae406/Trends-in-demographics-and-retention-at-the-Bar-1990-2020-Main-Body.pdf

Bullying, Discrimination, and Harassment at the Bar Report 

https://www.barstandardsboard.org.uk/static/896b55e0-72b2-4388-be291617735b8a25/ea23e7ad-cc4a-438f-b50d6929f2001c5d/October-2020-BDH-at-the-Bar-full-report.pdf

Regulatory Return

In 2020 the Supervision team issued the Regulatory Return to a selection of around 350 chambers, BSB entities and sole practitioners. A specific question in relation to Core Duty 8 was not included, but questions were asked to understand what chambers were doing to meet the requirements under the current Equality Rules, in relation to:

  • the inclusive working culture of chambers;
  • bullying, harassment, discrimination and victimisation;
  • diversity data;
  • flexible working; and 
  • allocation of work.

The Supervision team provided assessment letters to all those chambers selected, which set out specific actions (including those in relation to the current Equality Rules), where the required standard had not been met and further action was needed. For example, this included setting an action to ensure there was an anti-harassment policy, or making a recommendation for a fair allocation of work policy. The team worked closely to ensure that the actions were completed, until the chambers, BSB entities and sole practitioners could be assessed as low risk. Some of those selected required substantial guidance and input.

Our research (links above) shows that discrimination, bullying, and harassment persist within the Bar.

In the last 5 years 6 reports have been referred to the Supervision team specifically relating to concerns about discrimination. In addition, 5 reports were received in relation to bullying and harassment, as well as reports concerning other areas of the Equality Rules such as fair allocation of work and reasonable adjustments. There are also occasions where the team has initially received a report on an issue unrelated to the Equality Rules, only to discover that action is also needed in this area. For example, the team may receive a report relating to pupillage, but on exploring the matter further, there may be concerns about lack of reasonable adjustments for the pupil, the culture of chambers or victimisation.

For the most serious of cases, and in accordance with its Supervision strategy, Supervision Visits are carried out by the Supervision team and a report is then issued detailing the action needed. The team works with the chambers, BSB entities, sole practitioners or Authorised Education and Training Organisations to ensure that they have met their regulatory obligations, including those set out in the Equality Rules, and that all the actions have been completed, before re-assessing them as low risk.

  1. How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?         

There have been no disciplinary findings against barristers for non-compliance with Core Duty 8. The main reason is the use of the word “unlawfully” within the Core Duty, which limits any action we can take under CD8 to conduct that falls within the definition of discrimination in the Equality Act. This creates a relatively high bar for successful action. In contrast, under CD5 we have greater flexibility to address behaviour that is discriminatory in nature, without having to prove it amounts to unlawful discrimination. In the period specified, we have received 144 reports relating to discriminatory behaviour, of which 20 were allocated to Enforcement. Of these reports that were accepted for investigation, none had a breach of Core Duty 8 proved at Disciplinary Tribunal. The BSB received 98 reports relating to bullying & harassment, of which 22 were allocated to Enforcement; and 60 cases relating to Sexual Harassment, of which 21 were allocated to Enforcement.

  1. What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.

We are considering the equality impact of our rules on those who share protected characteristics. For example, we have proposed the removal of the mandatory requirement to have an EDO as we have evidence that the burden of this role disproportionately falls on the shoulders of those who share protected characteristics and often those at the junior end of the Bar. We held a roundtable discussion on the 5th of November with EDOs and DDOs to ascertain if there would be any adverse impacts as a result of removing this mandatory requirement. Through our consultation process we are very keen further to understand the equality impact of our proposals. This includes where they may have a positive impact, as well as where they may have an adverse impact. We are exploring this through our various engagement events, and we are very keen to hear from stakeholders on this point through the responses to our consultation.

As the EIA is currently in progress and the consultation process is a means for obtaining evidence on the equality impact, we are currently not able to share this document with you. However, we are keen to hear from Legal Feminist where you consider there to be either positive or adverse equality impact in relation to our proposed rules, and what if any mitigating actions we may take.

  1. What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.

Proportionality has been a key consideration in the drafting of the new rules. As our proposed rules only require the profession to ‘take reasonable steps’, what is reasonable will be assessed on a case by case-by-case basis where cost to chambers will be a relevant consideration. We will take on board any feedback received through this consultation process in relation to cost.

  1. What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.

Promoting access can be achieved through a wide range of interventions not all involving significant cost.  It will be for chambers to consider the most cost-effective solutions in their own circumstances.  Where there are chambers found to be not accessible after the 5-year period, it will be assessed on a case-by-case basis and fall on the facts to ascertain whether reasons for not doing so are justified. Cost of planning applications, listed buildings consent surveys and applications, project management and building works, potential moving costs, will all be factors that will be considered in deciding whether restrictions on accessibility can be reasonably justified.

In terms of accessibility audits and accessibility plans, these do not need to be externally commissioned. What is proposed is to demonstrate that access needs have been considered and reasonable steps have been taken to make one’s practice accessible. We will make extensive guidance and support available to the profession.

We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

No, the Business Plan lists total costs of £17,805k of which £8,477k are BSB direct staff costs and £3,412k are BSB direct non-staff costs and £5,916k is our contribution to shared services (so that £5,916k is a combination of staff and non-staff costs).

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.

Not precisely, Business Plan lists total costs of £14,732k of which £7,114k are BSB direct staff costs and £2,224k are BSB direct non-staff costs (so total BSB direct costs of £9,338k) and £5,394k is our contribution to shared services.

BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.

£9,028k to be precise and otherwise correct.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB direct budget is correct. The 2017-18 Business Plan doesn’t specify the precise costs for our contribution to shared services. The 2017-18 Business Plan only specified BSB direct costs.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

Correct

  1. (i)        Please confirm if our understanding as regards the budget for the years listed above is correct.

Please see above.

(ii)       How much is spent at present by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?

We do not allocate budgets in that way.

(iii)      Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so, will they be disclosed prior to the end date for responses to the consultation

We will look at how this is resourced as part of future planning cycles, once the outcome of the consultation is clear, the rules have changed, guidance has been produced and there has been a bedding-in period. However, this is likely to be a priority area of Supervision and enforcement, and it will be managed from within the current team, using our current approach to conducting thematic reviews.

Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.

In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:

  1. Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
  2. Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.

We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.

We look forward to hearing from you.

BSB Consultation on Equality Rules – Legal Feminist Questions

The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing:

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.

We would like to request the following information.

  1. Were any individuals and/or groups consulted in formulating these proposals?  We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.                                             
  2. Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.
  3. In the 5 years to 31 August 2024: What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? How often was non-compliance found?
  4. How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?                                                                    
  5. What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.
  6. What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.
  7. What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.
  8. We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each year’s business plan, but it appears to us that the following summary is correct.

BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.

BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

(i)        Please confirm if our understanding as regards the budget for the years listed above is correct.

(ii)       How much is spent at present  by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?

(iii)      Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so will they  be disclosed prior to the end date for responses  to the consultation

Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.

In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:

  1. Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
  2. Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.

We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.

We look forward to hearing from you.

Yours faithfully

FWS v Scottish Ministers: what to read before the hearing

The hearing next week before the Supreme Court of For Women Scotland v Scottish Ministers is a big deal.

Previous cases in the appellate courts have had serious implications for the impact of gender reassignment on women’s rights. Three in particular spring to mind: Croft v Royal Mail Group (2003), in which the Court of Appeal speculates inconclusively about what degree of surgical or medical “transition” ought to be required before a man should be allowed to use women’s facilities in the workplace; Goodwin v UK (2002), in which the European Court of Human Rights laid the foundations for the Gender Recognition Act 2004; and Chief Constable of West Yorkshire Police v A (2005), in which members of the House of Lords came up with the eye-popping notion of a transsexual who was “visually and for all practical purposes indistinguishable” from a member of the opposite sex, and opined that it would be unreasonable for detainees to be unwilling to be searched by “a trans person of the same sex” (ie a person of the opposite sex).

All three cases have something striking in common: there was no-one in court whose job was to represent the interests of women, and women’s rights were in each case casually swept aside. This appears with particular starkness at ¶91 of the judgment of the ECtHR in Goodwin:



No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

The alert reader will notice who in particular is meant here by the “society” that is expected to tolerate a certain inconvenience: women. The reader both alert and well-informed will understand by now that “inconvenience” has turned out to stand for things like being gaslit, tricked, shamed or coerced into sharing communal showers or changing rooms with any man who says he is a woman; being required to submit to a strip-search conducted by such a man; being tricked into submitting to intimate medical procedures at the hands of such men; or being imprisoned with male sex offenders.

Against this background, FWS v Scottish Ministers makes a refreshing change. The appeal is brought by a feminist organisation with the express purpose of defending women’s rights. For the first time, an appellate court considering these issues will be required to treat women as human beings with agency and rights of their own, and will be asked to give women’s rights and interests their full weight. It’s going to be a novel experience.

The written arguments of the parties and the intervenors have now all (with the exception of Amnesty UK’s intervention) been published. The arguments themselves make for pretty dry and technical reading, but we also have the benefit of analysis from various commentators. The purpose of this post is not to add to that, but to collect together a list of links for anyone interested in the issues. I’ll try to keep this page updated with any further commentary that becomes available (or comes to my attention) between now and the end of the hearing — so if there’s anything I’ve missed, please let me know in comments.

First, the written arguments of the parties and intervenors can be found here:  UK Supreme Court – For Women Scotland. They are also published with a collection of further links by Tribunal Tweets, who will be live-tweeting the hearing: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court 

Academics and practitioners

Dr Claire Methven O’Brien 

The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations? 

Dr Michael Foran  

UK Supreme Court to decide “What is a woman?”: A detailed look at the arguments

What is a woman? The Scottish Government’s case 

Can the meaning of “sex” in the Equality Act vary depending on context? 

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham 

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method – 

Scott Wortley

Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,

— Scott Wortley (@scottwortley.bsky.social) 2024-11-19T20:51:03.317Z

Organisations

Murray Blackburn Mackenzie

For Women Scotland vs the Scottish Ministers: making the arguments transparent – Murray Blackburn Mackenzie

Briefing note: For Women Scotland vs the Scottish Ministers, UK Supreme Court, 26-27 November 2024 – Murray Blackburn Mackenzie

Sex Matters

Sex Matters’ intervention to the Supreme Court 

What about the other side? 

We have appealed on Twitter for analysis arguing that the Scottish Government should win. We haven’t heard of much, but there are these links: 

FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.

— A Mere Solicitor (@ameresolicitor.bsky.social) 2024-11-22T18:33:35.561Z

Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.

— Robin Moira White (@robinmoirawhite.bsky.social) 2024-11-22T18:04:27.483Z

https://bsky.app/profile/concerned-person.bsky.social/post/3lbkkq7mbf22g

Defining ‘sex’ in the Equality Act

Sex and deception

I wrote last week about why it’s necessary to keep all men out of spaces that are supposed to be for women only. I ended, on the subject of women traumatised by male violence:  

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say  “You can have single-sex spaces, mostly.  Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.” 

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

I had put a hypothetical scenario of this kind when I was cross-examining a member of Edinburgh Rape Crisis Centre’s board in Adams v ERCC last January. The witness agreed agreed that this was perfectly plausible: 


A Muslim woman who does not have mother tongue English, who is a rape survivor, makes an appointment to see a support worker and she is assigned to Mridul. She is told all the support workers are women and she may presently find herself alone in a room talking about her sexual trauma to Mridul Wadhwa.

The witness gave clear, definite evidence that although she believed that it was Wadhwa’s practice to disclose at the first interview with a service user that he was a “trans woman”, so far as the ERCC board was concerned, he had no obligation to do so. It was perfectly legitimate for him to counsel a rape victim over a number of sessions without disclosing his true sex. 

The point of my question was to demonstrate to the tribunal that the version of gender identity theory to which ERCC was signed up was so extreme that its witnesses would see nothing wrong with this situation if it should arise. The witness obliged.

At the time that I put that question, I had no reason to believe that anything like this had ever actually happened in a rape crisis centre in the UK. Shockingly, I know better now.

Since the hearing in Adams, I have had disclosed to me the testimony of a woman who sought counselling at a rape crisis centre. She was given one to one counselling with a counsellor who presented as female and referred to himself as a woman. The service-user continued to believe that her counsellor was a woman throughout all her counselling sessions until the last. In the last few minutes of the final session, the counsellor referred to himself as a “trans woman”. The service-user understood only then that she had over a series of sessions over several weeks been meeting a man, one to one in a private room, and confiding in him about her sexual trauma.

I am not a journalist, and I cannot independently verify this story.  But I find it wholly credible, particularly in light of the evidence that was given in Adams, and I have no reason to doubt that it is true. 

Discrimination law and the experimental method

I want to apply yesterday’s dazzling insight that peanuts have to be left out of peanut-free meals to the words of the Equality Act and the specific question before the Supreme Court in For Women Scotland v Scottish Ministers, to be heard later this month. This is another fairly short point, though a little more technical than yesterday’s. 

Broadly, the job of the EqA is to prohibit discrimination because of the various protected characteristics. But there are exceptions, so that it remains lawful for director of a play to insist that Juliet is played by a girl and Romeo by a boy, or for a charity to define its beneficiaries by reference to race, national origin or sexual orientation. 

Paragraphs 26 and 27 of schedule 3 make it lawful to provide separate-sex services, and single-sex services, in situations engaging considerations like bodily privacy and dignity. They are expressed in general terms: what’s permitted is providing “single-sex” services or “separate services for persons of each sex”. Obviously that means excluding persons of the other sex. And the exclusion can only be a blanket rule, or the service can’t truthfully be described as separate or single-sex, just as you can’t describe a meal as “peanut free” if you sometimes put peanuts in it. 

That much is straightforward, or ought to be. (There is in fact plenty of dissent to it out there, some of it undeniably heavyweight. Nevertheless, I think the law is clear.)

The question for the Supreme Court in FWS is whether the protected characteristic of sex in the EqA — whether someone is regarded as a man or a woman — is affected by section 9(1) of the GRA, so that a man with a gender recognition certificate declaring him to be a woman counts as a woman for the purposes of discrimination law. In other words, whether “sex” in the EqA just means sex; or whether it means sex except for people with GRCs, in which case it means the sex they are deemed to be because of their GRI. We can call these two possibilities “sex” and “certificated sex” for short. 

The answer to this question determines what kind of discrimination a man with a GRC declaring him to be a woman is subjected to if he is excluded from a women-only service. 

The law has developed a thought experiment, complete with imaginary “experimental control”, as the way of finding out whether someone has suffered discrimination for a particular reason. You don’t have to be a scientist to use experimental controls: we all do it pretty intuitively. 

Suppose your desk lamp isn’t working. Is it the bulb? Is the socket it’s plugged into live? Is it the fuse in the plug? Is the switch in the “on” position? You  find out which is the culprit by trying different things one by one. You change the bulb, keeping everything else the same. Does it light? If so, the problem was the bulb. If not, you put the old bulb back, and try the switch in the other position. Still no light? Switch the switch back, and plug the lamp into a socket you know is live. 

Similarly, if Chris is refused entry to the women’s changing room on account of his obviously male appearance, is that because of his sex? The common sense answer is “yes”. But a GRC transcends (or confounds) common sense: if it operates in the context of the EqA, what matters is Chris’s certificated sex, not his actualy sex, so it tells us that Chris is a woman. To find out whether Chris has been excluded because of his sex, we have to compare him with someone who is of the opposite sex, and ask whether that person would have been excluded, too. 

So, obedient to the pretence required of us by Chris’s GRC, we set to work constructing a comparator. We say “Chris is a woman, so a person of the opposite sex is a man, let’s call him Christopher. This is a women-only space, so Christopher would have been excluded just like Chris. So Chris wasn’t excluded because of his (deemed female) sex, because a person of the opposite sex would also have been excluded.” (In truth, the chances are no-one will ever do anything to Chris because of his “female” sex, because it’s almost certainly obvious that he’s a bloke.)

If we run the same thought experiment on the different PC of gender reassignment, we get a different answer. The law tells us that Chris is a woman (even while our senses tell us different). Chris is a woman with the PC of gender reassignment: although legally a woman, he is a woman not by physiology, but by legal deeming. Obviously a woman without the PC of gender reassignment — that is, an actual female woman — would not have been excluded. So we have our answer: the reason Chris has been excluded is because of his PC of gender reassignment, not his sex. 

That means that excluding Chris can’t be justified under ¶26 or 27 of schedule 3, because those operate to permit sex discrimiation. But it may still be lawful to exclude Chris, because ¶28 of schedule 3 provides that it’s not unlawful to discriminate on grounds of gender reassignment in relation to the provision of single or separate-sex services, provided “the conduct in question is a proportionate means of achieving a legitimate aim”. 

Remember, all this reasoning is proceeding on the assumption that that a GRC changes Chris’s sex for the purposes of the EqA. The weird thing about ¶28, on this assumption, is that it seems to say you have to work out whether the thing you did — excluding Chris — was a proportionate means of achieving a legitimate aim. But it’s always going to be — because, well, peanuts. If the space or service is single-sex, you can’t let a man in (even a man with a certificate), or in every sense that matters it’s no longer a single-sex space. A legal fiction can deem a man married to another man to be in a heterosexual marriage, or deem him to be female for pension purposes, etc, but  it doesn’t actually change the reality or the real consequences of a male body (or even the real consequences of the theoretical possibility of a male body). It won’t affect the trauma reaction of the already-traumatised female user of that space, or the justifiable outrage and affront of the non-traumatised woman who looks up when taking her knickers off to meet the eye of a man in a space she was told was for women only. The fact that the man in question has a secret certificate at home in a drawer won’t — even if somehow she knows about it — make her feel any less embarrassed, angry or alarmed. 

So ¶28 seems to call for  “case by case” decision-making in a situation in which only a blanket rule will do. I explored the practical impossibility of that here: https://www.legalfeminist.org.uk/2022/02/16/admission-to-women-only-spaces-and-case-by-case-assessment/. 

There are a lot of reasons why the Supreme Court should find for FWS, and this is only a relatively small one. But I think it’s pleasingly neat. 

The reason I say that is that the “certificated sex” assumption leads you into this weird, artificial, counter-factual reasoning about when you can and can’t exclude Chris — and you end up apparently having to make a case-by-case assessment of something that can only be satisfactorily dealt with by way of a general rule, precisely because the “single-sexness” of the space is about what you tell the female users of the space, and whether they can trust you. It’s not really about Chris and his individual characteristics at all. 

But as soon as you remove the GRA spanner from the works of the EqA, this bit of the machine starts running smoothly and rationally. 

On that assumption — that s.9(1) of the GRA doesn’t affect the EqA — this bit of the law can recognise Chris as the man he looks like, and is. He’s excluded because of his sex, which for these purposes remains male. And that’s lawful under ¶26 or 27 if it’s lawful to run a single-sex space at all. 

So what’s ¶28 for, on this hypothesis? Good question! I’m glad you asked it, because the answer is elegant and satisfying. The point of ¶28 is to make it lawful, where appropriate, to exclude not men, but some women from the space, because of their PC of gender reassignment. 

Mostly, women who say they are men (“trans men”) will be perfectly welcome in women-only spaces. That’s because they are women, with female bodies. Their presence won’t affront, humiliate or alarm anyone, and they are likely to have the same needs as any other woman. 

But some “trans men” have taken extreme steps to look like men. Women who do this can often do it quite successfully, for precisely the same reason that men who say they are women almost always remain very visibly male. The reason is testosterone. Testosterone is a powerful drug, and a one-way ticket. A man who has gone through male puberty will almost never be able to disguise its effects successfully in later life. But when a woman takes testosterone, she’s likely to acquire a much more male-looking physique, a broken male-sounding voice, facial hair and male-pattern baldness. So some women with the PC of gender reassignment really do look and sound pretty much like men, and there will be circumstances in which it is genuinely necessary to exclude them from women-only spaces for the sake of the other women in them. 

Obviously, this is a fact-sensitive judgement which will depend on the particular nature of the space or service, who else is likely to be using it, how it is organised, and how convincingly masculine is the appearance of the trans-identifying woman in question. In other words, it calls for precisely the kind of “case by case” decision-making that ¶28 seems to envisage. The difference is that on this hypothesis — that “sex” in the EqA simply means “sex” —“case by case” makes perfect sense.

Sex, peanuts and statutory interpretation

There’s an aspect of the FWS case (For Women Scotland v Scottish Ministers) due to be heard later this month in the Supreme Court that is so childishly simple that one worries that the cleverest judges in the land may be too clever for it. This isn’t  about the legal arguments that the Court will have to grapple with. It won’t win the case: dry, technical arguments about statutory interpretation are what will determine the outcome. But statutory interpretation should be done on a foundation of reality and logic. 

The point is this. Single-sex spaces for women can’t have men in them, because if they do, they’re not single-sex. 

I told you it was simple. It’s like the “no peanuts” rule for a peanut-free dish. If you label a dish “peanut free”, you have to leave the peanuts out. All of them. The fact that lots of people like peanuts is no answer. Peanut-free dishes aren’t about those people: they’re about the people who may go into anaphylactic shock and die if they eat a peanut. It doesn’t matter if the peanut has been mashed to a paste, moulded into the shape of a walnut and scented with walnut oil, so that no-one looking at it, smelling it or eating it would dream that it might be a peanut. It doesn’t matter if it’s got a special certificate that says that for legal purposes it’s a walnut. It still needs to be left out of the peanut-free dish, or the peanut-free dish ain’t peanut-free. 

I have reason for my worry. It may be a simple point, but it’s one that the House of Lords managed to miss in Chief Constable of West Yorkshire Police v A [2005] 1 AC 51. This is a pre-GRA case, so of tangential relevance at best to what the Supreme Court has to decide later this month, but it’s a troubling precedent all the same.  Lord Bingham said: 

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search. 

This is essentially the “case by case” approach to deciding whether or not a particular man should be permitted to use women’s facilities. It still has proponents. “Oh, but surely this particular man — this man who has wished with all his heart that he was female since early childhood, who has “lived as” a woman for decades now, who has had all the hormonal, surgical and cosmetic  treatment money can buy to look as much like a woman as possible — surely no-one would be so heartless as to exclude him?”  

This is coming at the problem from the wrong angle. It’s not about the man who wants to be treated as a woman or his wants or needs: it’s about the truthfulness and trustworthiness of the sign on the door that says “women only”. Because the female users of that space need to be able to be sure that there will be no men there: not even men who look very like women. Especially not men who look very like women. 

Think about that for a moment, this idea of a man who is “visually and for all practical purposes indistinguishable” from a woman. Lots of women have suffered male violence, and some of those are permanently traumatised to the point that if they are surprised by a man in a supposedly female-only space, they will be retraumatised. These women may need domestic violence shelters and rape crisis services at certain times, but they don’t engage with the world solely as rape or domestic violence survivors. They have ordinary lives, too. They use public toilets, hospitals, gyms; they visit pubs, galleries, cafés, museums, theatres. They don’t wear a special badge or uniform so that we can identify them and make sure we cater for their needs. We don’t know who they are. 

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say  “You can have single-sex spaces, mostly.  Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.” 

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

10 easy steps to the perfect authorities bundle

Getting everyone’s markings onto one copy of the authorities bundle can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. Here’s how to do it smoothly.

Getting an authorities bundle agreed and finalised for the Court of Appeal can be a stressy pain. 

Agreeing a list of authorities and compiling PDF and hard copies of the bundle isn’t too bad. A lot of the guidance in 10 easy steps to creating the perfect hearing bundle  is relevant to the practicalities of things like shuffling the authorities into date order, producing an index and making sure the pagination and page labels line up. The bit that can be tiresome is getting everyone’s sidelining marking the passages on which they rely onto the same PDF copy of the bundle before it is printed and delivered to the court. 

One way (perhaps the usual way) of doing this is to send the PDF authorities bundle round all the different parties in turn, for each of them to add their sidelining one by one. If the bundle is in several volumes, it’s likely to be quicker if the different volumes take different routes round the parties — so that, say, A can be marking up volume 1 while B is marking up volume 2 and C is marking up volume 3. And then everyone swaps round, and hopefully you end up with everyone’s markings on each volume.

I suppose in theory it could all go like clockwork. But if someone is slow, or the PDFs circulate for some reason in an unexpected order, or someone doesn’t read the instructions carefully enough and annotates the wrong volume at the wrong moment, it can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. 

If this description brings you out in a clammy sweat of remembered stress, I am your bundle fairy, and I am here to make your life better next time. 

  1. Start with a folder, in OneDrive or some other location you can easily share with the other parties. Call it “joint authorities bundle” or something of the kind. Save in it court-ready PDFs of all the authorities you rely on, each one named with its full citation, prefixed with its year (or year and month, if you have a cluster of authorities from a single year), eg “2015 BBC v Roden [2015] ICR 985.pdf”. (Prefixing the names with the year and including the full citation is to force sorting in date order, and to make it easy to extract a draft index from the file list: see further 10 easy steps.)
  2. Add sidelining to the PDFs to mark the passages you rely on as you go along. 
  3. Share  your folder with the other parties. Ask them to add any authorities they rely on that aren’t already on your list, named in the same way, and sidelined for the passages they rely  on.
  4. Read the guidance at paragraph 29 of Practice Direction 52C.
  5. Bin most of your authorities. 
  6. Once your collection is complete (and pruned as necessary) merge the reports, ready-sidelined, into a single PDF and add an index page.
  7. Sort out page labels and pagination, and hyperlink the index to the first page of each report.  Again, you can adapt the instructions from 10 easy steps for this: the principle’s the same. The individual authorities are now clutter, so move them out of your shared folder (though probably not to the bin, just in case of mishap). 
  8. Check whether you want to sideline any passages from the authorities contributed by the other parties, and do so if you want to.
  9. Invite the other parties to do the same with yours, and each other’s. Unfortunately (anyway in OneDrive – I haven’t tried alternatives) you can’t actually all do this at the same time without using snazzy collaboration tools, but if everyone’s marked up their own authorities before putting them in the shared folder, there probably won’t be very much more to do at this stage. If it’s at all complicated, I’d suggest sharing a schedule of time slots, asking everyone to mark the window within which they plan to do any further sidelining, and then stick to those times. 
  10. Once everyone’s added any further sidelining, you’re done.