Men in women’s facilities at work – what are your rights?

This problem remains widespread. Many employers — at a guess the great majority — still think that if a man says he’s a woman, it’s against the law to refuse to let him use the women’s toilets, changing rooms etc.

They’re wrong. If a man says he’s a woman, he has the protected characteristic of gender reassignment, and he’s entitled not to suffer discrimination or harassment because of that. But if he’s told he’s not allowed to use women’s facilities, that’s not because of his gender reassignment: it’s because of his sex. If employers are allowed to provide single-sex facilities at all (and I’m not aware of anyone ever having suggested they’re not), they’re allowed to exclude all men from them, including any men who say they are women. There is no plausible basis on which such a man could argue that he had suffered unlawful discrimination by being excluded from women-only facilities.

But if you’re a woman and you find a man using supposedly female-only facilities at work, it doesn’t help you hugely to know that your employer is wrong in its belief that it has to let him do so. What can you do?

Your legal rights

As an employee, you have a right not to suffer indirect discrimination because of your sex, or harassment related to your sex. In letting a man (or men) use the women’s facilities in your workplace, your employer is almost certainly subjecting you to both of those kinds of legal wrong.

How can you persuade your employer to respect your rights?

This should be what your union is for, but I can hear your hollow laugh from here. Maybe somewhere out there there is a trade union that thinks women’s rights to everyday privacy and dignity (not to mention safety) are as important as the preference of men who think they are women not to be faced with the reality that there are other people who don’t agree, and is vigorously defending its female members rights. I have yet to hear of this happening.

Many women who reject gender identity theory have either left their unions in disgust at their attitudes to women’s rights, or decided not to bother joining one. Some have joined the Free Speech Union instead, which has helped a number of employees with cases of this nature already (David Toschak’s case is the most recent example), and is definitely worth considering.

All the same: if you are a member of a trade union, this is what it is for. So I’m inclined to say you should proceed on the assumption that it will do its job properly, and approach local officials for help. You may get lucky.

If you’re not a member of a union or the FSU, or your union won’t help, you’ll be on your own with your employer’s grievance process and ultimately, if you feel strongly enough, a complaint to an employment tribunal. If you can get a group of colleagues together to present grievance together, so much the better.

Think about your risk appetite

Before you take any of those steps, think hard about what you’re prepared (and can afford) to risk. Being known to dissent from gender identity theory (or to be “gender critical”) is enough in itself to attract the attention of bullies in many workplaces. Taking positive steps to assert your right to female-only spaces at work may make you unpopular with colleagues and/or managers, and if you object even in the politest possible terms to your employer’s policies, you may be marked out as a trouble-maker. Even if your initial plan is to raise a grievance but take matters no further if the grievance fails, things can escalate. If you end up being bullied because of your grievance, or because you’ve “outed” yourself as “gender-critical”, you may find yourself locked into a dispute with your employer in which you are effectively forced into litigation as the only effective way of defending yourself.

Litigation itself is always a pretty nuclear option. It won’t endear you to your employer, and it may well damage your prospects of promotion, or passing your probationary period, or a renewal of your fixed-term contract, or surviving the next redundancy exercise. Punishing you in those kinds of ways for enforcing your rights in the employment tribunal is also a legal wrong, of course, but proving that that is what has happened to you is unlikely to be straightforward. Like most employment lawyers, I routinely remind my clients that for most people, most of the time, a job is a better thing to have than even the most cast-iron employment tribunal claim; and few employment tribunal claims are cast-iron.

I hate saying this, because what it boils down to is that sometimes, for self-preservation, people have to let bullies win. But if losing your job would spell financial disaster for you, you may have little real choice but to leave these battles for others to fight.

Raise a grievance

If you’ve thought through the risks and you’re prepared to take them, read your employer’s grievance process and follow it. Document everything. If you have a meeting or a call with someone, drop them a polite email straight after setting out your understanding of what passed between you. Take notes during calls or meetings and file them away. Sex Matters has good advice and helpful precedents and factsheets here. 

However furious you feel, keep all your communications calm and as concise as possible. Never, ever hit send on an email while your pulse rate is still raised. 

I’m going to labour this point, because the combination of sanctimoniousness and gas-lighting with which women who raise these matters are often met is infuriating, so unless you’re an actual saint, you are likely to get very cross. At the same time, losing your temper may give your employer or your bullies the excuse to mistreat you that they most want. So try to make a game of combining persistence with a reasonable, unruffleable manner. It’s easier to stay calm in the face of provocation if you’ve seen the provocation coming and planned for it.

But also, hold your nerve. The time to decide the level of your risk appetite is before you take the first step. If you have decided to tackle this with your employer, do so calmly and politely, but not half-heartedly or apologetically. Bullies feed on fear, so even if you’re quaking inside, try not to let it show. There is nothing even arguably unreasonable about standing on your right not to find men in women-only spaces.

In particular, make a decision in advance about what you will do if you actually encounter a man in supposedly women-only facilities. It seems to me there are three options:

  • Challenge him.
  • Leave.
  • Pretend not to notice.

Each of these options has its risks and drawbacks. If you decide to challenge the intruder, do so politely and calmly. Don’t be drawn into an argument, and don’t elaborate on the reasons why you object to his presence: just tell him that you don’t think he should be using the women’s facilities, because he’s not a woman. Even so, he may well complain that you have harassed him, so be ready for that. Write down your own account of the encounter as soon as you can.

Even if you just leave on finding a male intruder in a women-only space, there’s a risk that he will complain that by doing so, you have made it obvious that you don’t see him as a woman, and thereby harassed him. So if this is your choice, leave without any outward display of irritation or affront; and again, make a note of the encounter as soon as you can.

In either case, if you are accused of harassing a male colleague for objecting to his presence in supposedly women-only facilities, that will be various kinds of legal wrong, but most obviously discrimination because of your protected sex realist/gender-critical belief. The main point of keeping your cool is to deprive your employer of what I’ve taken to calling the Bananarama defence: “It’s not what you said, it’s the way that you said it.”

Pretending not to notice is the safest option from the point of view of accusations of harassment, but it has the down-side that if you end up in an employment tribunal, it may be said that the fact that you continued to use the facilities meant you didn’t really mind. So make notes of any encounter, including how it made you feel and why you decided to keep your head down.

Complain to an employment tribunal

If your grievance doesn’t have the result that your male colleagues are told to stop using the women’s facilities, the obvious next step is an employment tribunal claim. There are strict time limits for these. Before you’re allowed to bring an employment tribunal claim, you have to go through a process called “early conciliation” with ACAS), and you must start that by notifying ACAS of your complaint within 3 months less one day of the act complained of. If you’re complaining about a policy that is still in place and still having consequences for you, this is unlikely to give you any difficulty; but if for any reason it stops having practical consequences for you, make sure you notify ACAS within 3 months of the last time it did. ACAS will send you a certificate once early conciliation is finished, and then you can present your claim to the employment.

How can I afford to litigate?

Legal fees mount up fast. Unless you’re on the kind of income that means you can buy a flash sports car without breaking sweat, you can’t afford to instruct lawyers to act for you in an employment tribunal claim out of your own resources. I can think of the following options, some of which you can try at different times in the same case, or in combination with each other:

  • Trade union assistance: if you’re lucky enough to be a member of a trade union that takes its female members’ rights seriously, they may provide you with legal advice and representation.
  • If you’re a member of the Free Speech Union, they may back your case.
  • You may have legal expenses insurance tucked away in your household insurance policy, or your car insurance, or insurance attached to a credit card, etc, so read the small print of all these things.
  • Apply to the JK Rowling Women’s Fund. This is a wonderfully generous and practical initiative, but it’s inundated with requests. So do apply, but don’t assume you’ll get help from it in time to start a claim, and don’t miss deadlines while you are waiting to hear.
  • Run the case yourself. You don’t have to pay a fee to bring a claim in the employment tribunal, and tribunals are supposed to be informal and accessible to non-lawyers. The truth is, they’re pretty daunting for non-lawyers, so if this turns out to be your only option for enforcing your rights, do think hard about whether you can cope with the work and the stress. If you’re thinking seriously about this option, I’d suggest getting hold of a copy of ET Claims: tactics and precedents: the 4th edition was published in 2013, so it’s getting a bit long in the tooth now, but it’s mostly not the kind of material that goes out of date very fast. (Authors’ royalties go to the excellent Free Representation Unit.) 

Men in women’s facilities at work – what are your rights?

THREE QUESTIONS

What is the government up to regarding the Supreme Court’s judgment in For Women Scotland (2)? A question which breaks down into three.

  1. Does the government really accept the Supreme Court’s judgment?
  2. If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court.
  3. Who is responsible for giving the instructions to the government’s lawyers?

Acceptance

On the first, the government has certainly said so, on a number of occasions. Most recently, the Prime Minister said in Prime Minister’s Questions in response to Rebecca Paul MP that “the Supreme Court ruling must be implemented in full and at all levels” (see here). A clear statement? Apparently. But it begs the question as to what the government understands the Supreme Court ruling to mean. (Misunderstanding of the applicable law and previous judgments  – whether in error or deliberate – has been endemic on this topic.) The judgment itself was clear: it was accepted by all parties before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.

The government asked the EHRC to draft appropriate practical guidance, which it has done. There is a current issue about why the responsible Minister has not laid that draft Code of Practice before Parliament, which has been discussed by LegalFeminist here. But regardless of what that guidance says, the law is clear (guidance cannot change it) and, as the Prime Minister (and other Ministers) have said since April 16, the law (in place for 15 years, it’s worth remembering) must be implemented, as some organisations have already done (including the Labour party itself which has changed its internal rules relating to female only posts to limit these to women, excluding men who choose to identify as women).

Argument

The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. This is not unusual. It is there to provide clarification on the government’s position and to assist the court.

But that is not what leading counsel for the government is doing. The KC is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to the government’s counsel that the argument is “trying to rewrite FWS”. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. These are not the arguments of a neutral party. They are arguments which the GLP could and are making.

Why is the government doing so? What it is doing is inconsistent with what government Ministers have told Parliament. Who is being misled? Parliament? Or the courts? Both are serious matters.

Responsibility

This brings us to the third question. Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? And why? Formally, it is the Minister for Women and Equalities (Ms Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment.

Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way? Or is it what might be termed the permafrost layer of management (whether in the civil service or the legal function) who are determined to frustrate the judgment or make it unclear or confusing, either because of their own personal position or ideological views or simply because they do not like it?  None of these considerations should play any part in the advice to Ministers or indeed in Ministers’ actions. Are they doing so here? 

This topic has been bedevilled by a continuing serious concern: the extent to which government (and other public bodies) have allowed a gross conflict of interest to arise, through their embrace of Stonewall “advice” (Stonewall are not lawyers) and membership of its schemes, and to continue, to the detriment of civil service duties of impartiality and professionalism. These conflicts of interest are a serious breach of the Nolan Principles and have already led to one judgment against the police in Lindsay Smith v The Chief Constable of Northumbria Police in July this year for breaches of its duty of impartiality. LegalFeminist has commented here on the serious conflicts of interest which arise from association with one issue lobby groups such as Stonewall. 

Now we have government Ministers saying one thing to Parliament and government lawyers saying something inconsistent to the courts. This is unacceptable. Ministers need to clarify this – and without delay. The public and the courts deserve nothing less. 

Cracking the Code

The Times has reported that “it has emerged” that ministers have demanded a regulatory impact assessment of the EHRC’s draft Code of Practice before it can be laid before parliament and brought into force. 

If this is right (the Times story is light on detail of how, exactly, it has emerged), it is extraordinary. 

Regulatory impact assessments are normally carried out in order to assess the effects of a proposed change in the law. The government should not need to be told that an EHRC Code of Practice does not change the law. Neither should it need to be told that a Supreme Court judgment on the meaning of a 15-year-old act of parliament does not change the law. In For Women Scotland v Scottish Ministers, the Supreme Court has authoritatively interpreted the Equality Act 2010; that means it has told us what the Act meant ever since 2010.

The EHRC has power under section 14 of the Equality Act 2006 to issue codes of practice “to ensure or facilitate compliance with the Equality Act 2010 or an enactment made under that Act” or “to promote equality of opportunity”. 

That’s a power, not a duty. The EHRC doesn’t have to issue a code of practice, but it may do so. A code of practice is admissible in evidence in criminal or civil proceedings and must be taken into account by a court or tribunal “in any case in which it appears to the court or tribunal to be relevant,” but it does not itself have the force of law. If the court or tribunal considers that a code of practice gives misleading or erroneous guidance, it must decide the case in accordance with the law, not in accordance with the code of practice. 

A code of practice that is demonstrably erroneous (as the EHRC’s 2011 Code, which the current draft is intended to replace) is worse than useless: it’s still admissible in legal proceedings, and courts and tribunals have a duty to take it into account so far as relevant, but they are bound by the Supreme Court judgment. So the defunct Code of Practice will continue to rattle around confusing people — or in some cases providing them with the excuse they want to continue to act in defiance of the law. But every time a claim actually comes to court, the judge will still have to follow the law as set out by the Supreme Court. 

Various conclusions follow:

  1. There’s no point in a regulatory impact assessment of the draft Code currently with the Minister, because the job of the code of practice is not to change, but simply to explain the law. 
  2. It would be helpful for businesses and institutions if the equalities regulator were permitted to publish a code of practice to help them understand their duties under the law, but it’s not essential. The law is already as stated by the Supreme Court, and the judgment is written in clear language. 
  3. “We’re waiting for the new code of practice” will never be an effective excuse for failing to comply with the law. 
  4. The government should revoke the 2011 Code of Practice on Services, Public Functions and Associations at once. Only the government can do this. It is irresponsible and irrational not to do it. 

None of this is difficult or arcane. The Government has access to teams of lawyers who understand it all perfectly well. And commentators are already starting to wonder how to hold government accountable, eyeing provisions like s.112 of the EqA 2010 on “aiding contraventions” and speculating about judicial review of the failure to lay the new code before parliament and/or the failure to revoke the old code. 

So what are they playing at? 

The proposed regulatory impact assessment looks remarkably like an act of simple cowardice. The government knows that a code of practice doesn’t make or change the law, but only explains it. It knows that this is not what regulatory impact assessment is for. It knows that many employers and institutions are currently delaying complying with the law until the new code is issued. It knows that many thousands of individuals are suffering ongoing legal wrongs because of the ongoing delay. It knows that a proportion of those will continue to bring claims, and the courts and tribunals will clog up with cases, and public authorities and private employers will continue to pour legal fees into defending them. 

But it also knows that the new code of practice will be unpopular with many of its supporters. It is seizing on the idea of a regulatory impact assessment to delay the inevitable; and to redirect the fury of its activists to the courts and tribunals, and to the brave individuals who will have to go to court at great personal cost, often one by one, sometimes in groups like the Darlington nurses, to enforce their rights. It’s a craven exercise in blame-shifting. 

This is not what leadership looks like. 

Ciara Watkin: Where did the deception start?

When I first saw the photographs of Ciara Watkin (CW), a trans identified man, taken during his sexual assault trial at Teesside Crown Court, I wondered how anyone gifted with sight could mistake him for a woman. The heart of the case against him was that he had obtained consent to sexual activity by a  deception as to his sex. In other words, he had led his victim (V) to believe that he was female. 

It seemed absurd. In the press photos, CW wore false eyelashes and women’s clothing, but he also had visible stubble, a typically male browbone and jaw and, in profile, it was clear that he has a penis.

Understandably, his defence relied on the fact that he was so observably male that V’s assertion of being deceived must have been untrue; perhaps shame, embarrassment, regret, internalised homophobia, or a combination of these factors moved V to close his eyes to the obvious. 

I had the advantage of attending the trial during the judge’s summing up of the evidence. It was as thought-provoking as it was illuminating. 

The Evidence

The sexual assaults took place when both CW and the victim were 17, four years before the trial. 

The two met on snapchat, where CW presented as a girl. 

When they met up and sexual activity started, CW told the victim that he was menstruating at the time, which V accepted as a reason for CW’s refusal to let V touch his chest, thighs or groin area. 

They met a second time at V’s home. At trial, V’s mother explained that she suspected that CW was a boy but said nothing at the time to V. At some point, some of V’s friends unexpectedly arrived. They were less circumspect than his mother and, with the kind of tact we readily associate with teenaged boys, mocked V about this “girl” being a boy. Still V continued to accept CW’s deception. 

CW’s mother told CW that it was not fair to lead V on, and that she thought he should tell V that he was trans.

At some point CW blocked contact from V, but a little later messaged him to disclose that he (CW) was trans. V’s mother saw her son’s reaction to this communication, which was one of shock and incredulity. V later described how painful and difficult the news was, because he “doesn’t swing that way”. 

It was not V who went initially to the police; it was a staff member at his school.

In his police interview, CW admitted deliberately deceiving V into believing he was female and accepted that he did so because he didn’t think V would be interested in him if he had disclosed that he was male.

How did it happen?

So how earth did CW fool V? Isn’t there something questionable about V’s claim that he didn’t know?

The jury clearly accepted that he had been deceived, and CW did too. It also seems that their respective mothers and V’s friends also saw that he had been deceived. 

Evidence of a complainant’s sexual history in such cases is treated as inadmissible unless it can be shown to meet stringent legal criteria as to its relevance to the case. I am not aware of any evidence about V’s sexual experience, save for the judge’s comment that he was “naïve”. 

The physical maturation that takes place between the ages of 17 and 21 can be very significant indeed. There are no publicly available photos of CW at the time, at least none which haven’t been very heavily filtered, so it is not safe to assume that unfiltered pictures of him now reflect his unfiltered appearance at the time. 

Psychological maturation and the impact of life experience are no less significant. It is not fair or accurate to ask a jury to use the map of two 21 year olds to navigate the territory of two 17 year olds. 

I think it is also important to bear in mind the possibility that a flirtatious or sexually charged exchange (between inexperienced adolescents) can create a powerful cognitive bias, effectively priming the victim of a deception to continue to accept the deception. Crudely put, we see what we are looking to see, and so it is not implausible to me that V went to meet a girl he fancied and, the exchanges with the girl he fancied firmly imprinted on his mind, perceived the person he met as precisely that. 

Much of the reporting of this case has been sensationalist, trading heavily on a “WTF?” reaction to the unfiltered, contemporary photos of CW. I’m not suggesting that the press shouldn’t be able to report the case in that way, but I think it must be agonising for the victim. The entire country was invited to laugh at him for his credulity, almost as if he was to blame for an experience that has left him not knowing who he is.

Our freedom to choose the sex of our partner, on each occasion, is integral to our sexual autonomy. Sexual orientation is not, in my view, susceptible to analysis which diagnoses it as transphobic, homophobic or suffering from any other moral, political, or religious failing. To argue otherwise is vain in every sense and quite disconnected from reality. Similarly, any argument that no harm has been done if a deceived person is brought by the act to orgasm (or some other discernible degree of sexual pleasure) is a callous disaggregation of what sex can mean for the human beings involved.

In R v McNally (Justine) [2013] EWCA Crim 1051, the Court of Appeal said that there was a “common sense” difference between a sexual act performed by a man and the same sexual act performed by a woman. That difference, the Court concluded, was fundamental enough to change “the sexual nature of the act”. In this case, as in the case of McNally, the victim could not properly be said to have consented to the act. The victim consented to something quite different and so did not consent at all. 

What of Ciara Watkin?

Some may be surprised at the extent of my sympathy for Ciara Watkin. He has been held responsible for committing a number of very serious offences; he must be, because the legal responsibility begins and ends with him.

But I do not think that the wider responsibility does.  

Language used by trans activists and widely disseminated by Stonewall contrives to give the impression that, when a person identifies as trans, a right of secrecy about his or her sex is now conferred on that person. This, in the hallucination of Stonewall Law, is an absolute right and is enforceable against the whole world. In effect, no one is entitled to know the truth, still less entitled to say it.

Young people of CW’s age have been schooled in the language of “misgendering” and “deadnaming” and told that speaking accurately about someone’s sex and previous name is a source of “harm”. 

I looked at the reporting of this case by Pink News. Pink News is an online publication devoted to advancing the expansion of trans rights, a devotion seemingly rooted in the conviction that trans identified people are the most oppressed minority on the planet.

The comments were mixed, and more interesting than the article. No one was particularly condemnatory of CW; the harshest comment was that his conduct could not be condoned, and that the best policy was always disclosure. One person commented that you shouldn’t be dating if you weren’t prepared to be honest. Others believed that there was nothing wrong with what he had done, and that he was entitled to his privacy. One person opined that since the For Women Scotland judgment only related to the Equality Act, it was unfair that it was applied in criminal law. Others believed that this was a part of a growing trend of bigotry in the law, and that the victim should have been punished for his transphobia. These beliefs are one thing, but what struck me was the ignorance of the criminal law as it applies in this area. The class of deceptions which are capable of invalidating sexual consent is very narrow indeed, but the case of McNally established that it certainly includes sex. However much a person may want to be, or even imagine themselves to be, the other sex, however much a person wishes to ignore their sex, or is deeply distressed by the fact of their sex, there is no legal entitlement to deceive a sexual partner about it. 

People who, for whatever reason, present in a way which conceals their sex should surely be protected from misinformation about where the legal boundaries lie. If CW was never told that a deliberate deception as to his sex risked conviction for serious criminal offences, then it is hard to shake the feeling that we have allowed a deficit to accrue in how we educate a generation for whom successful sex-deception will be an increased risk. Those who have taken puberty blockers and cross-sex hormones will be far more likely to pass as the other sex than those who have not; this will not avail them of any legal protection if they do not disclose their sex to a partner. Indeed, the more successful a deception, and the more desired its success, the more culpable the deceiver is likely to be deemed. No one has the right to “go stealth” when it comes to sexual consent. When those who are in a position to educate decide to ignore, or promote confusion about, the law then it is most frequently going to be young, inexperienced people like CW and his victim who pay the price.  

Sarah Vine KC

Where Are Your Values Now?

Ever since the financial crisis, statements of values, mission statements and Codes of Conduct have proliferated like the most determined weed among pretty much every financial organisation. Changing the culture was the focus of regulators and senior management. What better way to start than to have a wonderful statement saying how well you would behave in future and how well you would treat anyone you dealt with, from your staff to a contractor working remotely thousands of miles away, customers, suppliers and so on.  Everyone would be embraced and treated well. If it all had a “kumbaya let’s teach the world to sing” flavour to it, even the most cynical, churlish observer would surely think this better than the sort of misconduct which had shredded the reputations and balance sheets of so many.

All of these documents contained much the same. Three items are always present: the need for “integrity” – often clarified as “doing the right thing”, “fairness” – which usually encompasses tolerance and no discrimination and a conflicts of interest policy – to help avoid the sorts of situations which might result in people doing the wrong thing. 

Let’s take one such example from NatWest. Its Code of Conduct says: “We act with integrity and take risk intelligently.” It talks about an environment “free from bullying, harassment and discrimination” (though it introduces a protected characteristic which does not exist in the Equality Act) and a “fair and inclusive environment where we all feel we belong”. It talks about “relentless curiosity” and “broad perspectives” and testing thinking on “people with different views”. It mentions its Conflict of Interest Policy and reminds people of the FCA requirement to “act with due skill, care and diligence”. On and on it goes with 13 pages of worthy sentiments and ambitions.

It’s not just the financial sector which has these. Pretty much every sector now has some sort of values statement and Code of Conduct. But for those in a highly regulated sector – such as finance, law, accountancy, the police – these statements are not just “nice to haves” but essential to showing that the entities, the professionals working in them, senior managers and the Boards of Directors fully understand and are taking steps to comply with their regulatory obligations, the law and their fiduciary and corporate responsibilities.

Now let’s look at the responses to the Supreme Court’s judgment in the For Woman Scotland (“FWS”) case. Some organisations have responded by expressing concern for trans employees; some have stated that they will continue with internal policies which are now not in compliance with the judgment i.e. the law. And others have signalled their determination to defy the law.

Is this wise? If your stated values are to act with integrity and comply with the law, stating that you will not do this because you do not like what a judgment says undermines and breaches whatever Codes of Conduct and values statements you have. It sends out a dreadful signal to your staff and others – that compliance with laws and rules is optional. There are plenty of bankers, traders, policemen and others – some of them in our prisons – who have taken this approach. Is this the message you want your staff (let alone others) to hear? Be in no doubt: some will hear this and some will act on it and you have just given them the green light to do so.

What about expressions of concern? What’s wrong with them? Well, context is everything and there are a number of things wrong or inadvisable. The judgment was about the rights of women and gay people, specifically lesbians. It expressly stated that trans people had not lost any rights. If your first reaction is to reassure people who have not lost any rights rather than say something to a much larger community whose rights were at risk and whose rights you may have prejudiced by your policies, you are signalling a curious set of priorities. Some might notice that you did not say anything when FWS lost twice in the courts below. Why not? Were the concerns of those affected not important? Did they not need support? How does this exemplify fairness or inclusivity? What message is it sending out to the women who work for you or are your customer, suppliers, contractors and so on? It suggests you believe in a hierarchy with one group’s rights considered more important than others when in fact the Equality Act creates no such thing

Two further points: risk assessment and conflicts of interest.

Legal risk is one of the risks that all organisations must take account of. The Supreme Court judgment did not come out of the blue. There were two decisions in the lower courts. There was an earlier FWS victory in 2022 which established that people without a GRC could not be considered members of the opposite sex. It was a Scottish decision but there was always an appreciable risk that it would be persuasive in an English court should the matter be litigated. There have been a large number of employment tribunal decisions raising issues around direct and indirect sex discrimination, harassment and protected beliefs since at least 2021. The risks of having policies in place which did not fully take into account a correct understanding of the law and the lessons to be learnt from those cases were ones which directors and managers had a legal and regulatory obligation to consider carefully. It is not at all apparent that they did so. Rather they seem to have delegated this to HR and/or outsourced this to external bodies. Again, was this wise? What steps were taken to ensure that HR was taking all the right factors into account? What steps were taken to ensure that legal advice was being taken from those expert in this area?

This takes us to one issue which has been overlooked: conflicts of interest. A Conflicts of Interest policy is essential in many sectors, particularly highly regulated ones. But it is applicable to every sector. A glaring and unaddressed conflict of interest, often more than one, is present in pretty much every scandal: whether in finance, the building sector, the NHS, the Post Office and many others. There are public inquiries and their reports which spell this out – time after time. 

But in the case of sex/gender, too often banks and others have sought advice from lobby groups with no legal expertise on how they should treat a particular minority. They have not done this for all minorities: religious groups, for instance. They have not asked hard questions about precisely what they were getting and why. Nor whether what they were being told was lawful. Nor whether it might affect others and whether such others should be consulted. Nor did they consider whether there might be a clash of interests and, if so, how this might be resolved. Nor did they notice that if they were paying a group such as Stonewall to approve their policies and place them high up in their index of approved employers, they were creating an obvious conflict of interest – one which they seemed not to notice or take any steps to mitigate. They did not ask themselves whether going “beyond the law” might possibly result in them breaking the law. It seems not to have occurred to anyone that doing what one single issue lobby group wants simply to get high up in its ratings is as bad – and as much of a conflict of interest – as stretching the rules to do what a high paying customer demands you do. They failed to apply their own policy to their own behaviour. There was, bluntly, a lack of “curiosity” and “due diligence” of a most elementary kind.

This is a corporate failure. It is a legal failure. It is a lack of due care, skill and diligence. And it is a failure of all of these – when a judgment comes out – not to take time and careful thought about what it says and means and how to implement it fully and fairly, having taken proper advice from those who really understand it – not those who seek to undermine or ignore it. This is basic stuff for any properly advised senior management team. It is one which has, unfortunately, too often been missing. Babies and toddlers have tantrums. Company Boards should not. It is high time company Boards and management at all levels took their responsibilities seriously, the most important of which is to comply with the law. Codes of Conduct are, after all, meant to be more than a bit of pretty PR.

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