Conversion therapy: the path to good law

This is the text of my talk at the Middle Temple LGBTQ+ Forum Inaugural Annual Dinner last night (unchanged apart from the addition of some links).

How do we arrive at good law making a new criminal offence? Robin says good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need:  

  • evidence of harm 
  • a convincing case that the harm is amenable to legislation
  • clear proposals 
  • open public debate 

Starting with the last: debate. 

The proposed ban is one aspect of what we can call the “gender wars” where there has been a strong pressure for “no debate”. Those who have tried have been  shouted down, no-platformed, compared to Nazis, and hounded out of their jobs. 

Debate informed by evidence is how we test ideas and proposals: if they’re any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. This idea underpins our whole profession. 

So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you Nancy – we need to have this conversation.

Evidence of harm 

The evidence-base for this proposal is thin. 

The government has made the proposal for law without waiting for Dr Hillary Cass to complete her independent review of gender identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University. 

The Coventry review admits that for the UK, it only found 2 studies relating to gay conversion therapy, and none on gender identity. 

The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it.  

But if you look at that survey itself, you find this killer line: 

We did not provide a definition of conversion therapy in the survey 

That means:  

  • We don’t know how many of those 2%  were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
  • We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers. 
  • We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans. 
  • We don’t even know the sex of the respondents, because the survey didn’t ask. 

We don’t have a clue what these responses mean: they’re not evidence of anything. 

The consultation admits that there’s no real evidence of harm. It says: 

While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.

In other words, the government is saying – we just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.

Case for legislation 

Even if there were evidence of harm, not every harm can be put right with legislation; sometimes the cure is worse than the disease. You’d hope a proposal for legislation would address cost and benefit. 

But this consultation doesn’t get to that point. Having failed entirely to identify a credibly-evidenced or even defined kind of harm that is its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try. 

Last element – clear proposal

The government’s core proposal  focuses on children and vulnerable adults, and criminalises a talking therapy delivered 

 with the intention of changing their sexual orientation or changing them to or from being transgender

This muddles two different things. 

Being gay or bisexual isn’t a medical condition. It doesn’t require treatment. We can all agree that practices that try to change people’s sexual orientation are wrong and futile. 

Gender dysphoria sufficiently severe to make you seek radical alterations to your healthy body undoubtedly is a medical condition. There are two clues. The word: dysphoria – profound unease or dissatisfaction. And the demand for medical treatment. 

Let’s run a thought experiment. Say you’re a therapist. You see an unhappy 10-year-old girl. She wears baggy clothes, and has short hair. She says she’s sure she’s a boy really. She hates her developing breasts, and dreads the onset of periods. She despises all things “girly.” 

Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you do that duty carefully and conscientiously. 

The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning, she’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.

Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility, and other complications. 

This is the most savage conversion therapy ever invented.

It’s homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Many of us here grew up in a profoundly homophobic society. Clause 28 was passed in 1988, when I was 22 and my elder brother was 23. My brother was gay. He killed himself on 13 January 1989. I believe that he died, in part, from the toxic effects of homophobia. Those problems of homophobic bullying haven’t gone away. There is  still work to be done, and this is Stonewall’s proper mission.

Conclusion: the Denton’s playbook 

In 2019, law firm Dentons and others published a guide to campaigning strategy for gender self ID. The report says:

In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.

Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20

That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection whose real purpose is to criminalise what should be routine  responsible therapeutic work. 

This is fundamentally dishonest. It is certainly not the path to good law. 

Legal Feminist responds to FCA consultations

Legal Feminist has responded both to the FCA consultation on diversity & inclusion in listed company boardrooms and to a joint Discussion Paper of the Bank of England, the Prudential Regulatory Authority and the FCA on diversity in the financial services sector. In both cases, while we applaud the intention behind the proposals, and are strong proponents of data-driven policy-making, we felt that the way in which those intentions were to be reflected in rules and policy rendered the proposals at best ineffective and at worst dangerous.

Remarkably, the FCA’s proposals on “gender” reporting failed to disclose relevant conflicts of interest (Stonewall) and made no reference to existing legislation that already requires many listed companies to report their board composition by sex (take a bow, drafters of section 414C(8) Companies Act 2006).

PDFs of our responses can be found at the end of this blog. Below is the Introduction and Executive Summary of our response to the FCA consultation.

Introduction
Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including company law, corporate finance, financial services, employment, data protection and privacy, discrimination and human rights law. Our range of specialisms enables us to consider holistically the issues raised in the Consultation Paper (CP) and our collective experience enables us to comment on the practical implications of some of those issues. As a non-aligned collective of lawyers from a range of backgrounds, we do not represent any particular firm or issuer and are therefore well-placed to give candid feedback on the issues raised by the CP.

We responded to Discussion Paper 21/2 published by the Prudential Regulatory Authority, the Bank of England and the Financial Conduct Authority (FCA). To the extent the DP and CP raise common issues, we may address those issues in the same terms.

As feminists, we generally welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support proposals that seek to gather data to support policy making, provided this is done carefully. However, we recognise that such initiatives engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.

As the FCA has no direct responsibility for D&I matters, we are concerned that it does not have access to the particular expertise in international employment, data protection and privacy or human rights law required for a full consideration of the issues raised by the CP. Regretfully, we have formed the view that the proposals outlined in the CP are flawed, perhaps fatally, in view of the difficulty of reconciling them with other laws and regulations in these specialist areas.

Past practice in relation to regulatory intervention in matters of Environmental, Social and Governance has tended towards entrenching rules or policies developed by groups with relevant expertise – for example in relation to the codification in the Listing Rules of recommendations of the Task Force on Climate-related Financial Disclosures. We recommend that the FCA consider appointing a working group, comprising stakeholders with a range of expertise and interests, to consider its proposals further. Members of the Legal Feminist collective would be glad to serve on such a working party.

A number of our concerns are relevant to more than one consultation question. Accordingly, we have framed our response as a general discussion of some of these issues, to which we then refer in answers to the specific consultation questions. We have also included an Executive Summary.

Executive summary

The potential consequences of the proposals in the CP include:

  • confusing disclosures in annual reports as a result of the FCA’s failure to take account of the existing mandatory disclosure regime in the Companies Act 2006
  • poor response rate and/or non-standardised disclosures as a result of incompatibility of data collection and reporting with data protection rules of the UK and other jurisdictions
  • individuals with certain protected characteristics being easily identified, giving rise to issues of privacy and even personal safety
  • poor quality disclosures as a result of failure to take account of different ethnicity considerations applicable to global and overseas Issuers
  • poor quality data resulting from failure to collect data on sex on a disaggregated basis
  • difficulty of comparing data to other data sources, such as the UK Census, resulting from self-identification of gender (Self ID)
  • Issuers being exposed to possible discrimination claims from employees as a result of seeking to comply with rules based on Self ID
  • breach of the FCA’s Public Sector Equality Duty set out in the Equality Act 2010 (EqA) through the adoption of Self ID, which is not recognised by the EqA

For the full text of Legal Feminist’s responses to the consultation paper and the discussion paper, download the PDFs below.

Two Key Questions

This article is written about women, but it could also apply to men and male only services.

As many readers will already know, the Equality Act 2010 provides for single sex services, and acknowledges that there will be times when it is reasonable for a service to exclude members of the opposite sex (para 27 Schedule 3) or to exclude on the basis of gender reassignment (para 28 Schedule 3). Evidently, it is not likely to be reasonable when someone is running a greengrocers, but it might well be when they are running a refuge or rape crisis centre and need to retain a recovery space that is female only, for example.

Today, the word “terfs” is trending on Twitter. This seems to have been prompted by a combination of factors, one of which is Margaret Atwood’s retweet of an article deemed unacceptable by the self-appointed terf-finder generals. At the time of writing, Atwood has not yet recanted, but did tweet “Read her piece, she’s not a terf” for which she was met with a barrage of comments insisting that the article did indeed bear the devil’s mark of terfery. 

The “not a terf” comment made me wonder: what IS a terf? Is the existing law a terf? And I think it reduces to these two key questions:

  1. Do you think that women and girls should ever have the right to meet or to access services where there is nobody present who was born male?
  2. If the answer to (1) is no, do you think that there is any stage in a male-born person’s proposed or actual transition where access to women’s spaces should be restricted?

Answering yes to one or both of these questions is in line with the existing law in the UK, which provides that single sex spaces are legal and that exclusion is justified where ‘a proportionate means of achieving a legitimate aim’ – and what is proportionate for someone who has decided in their own mind but not yet taken any physical steps at all towards transition, may not be the same as what is proportionate for someone who has socially and medically transitioned years ago.

Yet watching the terfs hashtag on Twitter, it seems that for the purists, the only available answer to either question is no. If you answer yes to either of them, then welcome to the coven – you may be horrified to learn it, but you too are among the terven. The only distance between us is which services should be restricted and how far along in transition a person should be to access them. 

For those who do, honestly, take the position that the answer to both questions must be no: you are advocating the abolition of single sex or separate sex services altogether, and therefore the abolition of some of the protections available on the basis of sex contained in the Equality Act. Anyone who wishes to advance such an extreme position must be able to formulate a cohesive argument in favour of this drastic legal change. “Shut the fuck up, terf” is not one.

How To Reconcile The Seemingly Irreconcilable

This is a talk I gave at the FILIA conference on 17 October 2021. 

I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.

The two seemingly irreconcilable principles are

1.    Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic.  No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.

Against that

2.    “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same. 

So how to reconcile this?

Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration. 

Whilst it predates the Equality Act 2010, it follows the same principles.

The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council. 

The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’.  A one size fits all approach. 

This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.

It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.

On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence. 

Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.

The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.

It required:

due regard for the need –

(a) to eliminate unlawful racial discrimination, and 

(b) to promote equality of opportunity and good relations between persons of different racial groups.”

This wording clearly is the basis for s149 Equality Act  

s149 Public sector equality duty (PSED)

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing. 

In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women. 

Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity. 

It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).

Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally. 

The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.

The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities. 

That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –

“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”

She continued:

Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”

So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women?  Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?

Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.

She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.

After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”

She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men.  Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”

Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.

The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.

LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:

“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”

This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all. 

Not cancelled

There’s quite a bit of public noise about the opprobrium, silencing, no-platforming, and even threats to livelihoods that some gender-critical feminists have suffered over the last couple of years. 

Those stories are true, and I don’t mean to minimise them in this short blog: it happens, and when it does it is disgraceful and shocking – and sometimes seriously harmful for the victims. But I worry that those cases are having a greater chilling effect than the true risks merit. The bullies only have to make a few high-profile examples for many other people who might otherwise speak up to be frightened into silence. 

So this, for a change, is a positive story of speaking up without adverse effects. 

I have written widely on the law relating to sex, gender and gender identity. Most of my writing has appeared on this blog, but I’ve also been published in the Employment Lawyers Association Briefing, the Discrimination Law Association Briefing and the Scottish Law Times. My blogs here regularly get viewing figures in the thousands – over 16,000 in the case of Submission and Compliance, my long read from February about Stonewall’s excessive influence. Some of my writing has been controversial even among members of the Legal Feminist collective: for instance, when I wrote (here) about Mridul Wadhwa’s appointment as CEO of Edinburgh Rape Crisis Centre, I used masculine pronouns, because it seemed to me important to write in a manner firmly grounded in reality. These days, for the same reason, I don’t use the expressions “trans woman” or “transwoman”, but “trans-identifying male” or “trans-identifying man”: again, I feel increasingly strongly that it is necessary to use words that reflect reality. Those choices are not universally endorsed by my Legal Feminist friends and colleagues, and some have said that they would feel unable to retweet in their own names material of that nature. (Despite disagreeing on this, we have stayed friends. Amazing, isn’t it?) 

But gender extremists would go much further, and characterise some of my writing as hateful. And I am aware of many colleagues in the legal profession who broadly agree with what I write, but feel too fearful to speak up themselves. Given the demonisation of views such as mine and the resulting climate of fear, I think it’s worth telling the story that is no story. 

The story

I have suffered no serious adverse consequences from my gender-critical writing.

The End.

That’s it. Sorry – it’s rather a boring story, but it’s true. Actually, I can add this. Not merely have I suffered no serious adverse consequences: I have reaped very considerable benefits, chief among which is the addition of the rest of the Legal Feminists to my professional network.

I’m careful, of course. I make sure that everything I write is grounded in solidly evidenced fact, or what is – at least in my genuine view – a correct interpretation of the law. I don’t get into angry Twitter spats; indeed, I don’t have a personal Twitter account at all, which means that if I am tempted get angry on Twitter (and the site is a rage engine), I have the sane calm voices of the Legal Feminists to hold me back from tweeting anything from the joint Twitter account that could harm our collective reputation. 

I’m lucky. I’m reasonably senior and established, not a precarious beginner. I’m self-employed, so I don’t have an employer breathing down my neck. The world (or at least the part of the world that matters for these purposes, which is our professional clients – solicitors) understands that barristers are individuals whose views are not to be ascribed either to their Chambers or to their clients; and indeed that a set of Chambers isn’t really the kind of thing that has a view “of its own” on these sorts of subjects anyway. So there would be no legitimacy for my Chambers to try to silence me – and to its credit, although of course there has been some grumbling, it has made no serious attempt to do so.

In addition, because I am a lawyer, my professional regulator is full of lawyers, too. That’s comforting, because it means that I have good grounds for trusting it not to be tempted to discriminate against me on grounds of my gender-critical views, or to mistake belief in material reality for hate. So although complaints to my professional regulator have been threatened, the prospect doesn’t alarm me. 

Be a little bit braver today. 

Who Watches the Watchmen?

As a society we expect high standards of those in a position of responsibility. Flick through job adverts for positions in the police, prison service, and so on, and there will be phrases like “applicants must be able to show integrity” and “high personal and professional standards.”  An enhanced DBS check will be carried out, and training offered on expectations.

This rigorous procedure is a necessary element of safeguarding where one person is invested with real power over others. The power to deprive someone else of their liberty is one which should only be afforded to the most trustworthy, for obvious reasons. Responsibility for children is another.

And yet even with an enhanced DBS check, even with the checks and interviews and training and supervision, abusers and predators can slip through the net.

The use of his police powers by Wayne Couzens to kidnap and murder Sarah Everard is graphic and horrifying. But he is not the only police officer involved in abuse of women: at least 15 former or serving police officers have killed women since 2009. Just over this summer, Kevin Bentley (who boasted to victims that his position as a police officer made him “teflon”) was sentenced for 24 sexual assaults and Earling Leask was sentenced for grooming vulnerable women.

Nor are the police the only institution affected. Take for example the case of David Whitfield, a prison officer recently sentenced for demanding sexual favours from female prisoners in exchange for privileges – and in the same month, August 2021, Joshua Whitehead was sentenced for sexual assault while Jordan Jackman was jailed after he used his system access to obtain the personal details of a visitor he thought attractive. These incidents are not vanishingly rare. Clerics, teachers, caretakers and more – no matter how rigorous the checks, a predator who has not (yet) been arrested or convicted can work in these positions of power.

An unrealistic solution perhaps, in light of how many more women would need to be recruited – but if there are no safeguarding checks capable of dealing with an epidemic of violence against women, is it time to amend legislation so that only female police officers have permission to arrest and detain women, and only female prison officers may work in a women’s prison? 

Schrödinger’s PCP

https://commons.wikimedia.org/wiki/File:Kitten_and_partial_reflection_in_mirror.jpg

In AEA v EHRC [2021] EWHC 1623 (Admin), Henshaw J refused the claimant permission to seek judicial review of the EHRC Code of Practice on Services, public functions and associations. AEA had challenged various aspects of the CoP, but in particular a paragraph that asserted that service providers offering single-sex or separate-sex services should treat transsexual people according to the gender role in which they present (I’m just going to write “single-sex” in what follows, but ​everything applies equally to separate-sex services). AEA argued that that misstated the law: any lawful single-sex service is entitled to exclude everyone who is not of the sex in question, irrespective of what other protected characteristics they might have. 

 A decision refusing permission for judicial review has no status as precedent, so the judgment is not binding on any other court or tribunal. But it has attracted some attention nevertheless, partly because of the heightened feelings on both sides of the “gender war,” and partly  because of the trenchant terms in which it is expressed. The judge repeatedly dismisses AEA’s arguments as “clearly wrong”, “clearly incompatible with the tenor of the Act,” and even “an obvious absurdity.” 

That makes me think it’s worth taking a look at some of the detail of Henshaw J’s reasoning. First, a very short introduction to the Equality Act 2010 and how it works. 

The Equality Act 2010

The Equality Act prohibits various kinds of discrimination on grounds of specified “protected characteristics” – age, sex, race, etc. – in a number of specified contexts. The Act is structured as follows. First (after some preliminary material that doesn’t matter for my purposes), it defines the protected characteristics. There are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

Next, the Act defines various different kinds of discrimination: direct, indirect, harassment, failure to make reasonable adjustments for person with a disability, etc. The two that matter for present purposes are direct and indirect discrimination. Direct discrimination is treating someone less favourably than others because of a protected characteristic. Indirect discrimination is the application of a provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared with others, and cannot be shown to be a proportionate means of achieving a legitimate aim. 

Note that, thus far, the Act hasn’t prohibited or required anything: these initial parts of the Act simply set up the definitions that are going to be relied on in the later sections that actually tell you what you are and are not allowed to do. 

The real work of the Act is done in parts 3 to 7, which prohibit discrimination in various different contexts: services and public functions, premises, work, education and associations. These prohibitions are modified by various exceptions and qualifications, some to be found in the Act itself, and some one or other of its Schedules. 

Part 3 of the Act prohibits discrimination in the provision of services and public functions, and schedule 3 provides for exceptions to those prohibitions. 

The argument 

Among the schedule 3 exceptions, there are rules intended to make it possible to run single-sex services if certain conditions are met. AEA had argued that if it’s lawful to operate a particular single-sex service for women, then it must necessarily be lawful to exclude all men from it: otherwise it’s not single-sex. So far, so obvious, you might think. If that was right, the EHRC guidance saying trans people should be treated according to the gender role in which they presented was erroneous. 

The EHRC had come up with a clever answer. Schedule 3 says that where the conditions for a women-only service are in place, it’s not unlawful sex discrimination to exclude all males. But it doesn’t say that it can’t be unlawful discrimination on any other ground. So, EHRC argued, a rule excluding all men from the service might turn out to be unlawful indirect discrimination on grounds of gender reassignment.

That was a neat argument, but there was a neat answer. Once the conditions of paragraphs 26 or 27 of schedule 3 are met, the sex discrimination inherent in the rule is excused, but it’s true that those paragraphs don’t exclude the possibility of indirect discrimination on some other ground. And it is clear enough that excluding all men from a service could sometimes put men with the PC of gender reassignment at a disadvantage compared to men without that PC, if it was a service they needed and for which there was no unisex provision where their presence would be unremarkable. So a complaint of indirect discrimination within the meaning of section 19 of the Act might be brought, and if it did a question might arise whether the rule excluding men was a proportionate means of achieving a legitimate aim. 

But at this point it becomes clear that indirect discrimination takes matters no further forward. It is only lawful to offer a single-sex or separate-sex service under paragraph 26 or 27 of schedule 3 if “the limited provision is a proportionate means of achieving a legitimate aim.”  This is the exact same question asked by s.19 to determine whether there is indirect discrimination. If the limited provision is not a proportionate means of achieving a legitimate aim, then it’s not lawful to offer a single-sex or separate-sex service at all. If it is lawful to offer a single-sex service, then ex hypothesi, the limited provision (and with it the rule excluding men) is a proportionate means of achieving a legitimate aim.

It follows as a matter of inexorable logic that if it is lawful to offer a women-only service, it’s lawful to exclude all men from it – including those who identify as women. 

One can reach the same conclusion by a shorter route. If it is lawful to offer a single-sex service for women, then of course it is lawful to exclude all men from it: otherwise it’s not single-sex, but mixed.

At ¶15, Henshaw J says this: 

The claimant submits that if a difference of treatment can be justified vis-a-vis birth men in general, then it is inconceivable that it cannot equally be justified vis-à-vis birth men who are transsexual women. On that approach, though, the Equality Act’s gender reassignment provisions would in substance provide no protection at all, in the context of an SSS, to transexual persons without a GRC.

Since the AEA’s contention was exactly that – that the gender reassignment provisions provide no protection at all to trans persons without a GRC so far as the operation of single-sex services is concerned – what this boils down to is “But on the claimant’s approach, the claimant would win!”  The same point recurs at ¶17: 

In my view, the claimant’s argument is an obvious absurdity because it would construe s.19 in such a way that Schedule 3 para. 28 could never apply to a transexual woman lacking a GRC who complained of indirect discrimination vis-à-vis birth women.

Again – that was exactly AEA’s point: paragraph 28 of schedule 3 would never arise in the case of a trans-identifying man without a GRC. So this means “The claimant’s argument is an obvious absurdity because it would lead to the claimant winning its argument.” This is a particularly pure specimen of the logical fallacy called “begging the question”: that is, assuming as part of your argument that which is to be proved.

This is odd. They don’t as a rule appoint fools to the High Court bench, and everything about Henshaw J’s career to date confirms that he’s no exception. And yet the logical fallacy is plain to be seen – twice. What’s going on here? Why did the judge find it so unthinkably absurd that AEA could be right in saying that if the law lets you restrict a service or space to women, it’s ok to – well, restrict it to women? 

I don’t know the answer to that question. I have a guess – actually I have two guesses. The first is that the promulgation of ‘Stonewall law’ has been so successful that large parts of the educated elite have absorbed it as a commonplace ‘known fact’ that it is unlawful except in the most extreme circumstances to restrict trans people’s access to spaces and services provided for the opposite sex. When AEA argued that trans-identifying males without GRCs could be routinely excluded from any legitimate female-only space or service, that came into conflict with something the judge thought he had known for ages. My second guess is in the coda at the end of this blog. 

Paragraph 17 continues:

[T]he claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29 [this is presumably a typo for 28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination.

It is not clear why the judge thinks that an approach that puts trans-identifying men without a GRC in the same position as other men for these purposes is incompatible with the tenor of the Act. The Act prohibits discrimination on various grounds as well as sex and gender reassignment; but the point – indeed the very definition – of single-sex services is that they exclude one sex. It follows that a single-sex service for women will exclude all men, irrespective of their other protected characteristics: if that goes for race, disability, sexual orientation, age, religion or belief, why would it not also go for gender reassignment?

The error into which the judge appears to have fallen is to conflate the right not to suffer  discrimination on grounds of gender reassignment with a right to be treated as the opposite sex. A trans-identifying man excluded, for example, from the ladies’ has not suffered discrimination on grounds of gender reassignment, because a non-trans-identifying man would be excluded just the same. To the extent that the law provides for a right to be treated as the opposite sex, that is done through the mechanism of the Gender Recognition Act 2004, but only for the benefit of those who have a gender recognition certificate.

At ¶16, the judge says: 

In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable that regard must be had to its impact on persons with the protected characteristic in question. It is clearly wrong to assume, as a matter of law, or as a matter of obvious practice, that the answer will necessarily be the same whether one assesses a PCP as applied to birth males in general or whether one assesses it as applied vis-à-vis birth males who are transsexual women.

This is surprising. The words of the justification provisions are identical in s.19 and in ¶¶26 and 27 of schedule 3: what needs to be shown is that “the PCP” in one case or “the limited provision” in the other is “a proportionate means of achieving a legitimate aim.” Given that the PCP is the rule excluding one sex, a court seized of a question about the lawfulness of a single-sex service would be answering at both points the question “is the rule excluding men a proportionate means of achieving a legitimate aim?” The judge in AEA appears to think that that question could have one answer for the purposes of ¶26 or 27, and a different answer for the purposes of section 19. The rule is either a proportionate means of achieving a legitimate aim, or it is not: it can’t be both a proportionate means of achieving a legitimate aim and not a proportionate means of achieving a legitimate aim at one and the same time.  

Coda – on words 

I was junior counsel for AEA in this case.  Before that hearing, I had been willing – out of politeness, and sensitivity to the feelings of trans people generally – to write and speak of “trans women,” and use feminine pronouns, even when not referring to real individuals but exploring hypotheticals and generalities. Listening to argument in court that day was a personal tipping-point. It became vivid – to me at least – in the course of the hearing that the unreal language being used by everyone was obscuring the logic of the arguments and confusing the court. It’s much easier to see at a glance that a legitimate rule excluding men will legitimately exclude all men if your language acknowledges that all the people whom it excludes are indeed men. 

Thinking, speaking and writing of “trans women” or “transsexual women” primes our minds to conceptualise trans-identifying men as a kind of woman. They are not: men are still men – however they identify, whatever they wear, and whatever treatment they may have undergone to modify their bodies to look more like women’s bodies. Those of us who would defend clarity and rationality in this area of the law need to hold that line. 

Fostering good relations

Mridul Wadhwa is the CEO of Edinburgh Rape Crisis Centre. The job was advertised as being restricted to women, under schedule 9 of the Equality Act 2010. 

Although ineligible for the job as advertised, Wadhwa was appointed.

At this point I must digress briefly. I have written before about “misgendering” (here and here). In writing about Wadhwa’s appointment to this role, I will use the nouns and pronouns appropriate to his biological sex. I do not apologise for doing so. I do so because I am writing about a situation in which sex matters. I have a serious point to make, and I intend to make it as clearly and powerfully as I am able to; I am not prepared to obscure my message with misplaced politeness.  

Single-sex spaces and services are permitted by schedule 3 to the Equality Act 2010, and jobs may lawfully be restricted to those having a particular protected characteristic by schedule 9. Because of the legal fiction that some men are women created by section 9 of the Gender Recognition Act 2004, if a job needs to be done by a woman for the privacy and dignity or safety of service users, then two occupational requirements will be relied on: to be (legally) a woman; and also not to be a transsexual person. (This is the language of the 2010 Act: section 7(3) defines “a transsexual person” as a person with the protected characteristic of gender reassignment.) 

Edinburgh Rape Crisis Centre did not explain this subtlety in their job advert. They didn’t need to: they had said “only women need apply,” and the context should have made it clear to any reasonable reader that the job was not open to males, however they identified and whatever paperwork they might have. They would have been perfectly entitled to decline Wadhwa’s application, relying on Schedule 9. Wadhwa doesn’t have a GRC, so in his case it would have been a straightforward application of the requirement to be a woman: the Centre would have had no need to rely on an additional requirement not to be a transsexual person.   

But they didn’t decline. They declared an occupational requirement to be a woman in their job advert; but when Wadhwa applied for the job, they waived it in his favour. 

Discrimination claims? 

No doubt the runner-up was a woman who was properly eligible for the role, and who did not get it because Wadhwa was given the job instead. That woman has not suffered direct sex discrimination: the reason she didn’t get the job was not because she’s a woman, but because Edinburgh Rape Crisis Centre decided to ignore the occupational requirement it had specified and give the job to a man instead. There might be some way to frame an argument that the runner-up had suffered indirect discrimination by saying that the failure to operate the occupational requirement properly was a provision, criterion or practice that put women at a particular disadvantage compared to men – but that is already sounding convoluted and unnatural, and I admit I lack enthusiasm to analyse it further. I don’t think it would succeed. 

The position of a man deterred from applying for the role (or who applied but was rejected on grounds of his sex) is more straightforward. A candidate in this position has suffered direct sex discrimination, which ordinarily would have been sanctioned by the occupational requirement. But in waiving the occupational requirement for the benefit of  Wadhwa, Edinburgh Rape Crisis Centre has at least arguably lost its protection. A discrimination claim must ordinarily be brought within 3 months of the act complained of, so it is unlikely that the Centre will now face a claim of this nature relating to the CEO post. But it appears intent on repeating the same error in its more recent advertisement for a Chief Operating Officer. That advert states that only women need apply, but also says: 

We are committed to a diverse and inclusive workplace and especially welcome applications from women of colour, trans women and disabled women.

It seems, then, that Edinburgh Rape Crisis Centre proposes to apply the same modified occupational requirement – to be either a woman, or a man who self-identifies as a woman – to the role. It is not at all clear that it is entitled to do so, and an employment tribunal claim by a potential male candidate for the role who has been deterred by the schedule 9 stipulation must be a real possibility. 

The Equality and Human Rights Commission’s role

By section 149 of the 2010 Act, public authorities are required to have due regard in exercising their functions to the need to eliminate discrimination, advance equality of opportunity, and (crucially for these purposes) to foster good relations between people who share a relevant protected characteristic and those who do not. The Equality and Human Rights Commission has duties to promote understanding of the 2010 Act, and to promote good practice; and by s.16 it has power to conduct an inquiry into any matter relating to those duties.  

The EHRC’s answer to an inquiry about any action it intended to take in relation to the appointment of Wadhwa to the Edinburgh Rape Crisis Centre post was (after delay of over 12 weeks) as follows: 

The Commission has a number of regulatory powers. However, as you will appreciate, the Commission has limited resources and we must use our powers strategically. We consider our litigation and enforcement policy when deciding when to take legal action. The policy can be found here

We have considered carefully whether taking formal action in relation to ERCC would be a proportionate and effective use of our powers. We have taken into consideration the fact that ERCC is a small third sector organisation, that the recruitment for the role in question has been completed and, if there is an unlawful act which is not clear, that the number of people who may have been adversely impacted in the recruitment process is limited [being men suitably qualified for the role and deterred from applying due to the advert specifying that only women need apply]. On balance therefore we do not believe that using our enforcement powers in relation to this matter is proportionate.

Edinburgh Rape Crisis Centre’s misuse of its schedule 9 freedom to restrict a role to women has received wide public attention and has been the subject of many news reports. Its appointment of a man to its CEO role has operated – whether by accident or design – as a prominent show of strength: a demonstration to abused and traumatised women that there is no sanctuary for them where they can be sure that no men are present, and sure that no men are making decisions. The appointment was an inflammatory act that could scarcely have been more calculated to damage relations between women and trans people, and it was effected through a flagrant misuse of schedule 9. 

It is true that the EHRC has many claims on limited resources, and has considerable freedom to determine how it will apply those resources; so any attempt to challenge that decision by way of judicial review would be an uphill struggle. All the same, it is bitterly disappointing that the EHRC does not regard this situation as sufficiently important to justify a use of its investigatory powers.

Conclusion 

That’s the legal situation as I understand it. But in truth, the legalities of the situation are peripheral. What really matters is the concrete reality. The concrete reality looks like this. 

Wadhwa is a man who has secured and continues to hold an appointment as CEO of a rape crisis centre that purports to provide an all-women space, to the profound dismay of many of its potential users (see e.g. Jo Bartosch’s account in her powerful piece in The Critic of the flood of responses from survivors that she received to a call for information; and this blog). 

Wadhwa is a man who has prioritised his own needs over the needs of service users, and has brought his male body into a space that should be wholly controlled by women; entered only with their consent, freely given. He has done that despite vociferous objections from many of the women concerned. He has implicitly characterised service users who object as “bigots.” 

No man should be made CEO of a rape crisis centre that purports to offer a female-only service; but especially not a man whose actions have demonstrated the open contempt for women’s boundaries that Wadhwa’s have. 

Wadhwa should resign.

Template Letter to AG re: Sam Pybus sentence

Many people have been saddened and horrified by the sentence handed down to Sam Pybus for the murder of Sophie Moss. He had pleaded guilty to manslaughter, but not to murder, using the so-called ‘rough sex defence’ that his violence towards her, in this case strangulation, had at the outset been consensual. His plea to manslaughter was accepted and he was jailed for 4 years and 8 months.

A number of people have asked how a sentence can be reviewed as ‘unduly lenient.’ It is done through the Attorney General’s office. A template letter is provided here.

Attorney General’s Office 

By email: uls.referrals@attorneygeneral.gov.uk

Date: [before 4 October 2021]

Dear Attorney General

I am writing to you to request a review of the sentence of Sam Pybus, passed at Teesside Crown Court on 7 September 2021, as unduly lenient. 

The sentence was one of four years and eight months imposed for manslaughter. Pybus had strangled Sophie Moss to death, while he was intoxicated. Although he said he could not remember what had happened, he entered a guilty plea saying it had occurred during consensual sexual activity. 

The Sentencing Guidelines state that where death “was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability, which carries a starting point of 12 years custody. It ought to be obvious to anybody that strangulation carries a high risk of death or GBH. 

I would ask you to refer the sentence to the Court of Appeal as unduly lenient.

Yours sincerely

Yet More On Misgendering

This is yet another look at misgendering, in which I take a rather less robust view than Naomi – referencing her post here – as to when it might be reasonable to misgender a colleague in the workplace. (I am not looking at it outside that context, because the Equality Act does not govern how people relate to one another in the course of interpersonal relationships.)

I will use the same characters from Naomi’s blog: Jen and Liz. But in my version, Jen is not transitioning – rather, having attended an Alpha course, she has become a practising Christian, while Liz is an avowed atheist. In each case, the situation arises after a casual discussion about their respective plans for the weekend. Jen has told her colleagues that she will be baptised. It leads on to a more general discussion about religion in which, having been asked directly what she thinks, Liz makes clear that she views any religious belief as “delusional,” and refers dismissively to “sky fairies,” “science-deniers” and “medieval superstition.” (In a social conversation in which she was expressly asked, she is entitled to answer.)

Scenario 1 

In this scenario, Liz does not repeat her views on religion to Jen, and Jen does not say anything more about her faith to Liz. They continue working together, albeit with some awkward silences. 

This is clearly acceptable.

Scenario 2 

In this scenario, Liz makes a point of repeating her views on religion to Jen whenever they are together. Liz asks Jen whether she also believes in the tooth fairy, and demands to know why she is wearing a polycotton blouse when there is an edict in Leviticus 19 against wearing clothes made from more than one fabric. In the canteen, she highlights news stories about child abuse in the church or religious wars whenever Jen is nearby. When Jen asks her to tone it down, she points out in a way Jen finds belligerent that her lack of belief is just as much a protected characteristic as Jen’s belief, and suggests sarcastically that Jen practise turning the other cheek.

Liz is clearly harassing Jen.

Scenario 3 

Knowing that Liz is an atheist, Jen persistently tries to convert Liz despite Liz’s clear lack of interest, offering to pray with her, and giving her Bible study leaflets. After Liz’s picture is in the papers showing her attending a pro-choice march, Jen tries to interest her in materials including a “post abortion course” run by her church and focusing on forgiveness, which Liz finds particularly offensive because, unknown to Jen, Liz had an abortion aged 15 after being date-raped.

Jen is clearly harassing Liz, even if she was unaware of Liz’s personal history.

Scenario 4 

In this scenario, Liz does not target Jen in that she does not seek her out to denigrate her views and she does not repeat her own views to Jen directly. However, every time she mentions Jen’s name, she references their opposing views – with sentences such as “I’ll have to ask Jen, whose belief in a deity I do not share, if she can make 20 copies of that” or “Can we check if Paul, Amy, and Jen (whose belief in a deity I do not share) can make the meeting?”

Putting aside for a moment that this scenario is necessarily artificial, would it be harassment? She is not saying it directly to Jen. Her own (lack of) belief is indeed protected. There is no evidence that she is treating Jen badly; she just doesn’t share her beliefs. And yet I think that most people would agree that this is indeed harassment, because in every single interaction Liz has about Jen, if not to Jen, she uses a phrase that reminds her colleagues that Liz thinks that Jen’s religious beliefs are nonsense. Would it make a difference if she had used less forthright language about her own atheism at the outset? I think probably very little, if any.

***

I cannot see any way in which a person could ‘misgender’ a colleague behind their back, even while avoiding using any pronoun but “you / your” to their face, without falling into the same error. Every interaction about the person serves only to reiterate and reinforce the disputed issue, and to remind everyone present of the subject’s biological sex. On that basis I tentatively disagree with Naomi’s view that refusing to use someone’s preferred pronouns will “almost never” amount to harassment.

This of course raises the question as to whether requiring an employee to use preferred pronouns stumbles into the same trap. Using the same, admittedly imperfect, analogy, would it amount to requiring Liz to refer to Jen as “Jen (whose faith I share)” at all times? On balance I don’t think that it would. This is partly because employees do say – may even be required to say – things at work which they would not say outside work – such as “have a nice day” to a customer upon whom they wish nothing but leeches and misery, or “our products are the best” when their own preference is the product of a competitor. 

But it is also because, socially, pronouns have a little more fluidity than the GC view tends to admit. ‘Passing’ trans people, however few in number, have been referred to in their preferred pronouns since Lili Elbe in the 1930s, through to Christine Goodwin in the 1990s and on to today. The use of feminine pronouns among effeminate gay men has been both reality and the subject of comedy, sometimes self-deprecating comedy, for decades. Are we really to believe that a neurotypical employee who could understand that “ooh, get her” might refer to a male person would still find referring to John / Jen as “her”  impossible? And is it really coherent to say that using a socially feminine-coded name – a proper noun – is a reasonable request for a male person but using a socially feminine-coded pronoun – a substitute for that proper noun – is not?

While it is of little immediate help to employees, HR departments, or those with the protected characteristics of gender reassignment or gender critical belief, the historical tendency of the English language to develop along the path of least difficulty may resolve this over the next century or so. In 2121, the use of the singular “he/she” may be as archaic as the 2021 use of the singular “thou/thee,” retained only in local dialect or historical language, or as completely obsolete as the 1021 use of the dual pronoun (wit – we two, git – you two). Equally plausibly, in 2121, linguistics students may be studying as a sociolinguistic phenomenon the brief historic revival of the Chaucerian singular ‘they’ in the 2010-2030 period. Who knows? 

Meanwhile, at least until there is a reasonable body of case law on the subject, I think that ‘misgendering’ a specific colleague may very arguably amount to harassment. Either Naomi or I will be wrong – or, given how case law develops, we will both be right and wrong on different points and at different times.