British Cycling has posted a consultation on their proposed ‘Transgender and Non-Binary Participation Policy’. We take a look at the parts of the Equality Act 2010 that are relevant to single-sex sporting events and highlight some of the issues we consider relevant to the consultation response.
Responses to the consultation are invited by way of a survey available here:
The Equality Act 2010 defines a “transsexual” person as someone who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. That person will then have the ‘protected characteristic’ of “gender reassignment”. The term ‘transexual’ is now considered to be outdated and ‘transgender’ is typically used instead, but there is no legal difference in the terminology. A person does not have to have had any form of surgery or hormonal treatment to acquire the protected characteristic of gender reassignment.
A person may have the protected characteristic of gender reassignment without their legal sex being changed from that which was recorded on their birth certificate at birth. It is only where a person has a Gender Recognition Certificate (‘GRC’) issued under the Gender Recognition Act 2004 that their legal sex is officially changed. Fewer than 5,000 of the estimated 600,000 transgender people in the UK have been issued with a GRC. It is not necessary for a person to have had any form of surgery or hormonal treatment in order to obtain a GRC, but they will have had to evidence to the satisfaction of a specialist panel that they have lived as their acquired gender for at least two years and that they have a medical diagnosis of gender dysphoria.
The Equality Act creates a starting point that discrimination on the grounds of sex is unlawful. It then goes on to create exceptions to this starting point that make it lawful to discriminate in a variety of specified circumstances. For our purposes the relevant exceptions are “gender-affected” sports (section 195) and single-sex services, which includes the provision of changing facilities and of recreational sporting activities (schedule 3 paragraphs 27 and 28).
Similar to section 19 of the Gender Recognition Act 2004, section 195(3) of the Equality Act 2010 defines a “gender-affected activity” as
“a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.”
Section 195(1) provides that it is not unlawful to discriminate on the basis of sex in relation to a person’s participation in a “gender-affected activity”. This means that it is permitted for an event organiser to hold separate competitions for male and female competitors or to run separate classes for either sex within the same sporting event.
If a sport is deemed to be a “gender-affected activity” it is lawful to limit or refuse a transgender person entry to a particular competition if it is “necessary to do so to secure … (a) fair competition, or (b) the safety of competitors”.
This would mean that it would be lawful for British Cycling to refuse to admit all transwomen entry to a female-only competition if it was considered that the effects of going through a male puberty would create a residual biological advantage in a transwoman competitor (such as height, cardio-vascular capacity, muscle mass), notwithstanding that the competitor had demonstrated suppressed testosterone levels for the required 12 month period. This would be lawful regardless of whether or not the transwoman holds a GRC. A failure to take these factors into account could found a claim by female competitors for indirect discrimination.
It would be unlawful to prevent a transwoman from competing in an ‘open’ or men’s category competition.
The exceptions in relation to the provision of services are relevant to non-competitive cycling events and to the provision of changing facilities at an event, whether competitive or not.
It is lawful to hold single-sex recreational events such as a ‘women only’ cycling event, whether as a one-off or as a regular program.
Paragraph 27 of Schedule 3 provides that it is lawful to provide a single-sex service where
“a joint service for persons of both sexes would be less effective, and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services”, provided that it is a “proportionate means of achieving a legitimate aim”.
Increasing women’s participation in cycling, and in sport generally, is a legitimate aim. Given that there are a vast number of events that are open to men and/or people of both sexes, it is proportionate to hold women-only events to create a more female-friendly atmosphere.
When the single-sex provisions are properly relied upon, it becomes lawful to exclude all male people from that event. This would include transwomen who do not hold a GRC.
It can be lawful to exclude transwomen who do hold a GRC, but the justification for doing so has to be more finely balanced. This is set out in paragraph 28 of Schedule 3. Exclusion from the event would not be on the basis that the person’s legal sex is male, but rather, it would be on the basis that they are transgender. Factors that are relevant to the proportionality exercise can include, for example, whether the event is aimed at women who share particular religious beliefs that limit socialisation with males outside their family.
A woman who felt unable to take part in a ‘women only’ event that was open to transwomen, because of her religious or other protected belief, or because she has previously been a victim of male violence could potentially bring a claim for indirect discrimination.
Alternatively, if a transwoman is excluded from an event for women only because she is perceived as male (notwithstanding her legal status), that is at least arguably sex discrimination (not gender reassignment discrimination), and permitted by paragraph 27 of schedule 3.
The same provisions in schedule 3 paragraphs 27 and 28 apply to single-sex changing facilities, whether they are provided at a competitive or recreational event. It is lawful to exclude males as a class from women’s toilets and changing facilities where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”
It may also be lawful to exclude a transwoman who holds a GRC from those spaces on grounds of gender reassignment where it is proportionate to do so. Such considerations may be whether the facilities are communal as opposed to fully-enclosed cubicles. The legitimate aim of encouraging more women into sport should be given particular weight. The impact on women who have suffered sex-based violence and trauma from males must be counted. The needs of all women to privacy, dignity and a sense of safety when changing is reasonable aim that cannot be achieved by compelling them to undress in close proximity to bodies readily perceived as male.
Alternatively, it may be more straightforward simply to characterise that exclusion as discrimination on grounds of perceived sex, which will always be lawful provided the initial conditions for the provision of a single-sex or separate-sex service are met.
Response to Consultation Questions
· Birth Gender: the gender that a person is assumed to be when they are born. This is usually based on the Sex they are assigned at birth.
This is not a term recognised in law. It conflates the concept of ‘gender’ with the recording of a person’s sex at birth. It adds nothing in terms of clarity to the definition of ‘sex’ below. This definition should be removed. Where relevant the appropriate term would be “sex recorded at birth”.
· Self-Identified Gender: the gender that the person identifies as, opposed to that which is assigned at birth, their ‘Birth Gender’.
This is muddled:
– Sex is recorded at birth, gender is not.
– As above, ‘Birth Gender’ adds nothing to the definition of ‘sex’.
– It conflates the situations of people who are transgender by virtue of ‘self-identification’ with those who have legally changed their sex upon the issuance of a GRC. Their status’ are legally distinct.
Suggest amending to:
Self-Identified Gender: the gender that the person identifies as, opposed to the sex recorded on their birth certificate.
· Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’ and including indeterminate Sex.
‘Indeterminate sex’ is an inappropriate term. People with chromosomal anomalies that result in Differences of Sexual Development (‘DSD’) are still recognised as being either male or female.
To properly recognise people who have been issued with a Gender Recognition Certificate, suggest amending to:
Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’, or their ‘legal sex’ as recorded in their Gender Recognition Certificate.
· Transgender: a person whose Gender Identity is different from their physical Sex at birth. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.
This definition is broader than the protected characteristic of ‘gender reassignment’ in the Equality Act. The Act requires that a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Merely identifying as being of a different gender from one’s birth sex is not sufficient to bring a person under the definition of this protected characteristic. Given that this would form the basis for deciding whether an individual is protected from discrimination and the application of single sex exceptions, this requires precision and therefore suggest amending to the legal definition:
Transgender: a person proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.
The following amendments are suggested:
· “gender other than that assigned at birth” amend to “gender other than their sex as recorded at birth”
· “for sporting purposes” amend to “for the purposes of British Cycling events and activities”
· “obtain British Cycling Race Membership in their Self-Identified Gender” amend to “obtain British Cycling Race Membership in their Self-Identified Gender or legal sex as recognised by a Gender Recognition Certificate”.
At present the policy does not expressly consider transgender people who have a GRC and who have already changed their legal sex; it appears as it only requires a person who does not have a GRC to present medical evidence that they meet the conditions set out in paragraph 5. As there is no medical condition attached to the issuance of a GRC, the policy must make it clear that both self-identified transgender people and those who hold a GRC must satisfy the medical requirements.
· “their membership shall be in their Self-Identified Gender rather than the Sex assigned at birth” amend to “their membership shall be in their Self-Identified Gender or reassigned Gender pursuant to a Gender Recognition Certificate rather than the Sex recorded at birth”
Q 3:Recreational Activity
This section of the policy, in conjunction with the provisions relating to membership in section 2 allows any male person, even if he is not actually transgender, full and unfettered access to women only cycling events and to women’s toilets and changing rooms provided at those events. All that is required is that he signs a declaration that for “sporting purposes”, he wishes to be treated as if he is female. He does not have to show that he in any way ‘lives as a woman’ or even that he is actually transgender.
The policy fails to apply the single-sex exceptions as contained in schedule 3 of the Equality Act. Failure to provide appropriate single-sex facilities would unlawfully discriminate against women who attend, or wish to attend an event. It is also contrary to British Cycling’s stated aims of increasing the participation of women in the sport.
This policy should be worded with greater clarity.
In relation to licences to complete in the female category there is no specification of how the reduction of testosterone has to be evidenced. Is it sufficient to produce a Medical attestation demonstrating that the required hormone levels were met 12 months prior to the date of application? Must this also be evidenced at a date and shortly prior to application and if so, within what time? Is evidence in the intervening period required? How often must testosterone levels be monitored thereafter- is an annual test sufficient?
If a competitor is issued with a female race licence but then fails to evidence that they have kept their testosterone reduced to the correct level in the subsequent 12 months, what happens to any titles, prize money etc that they may win during that period?
In relation to licences to complete in the male category there is no reference to the Therapeutic Use Exemption certificates that would be required in relation to a transman injecting testosterone.
Q 4 Other Comment
Public Sector Equality Duty
British Cycling is likely to be bound by the requirements of section 149 of the Equality Act 2010 – the Public Sector Equality Duty. This applies to some private organisations if they carry out a “function of a public nature”. British Cycling is funded in part by public funds, and exercises delegated powers from Sport England. Its role as a governing body for the sport, including its role in the selection and management of national teams means that it is likely to be deemed meet this criteria.
It therefore has a duty:
“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.”
It is obliged to consciously direct its mind to these obligations and to evidence that it has analysed its policies to ensure compliance with the Equality Act. This would involve taking proper consideration of the rights and views of people of all protected characteristics. British Cycling should carry out an equality impact assessment, informed by a proper consultation with its members to assess the impact of this policy on people of all protected characteristics and particularly on women, including women of minority ethnicities and religions.
1. There are deficiencies in the drafting of the Bill that; a) could prove counter-productive and allow the use of protection notices to be weaponised against the real victims of domestic violence; and b) create a risk that vulnerable people who lack capacity or who have a mental impairment may be unfairly criminalised.
2. The definition of “domestic abuse” is insufficiently defined and likely to result in inconsistent and ineffective policing.
3. There are a lack of procedural safeguards to address the following:
i. To ensure that the complainant is at a genuine risk of suffering emotional or physical harm;
ii. To prevent abusers from making false or exaggerated reports in order to obtain a powerful mechanism by which to control their victim;
iii. To prevent abusers from claiming they are being subject to psychological or emotional abuse in respect of behaviour on the part of their victim which is engendered only by the abusive behaviour (the ‘nagging wife’ complaint);
iv. To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct.
4. It is proposed that significant changes be made to the Bill to address these problems. In addition:
i. s 30(5) additionally should prevent the making of a protection order against a person who for reason of their disability is unable to understand the consequences of, or to moderate their behaviour.
ii. s 34(1)(a) to comply with the Equality Act 2010 and the Human Rights Act 1998 additionally should prevent the imposition of restrictions that conflict with a person’s “other protected belief”.
SUMMARY OF THE PROCEDURE
5. Legal Feminist is concerned by the process for the making of a domestic abuse protection notice and a domestic abuse protection order under Part 3 of the Bill. This provides for a procedure as follows:
i. A domestic abuse protection notice may be issued where a senior police officer has ‘reasonable grounds for believing’ that abuse has occurred and that it is necessary to issue a notice to protect the victim from domestic abuse (s 20(3)&(4));
ii. Where a notice has been issued, the police must within 48 hours make an application to the magistrates for a domestic abuse protection order (s 26(3));
iii. The magistrates will make such an order when satisfied, on the balance of probabilities, that the abuse complained of did occur and that it is necessary and proportionate to make the order to prevent domestic abuse or the risk of domestic abuse from occurring (s 30(1)&(2));
iv. Before making a notice or order the wishes of the victim and views of the alleged perpetrator must be considered but are not determinative of the decision (s 22(1) & s 31(1));
v. It is not necessary for the victim of the abuse to consent to the making of the notice or order (s 22(4) & s 31(3)).
vi. As to the content of an order, s 33(1) provides that:
“A court may by a domestic abuse protection order impose any requirements that the court considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse.”
vii. A person commits an offence if without reasonable excuse they fail to “comply with any requirement imposed by the order” (s 37(1)). The offence is both summary and indictable, with a penalty of a fine and/or maximum of 12 months imprisonment for the former and 5 years for the latter (s 37(5)).
6. The definition of “domestic abuse” is set out in s 1. This section contains the totality of the definition.
1 Definition of “domestic abuse”
(1) This section defines “domestic abuse” for the purposes of this Act.
(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” 5 if—
(a) A and B are each aged 16 or over and are personally connected to each other, and
(b) the behaviour is abusive.
(3) Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));
(e)psychological, emotional or other abuse;
and it does not matter whether the behaviour consists of a single incident or a course of conduct.
7. We consider this section to be problematic, for the following reasons:
i. Defining “abusive” behaviour as “other abuse” is circular in its reasoning;
ii. There is no necessity for proving that the ‘victim’ of the behaviour finds it abusive;
iii. There is no requirement that the ‘perpetrator’ understands (or should reasonably understand) that the behaviour is abusive;
iv. There is no requirement to show that any further instance of domestic abuse has occurred following the making of an order, as the offence lies only in breaching the conditions of the order; such conditions may be ‘any’.
8. Legal Feminist highlights two potential scenarios in which the lack of requirement to prove either the perception of the ‘victim’ or of the ‘perpetrator’ could result in unintended and unjust consequences:
i. Use by perpetrators of domestic abuse to further persecute their victims.
9. Members of Legal Feminist are familiar with the current use and misuse of Domestic Abuse protections and how domestic abusers manipulate the system so that victims often end up re-victimised by the very system which was designed to help them. 
10. Not all victims of domestic abuse are silent victims. Many women do shout back, argue, complain etc or even at times attempt to defend themselves physically. Such attempts at resistance do not reflect the power imbalance or mean that they are not ‘properly’ victims of abuse at the hands of their violent male partner.
11. It would become possible in this scenario for the abuser to report to the police that he has been struck on one occasion by his female partner and to persuade the police to issue a protection notice. Whilst the police are obliged to take into account any representations made by the alleged perpetrator (in this case the woman), they are not obliged to seek out any representation or to properly investigate or challenge the account given by the alleged victim (in this case the man). On production to court, the magistrates can proceed to issue a protection order even if the man does not attend (it is not possible to for a summons to be issued for his attendance s 26(8)(b)). They can find on the balance of probabilities that abuse has occurred without any investigation as to whether the man truly suffered any emotional or physical harm, and without there being any investigation as to the background of the relationship that may have caused the woman to react as she did. The making of a protection order would then be a powerful tool that the abusive man could use to control the actions of the woman.
12. This risk of misuse becomes increasingly difficult to guard against when the ‘abuse’ complained of is “psychological, emotional or other abuse”. Complaints of controlling behaviour may in fact be explained by the fact that the man is frequently absenting himself without explanation because he is being sexually unfaithful, or is spending scarce family money on gambling, alcohol etc. Women writing for organisations such as transwidowsvoices.org have recorded that when transitioning to a female identity their male partners have accused them of emotional abuse when they have referred to them by their male name or allowed their children to call him ‘dad’.
13. Where a woman is a victim of domestic violence, she may not be ready to reveal that this is the case, fearing for her own or her children’s safety, or due to financial or accommodation worries. She may prefer to take the consequences of accepting the protection order rather than incur the wrath of her male partner by revealing to the police or magistrates the truth of their relationship. The proposed procedure risks pushing her into a situation for which she is not ready and which may in fact be harmful to her interests.
14. Procedural safeguards need to be built in to ensure that the alleged victim is truly at risk of suffering emotional or physical harm and to prevent the process from being abused.
Criminalisation of Vulnerable Adults
15. The combined factors of the lack of requirement of intent to abuse and the negation of a requirement for consent by the victim leads to the potential for the criminalisation of vulnerable adults with behavioural or learning disabilities.
16. For many adults with such disabilities, home is a safe place where they can vent their feelings of anxiety and frustration that they have to work hard to conceal from the outside world. This often is expressed by verbal outbursts and other behaviour that may in other be considered to be abusive. Whilst there is certainly more scope for providing support to the family members who live with such vulnerable adults, it is unlikely to be in the interests of either party to criminalise the vulnerable adult and may cause considerable upset to the family members.
17. We recommend that at s 30(5) the wording is amended to state “or who for reason of disability is a) unable to comprehend that their behaviour is abusive, or b) is significantly impaired in their ability to moderate their behaviour to refrain from the abusive conduct.”
15 March 2021
 We recognise that people of either sex can be a perpetrator or victim of abuse, but for simplicity give examples here of typical patterns of male abusive behaviour against a female partner.
 One of the barrister members of the Legal Feminist collective has been involved in four separate public law cases involving the existing Domestic Violence Prevention Notice (“DVPN”) regime. She stresses that these cases may not be typical or representative of the use of DVPNs; as in general few DVPNs end up as public law cases.
In each of these four cases, a DVPN was served upon a woman. In each case, the woman had previously been the complainant in a domestic violence case in the criminal courts, or the beneficiary of a non-molestation / occupation order in family law, or both.
In two of the cases, the service of the DVPN meant that both the woman and her child(ren) had to leave their home immediately to go to a hotel or hotel. In the other two cases, the woman left alone (one had no children, in the other case, the teenage children remained at home). It is noteworthy that the police had not completed the paperwork properly in two of the cases. In one case, no reason was given for the issue of the DVPN at all
Legal Feminist holds serious concerns that in at least some cases, the police have issued a DVPN against a woman who has already been a victim of domestic abuse, affecting children as well as women.
What are “sex based rights”? What do women mean by the phrase – and do we even have them?
A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.
What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.
They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.
So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.
So the ordinary rule for services is that everything is mixed sex, except where
“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.
S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.
It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.
In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.
Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).
(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)
Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.
And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.
So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?
The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”
The nineties were a particular hotspot for such arguments, as the marital rape case (R v R  UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”
The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”
None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”
What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”
This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’
For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.
If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.
For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.
While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”
While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.
While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.
The facts are thrown into particularly sharp relief this week, in the wake of the abduction and murder of Sarah Everard. The defendant, Javed Miah, walked behind the victim and bumped into her, asking her the time. After following her for a minute, he groped her bottom, pushed her to the ground, and moved his hand from her crotch up to her chest. The victim managed to connect an emergency SOS call on her mobile phone at which point he ran away.
Miah was given a six month sentence, suspended for two years. He will also have to complete 250 hours of unpaid work, complete the sex offenders rehabilitation programme, and sign the sex offenders register for seven years.
Women are justifiably outraged. How can a man push a woman to the ground, commit a sexual assault, seemingly intent on worse and yet walk free from court?
Other commentators can point you towards the Sentencing Guidelines and point out that the judge has followed them. The Mirror reported that the judge called the attack ‘sustained.’ That would make it a Category 2, Culpability B offence, carrying a one year starting point with a range of a community order to two years custody. With both the logic and the emotion of a Sudoku puzzle, the starting point of one year is then adjusted up for location and timing (alleyway, after dark), then down for previous good character and remorse, ending at a 9 month sentence. A further 30% off is applied for a guilty plea, bringing it down to six months. The judge must then consider mitigation and whether or not the sentence can properly be suspended. Any sentence of 2 years or less is capable of being suspended – and there are good reasons for this: if someone loses their home, job, relationship and future prospects they are more, not less, likely to reoffend. Feed the data here into the OASys machine and we have a defendant who has a secure relationship – ding! – with a job – ding! – and a home – ding! – and children, meaning community ties – ding! – which all feeds into the assessment of a low risk of reoffending.
So yes, assuming from the limited information in the reports that it was correctly categorised, the magistrate has applied the guidelines correctly. The defendant pleaded guilty, so we don’t even need to get into whether the prosecutor has done their job well: plainly they have. Defence lawyers are often blamed for ‘getting their client off the hook,’ but since this defendant had pleaded guilty, we can blame the defence for nothing more sinister than effective mitigation, which is the right of the most egregious criminal in the land. And of course, it would be absolutely wrong to suggest the judge was entitled to sentence the defendant for what he (probably) would have done if not for the victim’s actions, rather than for what he did do. We do not sentence people for things they didn’t do – even if we think they might have done had they had the opportunity. This is fundamental to the rule of law.
The purpose of this blog is not to reassure readers that the system is infallible. It is to make plain that the disquiet felt by women at sentences like this is not because women have failed to understand how the guidelines work, but because the guidelines do not reflect the terror that this type of offending causes to women going about our daily lives. We can reassure readers that such sentences are not the result of outright bias or corruption – but we would, ourselves, prefer an assurance that the Sentencing Guidelines will be updated and improved.
The words ‘conversion therapy’ to most people, evince the spectre of homophobic practices whose purpose is to ‘relieve’ a person of their sexual orientation, and replace it with something more acceptable to others or, occasionally, themselves. It is an attempt to alter an objective fact (sexual orientation) in order to realise a subjective belief (most commonly that homosexuality is a sinful moral choice). Legal Feminist is implacably opposed to such practices.
But current calls for the prohibition of conversion therapy are not confined to the protection of sexual orientation. The phrase has been repurposed. For the purposes of this campaign, the term ‘conversion therapy’ has been extended to include treatment for gender dysphoria, and in particular any treatment that fails to immediately affirm gender identity. This elision of gender identity and sexual orientation is a linguistic sleight of hand, designed to confuse the natures of the two. No discussion can flourish, no debate can find resolution, when the language used between the participants is not shared.
Other than in the most self-conscious academic circles, it is uncontroversial that every person has a sexual orientation. Sexual orientation – whether homosexual, heterosexual, bisexual or asexual – is almost universally accepted as a fact of people’s lives; any moral, religious and political arguments about it relate to its internal diversity rather than any question of whether it exists. A broad consensus has been reached that an attempt to change a person’s sexual orientation is neither realistic nor humane.
It is, however, far from uncontroversial to state that every person has a ‘gender identity’. The concept of gender identity cannot be taken as a commonly agreed fact of human life, any more than the concepts of God, transubstantiation or reincarnation. Those who believe in such things are entitled to hold and express their beliefs without suffering unlawful discrimination, but that entitlement does not confer the status of fact on those beliefs. To approach the rights that attach to belief in any other way would lead to an intractable set of conflicts.
Some people sincerely believe in gender identity. Others have given the matter little or no thought. Still others positively reject it, holding that the concept of gender identity is based on outmoded stereotypical expectations of how women and men should look and behave. The concept of being ‘transgender’ (as opposed to ‘transsexual’ or ‘transvestite’) is a relatively new one, and one whose meaning and scope are problematically vague. It is instructive that in the 2017 Memorandum of Understanding on Conversion Therapy in the UK (Version 2), signed by a number of therapeutic bodies, sexual orientation was defined with commendable clarity:
‘sexual orientation refers to the sexual or romantic attraction someone feels to people of the same sex, opposite sex, more than one sex, or to experience no attraction.’
By contrast, the best the authors could do by way of a definition of gender identity was painfully circular:
‘gender identity is interpreted broadly to include all varieties of binary (male and female), non-binary and gender fluid identities.’
Sexual orientation is a fact, gender identity is an idea. People who identify as trans must be protected from any coercive attempts to change their beliefs. But those who call for a ban on ‘conversion therapy’ in respect of gender identity are seeking to ensure a state mandate for a solely affirmative model of treatment of those presenting with gender dysphoria. That model is predicated on an expectation of interference. It is, if not unique, a peculiar treatment model that accepts, with total incuriosity, a patient’s self-diagnosis. Its foundation is an acceptance that the person has indeed been ‘born in the wrong body’, and must be recognised as the sex they believe themselves to be, without exploration of why they feel that way, or whether social norms are the real problem. It anticipates, and drives the individual towards, medical intervention, in the form of puberty blockers and cross-sex hormones. It frequently leads to irreversible surgical intervention in the form of elective mastectomy of healthy breasts, phalloplasty, the creation of a neovagina, breast implants, facial feminisation and so on.
Sexual orientation conversion therapy is a harmful form of interference, driven by the desire to subjugate reality to a subjective belief; a ban is a prohibition on that interference and the prevention of consequential harm. By stark contrast, a ban on anything other than the affirmative model of gender identity treatment would compel interference with objective fact in order to realise a subjective belief. It is precisely the irreconcilable nature of these two creatures which the misuse of language is designed to conceal.
The foreseeable legal and practical difficulties with the introduction of any legislation made on the basis of this conflation should give long pause for thought. For most individuals (ie: those who are not bisexual or asexual), the process of transition between a male and a female ‘identity’ will amount to a conversion of that person’s sexual orientation. This is not meaningless, or trivial; it can be seen in action in Iran, where gender transition is used as a ‘cure’ for homosexuality. The fact that the tenets of gender identity ideology are both embraced and legally enforced by a country with as poor a record on freedoms and human rights logically calls into question the endlessly repeated claim that the notion of gender identity is inherently progressive or liberal. It is not.
The law governs our obligations and restrictions, and must be expressed with absolute clarity. It must be readily intelligible to those not burdened with legal expertise and, in its prohibitive aspects, should never seek to rely on a presumed consensus in order to operate properly. A statutory prohibition which elides the fact of sexual orientation with the belief of gender identity is freighted with confusion, internal contradiction and the wholly predictable possibility of long, costly, distressing litigation whose only beneficiaries will be lawyers.
The battle lines have been drawn across the bodies of children. Proponents of the affirmative model advocate a pathway which enjoys the support of little reliable or objective evidence. They brook no contradiction that a child’s preference for toys, clothing and behaviour traditionally attributed to the opposite sex is a proper diagnostic basis for serious, life changing and sometimes irreversible treatment.
With a grey, depressing ineluctability, those juvenile bodies are overwhelmingly female. The recent spike in young people identifying as transgender most markedly affects teenaged girls, already a particularly vulnerable cohort. On the basis of information from the Tavistock NHS Clinic, referrals of young people have increased from 72 in 2009 to 2,590 in 2018, although this cannot represent the overall numbers because so little data is available from private clinics. The paucity of reliable data in this area (including the numbers of people identifying as trans, engagement in any process of transition, medical intervention – whether prescribed or not, surgical intervention, desisting and de-transition) should be treated as a cause for the greatest concern and caution, rather than a basis for legally enforcing an ‘affirmative’ approach.
The proposed restrictions on clinical and therapeutic practitioners will be draconian: treatment to address gender dysphoria will be confined to those who believe in gender identity and are prepared to relinquish any critical enquiry into their patient’s reported difficulties. The enforcement of an exclusively affirmative approach ignores a number of factors which are, or may be, highly relevant in assessing a patient’s suitability for medical/surgical treatment. Girls with neuro-diverse conditions such as autism, ADHD and ADD frequently suffer from profound discomfort with the social behaviour and expectations traditionally regarded as ‘feminine’; compounding this, they are frequently diagnosed late, or missed entirely because the prevalent diagnostic model is still based on male symptoms.
The high incidence of eating disorders and self-harm amongst teenaged girls cannot be ignored when an assessment is being made of a patient’s sense of alienation from their own body. Peer pressure (particularly in the context of a heavy reliance on social media), and social contagion are also highly relevant factors which need a great deal more scrutiny before the purely affirmative approach can be regarded as safe. The decision-making process for people under 25 should also be firmly placed in the context of their neurodevelopment; the frontal cortex of the brain is not fully developed until the early-mid 20s, leaving young people vulnerable to a limited capacity for consequential thought. Decisions which are both life-changing and potentially irreversible need to be taken with the greatest of care and the most reliable and balanced information possible. The affirmative-only approach not only falls far short of fulfilling this need, it advocates away from doing so.
The same voices to call for the affirmative-only approach are swift to dismiss the experiences of those who desist or de-transition as statistically insignificant. It is an easy claim to make, but difficult to back up with anything other than rhetoric. Those who detransition often don’t return to the therapists and doctors who originally treated their dysphoria. Because the experience of transition is treated by proponents of the affirmative model exclusively as a cause for celebration, and is heavily defended from any more enquiring approach, it is likely that vulnerable children and teenagers will feel a powerful reluctance to ‘come out’ about their change of heart, and an even greater reluctance to bring that decision to someone in authority who so clearly advocates for transition as being overwhelmingly beneficial in its nature. Consequently, the gaps in gathering crucial data about those who de-transition or desist are too significant to make any reliable assessment. Enforcing a model when the rates of success and failure are entirely unknown, and the metric of success and failure remains both nebulous and ideologically driven, is reckless in the extreme.
Garden Court Chambers is a prominent and highly regarded set of barristers’ chambers based in Lincoln’s Inn Fields, London. Garden Court prides itself on its “progressive” attitude to law: for example, its members will defend but not prosecute, in common with other “progressive” sets. Its motto, “Do right, fear no one,” reflects its stated commitment to “fighting your corner, no matter how formidable the opponent might seem”.
So how has such a set found itself at the heart of a legal challenge from one of its own barristers, who accuses it along with Stonewall of discriminating against her as a woman and a lesbian?
Stonewall has recently attracted some accusations of homophobia for quietly redefining “sexuality” to mean an attraction to a gender, not a sex. Stonewall’s definitions, from their glossary, are these:
Homosexual: This might be considered a more medical term used to describe someone who has a romantic and/or sexual orientation towards someone of the same gender.
Gender: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth
Gender identity: A person’s innate sense of their own gender, whether male, female or something else (see non-binary below), which may or may not correspond to the sex assigned at birth.
So for Stonewall, being L, G or B has nothing to do with a person’s sex, but rather means one is attracted towards a person’s “innate sense” of masculinity or femininity “which may or may not correspond to the sex assigned at birth.”
The idea that femininity is innate in women – and by extension, that unfeminine women are not women, and that the culturally determined status of women globally is not attributable to patriarchy but innate to women ourselves – is offensive to many women. Many lesbians (and gay men) are aghast at the proposition that sexual orientation derives from some sort of soul-based echolocation and disregards biological sex.
One of those women is Allison Bailey, a criminal defence specialist at Garden Court, who is herself a lesbian. She sets out in the background to her action that she is the daughter of Jamaican immigrants, a survivor of childhood sexual abuse and an active anti-racism campaigner who spent a night in a San Francisco jail for a peaceful protest in the wake of the acquittal of the officers involved in the beating of Rodney King – in summary, a woman who would seem to typify Garden Court’s ethos.
She was involved in setting up the LGB Alliance in 2019 to advance and protect the rights of lesbians, gay men and bisexuals to affirm themselves as attracted to members of their own or both sexes. LGB Alliance dissents from Stonewall’s position on the definition of homosexuality, accusing Stonewall of homophobia. That has upset Stonewall.
So far, so perfectly ordinary: private citizens are well within their rights to be involved in whatever social and political voluntary work they wish within permissible legal confines, without interference from their employers or their colleagues.
However, when Allison tweeted in support of the LGB Alliance immediately following its first public meeting, Garden Court hastily put out a disclaimer distancing itself from Allison and her views, instigated a disciplinary procedure, and (she alleges), restricted the flow of work to her, causing her income to drop considerably. Allison says this was done under pressure from Stonewall.
In her fundraiser, she sets out how in response to her Subject Access Requests, her chambers replied with four lever arch files of documents, while Stonewall blandly denied any correspondence about her. That, as she knew from the documents her chambers had provided, was untrue. She pursued the inquiry, and this has resulted in her bringing an action against both Garden Court and Stonewall.
The legalities of the action are worth considering. She alleges that Garden Court discriminated against her as a woman and as a lesbian, so on the basis of the two protected characteristics of sex and sexual orientation. At the same time, she says that Stonewall engaged in “prohibited conduct” under s.111 of the Equality Act by instructing, causing or inducing Garden Court to discriminate against her. We are not aware of any other s.111 case that has been reported, so this may be a legal first.
This week, Stonewall and Garden Court applied to the tribunal to strike out her claim. To succeed, they would have had to show that Allison’s claim was unarguable – that it was so ill-founded that it stood no prospect of success at trial. When a strike out application is heard, the judge has to take the Claimant’s case “at its highest” – because if it cannot succeed even at its highest then it is unarguable.
Garden Court filed a 120 paragraph witness statement in support of its contention that the claim was unarguable. A cynic might suggest that anything that takes 120 paragraphs to refute or undermine is plainly arguable. Garden Court argued that the claim could not succeed on merits, and Stonewall argued that the s.111 point could not succeed as there was no relationship that could meet the requirement of instructing, causing or inducing. Allison asked for permission to amend her claim.
In order to establish whether a claim is arguable or not it is inevitable that some of the evidence will have to be referred to. During this hearing, it emerged that Stonewall had leaned hard on Garden Court, writing emails which were characterised by the judge as a “threat” of reputational damage to Garden Court, including that for Garden Court to continue to support Allison “puts us in a difficult position with yourselves”, that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people”, and that Garden Court must take disciplinary action against Allison or, as summarised by her barrister, face the reputational consequences.
Unsurprisingly, the judge concluded that it was at least arguable that this was “inducing” Garden Court to take the steps against Allison Bailey which it did. She also concluded that the Diversity Champions Scheme provided the requisite relationship, and that Allison had a “more than reasonable” argument that the steps taken amounted to discrimination. She refused the strike out application and granted the application to amend.
It remains to be seen whether the Employment Tribunal will conclude in June that the actions of Garden Court and Stonewall were actually unlawful rather than merely astonishing.
In the meantime though, the question arises as to how much power and influence a charitable organisation should have over individuals with whom it disagrees. Even the most zealous defender of the Stonewall position would, we think, baulk if equivalent pressure were applied by another large and well regarded charity firmly embedded in the establishment – for example, the Church of England. If the Church were to lean as hard on an employer (or chambers) to disown a member for setting up an LGB organisation, there would quite rightly be uproar from Stonewall’s supporters. No charity, no matter how well intentioned, well financed or well regarded, should be able to use a diversity scheme to exert pressure which is at best (on Stonewall’s case) intrusive and at worst (on Allison’s case) unlawful.
However, Jackie Weaver, who acted as clerk for the meeting, is not an officer of the parish council. She is the CEO of the Cheshire Association of Local Councils, a branch of the National Association of Local Councils (“NALC”) who represent and provide training and support to their membership of parish councils. National Association of Local Councils (nalc.gov.uk)
While Jackie Weaver did not have authority to call the meeting, she was there supporting two councillors who did have lawful authority to call an extraordinary meeting where the chair refused to do so.
Handforth’s Democracy Problem
It seems that the councillors’ actions became necessary because the chair of the council had suspended the original clerk (also called the “proper officer”) who would normally set the agenda and summon councillors. It is said that he appointed himself as interim “clerk”, allegedly making unlawful decisions on behalf of the full Council. If this is correct then he effectively removed his fellow councillors’ democratic right to vote on decisions as a result of refusing to summon them to a meeting. Handforth Parish Council
How Parish Councils Work
Whatever “Aled’s Ipad” may have insinuated, Jackie Weaver would not only have read and understood the Parish Council’s Standing Orders, but may have had some involvement in writing/reviewing them, as her employer, NALC, publishes the model “standing orders”, reflecting statutory requirements, adopted by many parish councils. Revised Model Standing Orders – LALC – LALC
A parish council is an arm of government, albeit the lowest tier, with responsibility for making lawful, transparent decisions to spend local tax-payers money in accordance with the law and for the benefit of those in the parish.
The decisions of a parish council are only lawful where they are made by a majority vote of full council at a properly convened, quorate meeting held in public (or where the full Council vote in this way to delegate specific powers to a committee of at least three councillors). Statute, as reflected in a mandatory provision of every parish council’s standing orders, prohibits decision-making powers being delegated to any single officer, including the chair. Decision-making by single councillors is unlawful. Decision-making between meetings – whether of the full Council or a committee or sub-committee – is unlawful. (Save for certain specific, limited, decision-making powers delegated by the full Council to the clerk, who is an employee, or “officer” of the council.)
Meetings regarding council business are held in public. While the public cannot vote, they can attend, read the background papers, and watch their councillors debate and vote. In certain circumstances, strictly limited by law, press and public may be excluded for specific agenda items. However, such votes will be recorded as such in the minutes, and where there is no blanket exemption, councillors must vote on whether exclusion is necessary or desirable.
The Limits of a Parish Council Chair’s Power
Like a jury, decision-making must result from a majority vote of all members present, each member must decide for themselves, and no single member (whether the chair of the council or the foreman of the jury) is the “boss” of the other members.
The additional powers of a parish council chair are limited to presiding over council meetings to ensure all councillors have the opportunity to speak, taking votes of fellow councillors (sometimes with a casting vote), and signing minutes. The additional powers of a jury foreman are limited to taking the vote of fellow jury members and communicating this to the judge.
If a jury foreman suggested he had the power to declare people guilty independently of the rest of the jury and/or outside of a courtroom setting in response to a judge, most people would find this implausible. In contrast, however, the limits of the power of individual parish councillors, particularly the chair of parish councils, are not as widely understood.
Parish Clerks: An Independent Role
The union representing parish clerks, The Society of Local Council Clerks (“SLCC”), advises clerks that their primary responsibility is to advise the council on whether its decisions are lawful, and provide unbiased information to councillors before they debate and vote. Officially, the role requires the clerk to take instructions from the council as a body, as the clerk is not answerable to any individual councillor (not even the Chair). The clerk is supposed to demonstrate independence, objectivity and professionalism with regard to council business. It is also the clerk, as the council’s responsible financial officer, who must vouch for the lawfulness of the Council’s decisions when signing the financial and governance statements for the annual audit.
However, while on paper they are the chief officer (albeit often the only officer) of a parish council, in practice clerks are often isolated, sole employees, working part time hours for amateur bosses, many of whom are retirees, who have nothing to lose from acting beyond their powers. They have no job to lose; and they are playing with the house’s money, or at least funded by local council tax payers money and/or relying on insurance claims to cover any consequences.
When Parish Councillors Go Rogue
While unlawful decisions may have adverse consequences for the council itself, as far as councillor misconduct is concerned, there is a “light touch” framework for local government ethical standards under the Localism Act 2011. The Standards Board for England was abolished on 31 March 2012, and from that date English local authorities were no longer required to have standards committees to adjudicate on breaches and decide upon sanctions. The Act also removed the ability for councillors to be suspended or disqualified for a range of misconduct issues.
The Committee for Standards in Public Life highlights the adverse consequences arising from the current lack of effective sanctions available to underfunded district council monitoring officers. The cost of investigating a breach of the councillors’ code of conduct may be disproportionate to the benefits (which may now be limited to publicising the breach, requesting an apology or requesting training is undertaken), even where there are no confidential issues which prevent publicity of the breach.
In any case, both parish clerks’ and district council lawyers’ resources and working hours tend to be budgeted on the basis of the time it takes to do things when councillors are listening to advice from clerks and monitoring officers, abiding by their Code of Conduct and endeavouring to act lawfully. Allocated working hours and budgets tend not to take into account the time necessary for resisting the making of, or taking remedial action after, unlawful decision-making.
An SLCC survey of part-time Clerks revealed that, taking into account the hourly rate of pay and actual hours worked compared to contracted hours, there are a disturbing number of council clerks who are working for less than the minimum wage. An SLCC survey of monitoring officers indicated that 11% of those who responded were unable to commit resources to supporting parish councils with councillor behaviour issues with a further 49% only becoming involved when there is a complaint.
Jackie Weaver’s Intervention is a Privilege Not a Right
While NALC offer vital training and support to councillors and clerks where councillors vote to spend money on membership and training, it is important to realise that – rather than her being “parachuted in” from a higher tier of local government – Jackie Weaver’s services were available to the Handforth Parish Council only because councillors voted to pay for membership of the Cheshire ALC. Not all councils have the undoubted benefits of NALC guidance and resources.
Whilst this zoom video looks like it was scripted by the late, great Victoria Wood, these people are our politicians. They have signed a Code of Conduct and hold public office. They are not the cast of “Inside Number Nine” or members of a hobby group arguing over how to spend their own subs. As members of a Council, they have control of public money.
The Parish Clerks’ Predicament
The clerk, or proper officer, is an employee of the Parish Council. Their absence from the meeting, because they had been suspended by the chair (reportedly acting unlawfully), was the catalyst for the now legendary intervention of Jackie Weaver.
An SLCC survey of 800 clerks suggests that 15% of parish councils experience serious councillor behavioural issues such as bullying and disrespect towards other councillors or the clerk, and 5% of parish councils experience these issues to the extent that they are unable to carry out some or all of their proper functions. SLCC were quoted in a 2019 Committee for Standards in Public Life report:
“The impact often includes serious ill health, loss of employment, loss of confidence and a long-term detriment to their personal and professional lives. The parish sector experiences a high turnover of staff each year. In some areas of the country this can be up to 20-30% of clerks and a large element of this can be attributed to the underlying behaviour issues. We are aware of cases where the issues are long standing and repeated year on year, with multiple cycles of behavioural issues, loss of personnel and recruitment taking place.”
Clerks may also be put under pressure to acquiesce to unlawful decisions by councillor(s). While this may not always manifest in the dramatic intervention of Jackie Weaver or her colleagues from the ALC, this should be of wider concern, both from a democratic and an employment law point of view.
Parish Clerks’ Pay and Conditions: A Feminist Issue
The vast majority of parish clerks are female. Many of them are women who need to seek out these flexible, local, part time jobs to fit around caring responsibilities. Like Jackie Weaver, they may be patient women trying to ensure compliance with the law. Unlike Jackie Weaver, their line managers may be their local equivalent of the Handforth chairman or “Aled’s Ipad”.
Handforth Parish Council documents indicate that the Chair and Vice-Chair had been preventing councillors meeting and voting for six months. Thus literally preventing democratic debate. While these disruptive men purported to be acting in accordance with the law (“Read the Standing Orders! Read them and understand them!”), they attempted to prevent debate by applying the law against public policy and without following democratic principles.
There is a principle that law should serve the public interest: “all enactments are presumed to be for the public benefit”…“this means that the court must always assume that it is in the public interest to give effect to the intention of the legislator, once this is ascertained.” Standing orders, and the statutes from which they derive, exist to enable democratic debate, not prevent it. Holding fast against the misplaced confidence of rogue councillors attempting to disrupt a meeting by shouting, as at Jackie Weaver, to read and understand (their misinterpretation) of the very laws which were drafted to enable debate is something that should be above a parish clerk’s (often de facto sub-minimum wage) paygrade, but unfortunately it too often is not.
Democracy – often represented by a lone, overworked, underpaid, female parish clerk – has to have authority over specious misinterpretations of the standing orders. But how, realistically, can this be achieved?
Democracy May Be The Only Solution
The Committee for Standards in Public Life concluded their January 2019 report by recommending reforms to improve standards in parish councils. In the meantime, the last effective sanction left to deal with parish councillor misconduct is the ballot box. You see, in one sense, it is right to say “Jackie Weaver has no authority” in that she has no authority to get rid of those rogue councillors permanently. Low voter turnout means that many parish council seats are uncontested and serial misconduct is allowed to continue. It is therefore up to electors to vote in local elections to remove rogue councillors, and scrutinise their parish council’s decisions. (Unlawful decisions of the Parish Council as a whole, can be brought to the attention of the council’s External Auditor during the annual audit process.)
Exercise your democratic rights. Get involved with local democracy by standing for election and voting in elections at every tier of government. Look at the NALC campaign to recruit a more diverse range of councillors. Elections — #MakeAChange (nalc.gov.uk)
Don’t make the mistake of assuming that the effective restoration of democracy by the likes of Jackie Weaver is inevitable or even likely. She is a rare and precious creature. Local government democracy needs more women of substance like Jackie Weaver. And it needs us all to be more Jackie Weaver, and assert our authority for the sake of democracy.
The response to my call for action, asking people to submit FOIA requests to public bodies asking them about their dealings with Stonewall, has been amazing – huge thanks to everyone who has taken part so far. Responses are starting to come in, so it’s time to provide some guidance about what to do next.
If the authority has provided all the information you’ve asked for, all you need to do is update the status of your request to “I’ve received all of the information.” That’s it – the information is now there for all to see, and you’ve made a significant contribution to bringing Stonewall’s influence over our public authorities out into the daylight. Thank you.
If the public authority has refused to provide the information, or provided partial or unsatisfactory answers, the next step is simple. You write back to them as soon as possible (but at any rate within 2 months) asking for an internal review.
You can do this through the Whatdotheyknow.com, by clicking on the “Actions” button at the bottom of the page showing your request, and then choosing “Request an internal review.” (Please do do it this way, rather than just emailing the body – so that the answer to the request for internal review is also displayed on Whatdotheyknow.com.)
That brings up a standard letter that goes like this:
Dear [public authority]
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of [public authority]’s handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
[GIVE DETAILS ABOUT YOUR COMPLAINT HERE]
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
So all you have to do is write something brief about why you are dissatisfied with the information provided in place of “[GIVE DETAILS ABOUT YOUR COMPLAINT HERE],” preview and check your message, and then send it. If the response to your request gives a reference number for future communications, paste that in – and if they give an email address for correspondence, add that in after “the person who conducts Freedom of Information reviews.”
It doesn’t actually matter very much what you write about why you are dissatisifed with the response. If they say they don’t have the information, and you don’t believe them, you could say that. If they say it would be too expensive to give it to you, and you don’t think that can be right, you can explain why. If they say the information is legally exempt from disclosure, and you think they are wrong, you could explain why you think that.
But really, the main thing is to get someone more senior to have another look at the decision – and to do the thing that you have to do to found a complaint to the Information Commissioner. If you write a persuasive argument and actually change their minds, so much the better – but it’s ok, too, just to write “I don’t accept that the information is exempt/too expensive to provide/ not held.”
I’ll do a worked example. Nottingham University has provided an unsatisfactory response to Ben Green’s request. So Ben could click on the “Actions” button, choose “Request an internal review,” and then complete the standard letter so that it looks like this:
Dear Nottingham University
Your reference 429001
Please pass this on to the person who conducts Freedom of Information reviews, firstname.lastname@example.org.
I am writing to request an internal review of your handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
Your answer to my request (3) claims that because the only communications received from Stonewall are generic communications sent to a large distribution list, it would be unduly costly to check all the inboxes in the University that might have received such communications. I do not accept that this is a real difficulty. I do not require to see multiple copies of the same generic communication as it has landed in many different inboxes: it will be perfectly adequate to examine a single inbox that is on the relevant distribution list, and provide copies of all the generic emails that have been received in that inbox.
I do not think your approach to this question is consistent with your duty under section 16 of the Freedom of Information Act to provide advice and assistance to me as a person who has requested information from you, and I would ask you to have careful regard to that duty in dealing with this application for review. In particularly, if you consider that taken literally my request would put you to excessive cost, but you can see a different way of formulating my request that would make it possible for you to respond in substance, then you should suggest that reformulation and offer to respond accordingly.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
If you have questions about how you should draft your request for an internal review, please post them here as comments, with a link to your request. I will do my best to answer them, or at least to answer enough of them to provide some general guidance. If in doubt, just write a very simple letter saying you are dissatisfied with the response, and want to request an internal review.
Many of the 850-plus Stonewall Diversity Champions are public authorities, which means they have to respond to requests under the Freedom of Information Act . So let’s ask them about their dealings with Stonewall – it only takes a couple of minutes.
My previous post suggested that Stonewall had gained an unhealthy level of influence over large employers, especially public authorities.
Many of the 850-plus Stonewall Diversity Champions are public authorities. That means they have to respond to requests for information under the Freedom of Information Act – which is how I was able to write in such boring detail (sorry) about Edinburgh University’s submission to the Workplace Equality Index.
One way of putting some pressure on public bodies to withdraw from these schemes is just to force them to reveal the detail of their dealings with Stonewall. So I’m proposing a simple campaign: let’s send all the public authorities on Stonewall’s list of “Champions” FOIA requests asking them for information. (Though I’m inclined to suggest leaving off the NHS at the moment, for obvious reasons.)
If you can spare a few minutes to participate, here’s what you do.
3. Go back to https://www.whatdotheyknow.com/. Type the name of your public authority into the search box. You may get a couple of results (e.g. searching for “GCHQ” returns “Government Communications Headquarters” and also “Intelligence and Security Committee”), but click on the name that best describes the one you’re looking for.
4. Scroll down the results page a short way to check that there hasn’t been a recent #DontSubmitToStonewall request made to that body. For example, if you search for “Northumbria University” and then click on the name of the body, this is the first thing you see:
So they’ve had a request already – they don’t need another. Choose a different public authority, and try the same thing again. You won’t have to scroll very far to be sure – any of these requests will have been made in the last couple of days.
(Stonewall’s list is helpfully divided into categories, and mostly it will be fairly obvious which are public authorities and which not: every single organisation categorised as “local government” is a public authority; none of those on the “consumer goods and retail” list is; most on “financial services” aren’t, but of course the Financial Conduct Authority and the Financial Ombudsman Service are. If in doubt, search on https://www.whatdotheyknow.com/ – if you find them, they’re a public authority; if you don’t, choose another.)
5. Once you’ve found a public authority that hasn’t yet had one of these requests, click on “Make a request” by their name.
6. The site gives you a blank request form starting “Dear [name of authority].” Underneath that, paste the following text:
This is a request under the Freedom of Information Act 2000 (FOIA). Please provide any information that you hold answering to any of the following descriptions:
1. Any application you made in 2019 or 2020 to be a “Stonewall Diversity Champion” or to be included on Stonewall’s “Workplace Equality Index,” including any attachments or appendices to those applications. Please redact personal details if necessary.
2. Any feedback you received in 2019 or 2020 from Stonewall in relation to either application or programme.
3. Any other communication you have received from Stonewall in 2019 or 2020 unless privileged or otherwise exempt from disclosure (but if you claim privilege or exemption in relation to any material, please say in broad terms what the material is and the basis on which you claim to be entitled to withhold it).
4. Full details of any equality impact assessment you carried out connected with any of these applications (including any equality impact assessment carried out prior to an earlier application of the same kind, if no further assessment was done).
5. Details of the total amount of money you paid to Stonewall (i) in 2019; (ii) in 2020, whether or not as payment for goods or services.
6. Whether you intend to continue your membership of any Stonewall scheme in the future, and if so which.
There’s also a box for a summary of your request above that, so paste in there:
Information about your dealings with Stonewall #DontSubmitToStonewall
Please do include “#DontSubmitToStonewall” to make it easy to find a complete list of these requests in the future, and also to help guard against the same authority getting lots of duplicate requests.
7. Ignore the warning that your request is getting long (it’s fine – it’s focused and perfectly fair), and click on “Preview your public request.” Check everything is in order – including the all-important hashtag. Once it is, click on “Send and publish your request.”
8. That’s it for now. I’ll post again in early March (when the responses to these requests should start coming in) with guidance about requesting an internal review, if your request is refused or not satisfactorily answered.
Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.
Stonewall is an LGBT charity and lobbying group that started small, edgy and rebellious in 1989. It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.
Stonewall’s employer programmes
Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme.
More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé; Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.
It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single oneof the top 100 employers on the Workplace Equality Index is also a Diversity Champion.
Qualifying for the Workplace Equality Index
So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers? Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, Mr M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”
The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections:
1. Policies and benefits
2. The employee lifecycle
3. LGBT Employee Network Group
4. Allies and role models
5. Senior leadership
8. Community engagement
9. Clients, customers and service users
10. Additional work
Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for. The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.
Sampling the submission
Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks:
Does the organisation have a policy (or policies) which include the following? Tick all that apply.
A. Explicit ban on discrimination based on sexual orientation
B. Explicit ban on discrimination based on gender identity and gender expression
C. Explicit ban on bullying & harassment based on sexual orientation
D. Explicit ban on bullying & harassment based gender identity and gender expression
E. None of the above
The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies.
There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean. If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it.
The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.”
Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.
Question 4.5 asks:
Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?
The University describes the training:
A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.
Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.
We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.
This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around.
There are pages and pages of this stuff. The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.
One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply. This sample from section 1 (“Policies and benefits”) is representative:
[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.
Submission without reservation
You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this:
You pay for lots of Stonewall training.
You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training.
You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way.
Stonewall set you a lengthy open-book examination on how well you’ve done that.
You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc.
Stonewall mark your submission and give you feedback on areas on which you could improve your compliance with their every demand, very likely involving more Stonewall training.
You do the same again next year.
It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?
What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?
You might think employers would discern a significant reputational risk – not only from being associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride.
But there are concrete legal risks too.
Judicial review of policies
If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies. (Though your staff may care; I’ll come to that shortly.)
But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review. You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.
In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court.
A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance.
In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.
Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”
These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be in than the reality of how the law is.
Judicial review of participation in Stonewall’s schemes
Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both.
A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review.
That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:
Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk.
As a public body, we should know what’s going on with the CPS.
Has Stonewall trained CPS?
In fact, thanks to Mr Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’ If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.” Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.
As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:
Has the organisation done any further work in the past year to improve the working environment for LGBT staff?
The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all functions, private or public.
In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion:
The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation.
The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.” Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well.
In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.
Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.
Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.
If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.
Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.
But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.
If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system.They are not entitled to do that:disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)
Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man.
There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.” It is the only equality policy the University has which is specific to a single protected characteristic.
Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff.
Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status.
In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women. And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.
Workplace health and safety obligations
Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.
Duties to service clients, service users etc.
The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful:
A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.
A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.
A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.
An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.
A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.
Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.
Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly.
If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.
But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm.