My body, my choice: privacy, consent and compulsion in personal care

Fortnum v Suffolk County Council is a first instance decision of an employment tribunal sitting in Bury St Edmunds that is often mentioned^⁠1 in support of a claim that trans women trans-identifying males already have a right to be treated in all respects as women, even where that impinges on the privacy and dignity of natal women. So far as I can discover, the decision has so far escaped the attention of legal commentators. That’s not surprising, because decisions of the employment tribunal have no weight as precedents, so commentators rarely bother analysing them.^⁠2 This one is being treated in some quarters as if it were binding, though, so let’s take a look at it. 

What did the employment tribunal decide? 

Ms Fortnum was a trans-identifying male woman employed by the Council as an assistant Day Care officer. Among her his duties she he was required to provide intimate personal care to male and female service users. One of those service users was a girl or woman (it’s not clear from the judgment whether she was an adult or not) with learning difficulties, referred to as DL. The judgment records that she he had done so satisfactorily and effectively, and that “Neither DL nor her mother knew that the applicant was a transsexual female.” That is ambiguous, but presumably the tribunal meant that DL and her mother believed Ms Fortnum to be a natal woman. 

On 25 May 1999, about a month before she he underwent gender reassignment surgery, Ms Fortnum was told that she he was no longer to provide intimate personal care for DL, because DL’s mother had expressed a wish that only female members of staff should attend to her daughter’s intimate care.

Ms Fortnum was upset and offended, and sued the Council for discrimination, apparently limiting herself himself to a complaint of discrimination on grounds of gender reassignment.  The Council argued that there was a genuine occupational qualification for the job (a “GOQ”); and also that Ms Fortnum had not suffered any detriment in being directed not to provide intimate personal care for DL. 

The tribunal dealt with the latter point shortly: 

We find that submission too sanguine. The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman; she [sic] was treated differently.

So far as the defence of a GOQ was concerned, the tribunal appears to have thought that the direction to Ms Fortnum to stop providing intimate personal care for DL was direct discrimination on grounds of gender reassignment; and that that discrimination was not excused on the basis of a GOQ, because Ms Fortnum had previously been providing those services satisfactorily.

Did the employment tribunal get it right? 

I don’t think it did. From the point of view of employment law, there were three questions the tribunal needed to address: first,  was the Council’s decision made on the grounds of Ms Fortnum’s sex, or her his gender reassignment?  Secondly, was the Council’s decision to her his detriment? Thirdly, if so, could the Council make out a GOQ defence? But in the background to the employment law questions there were also issues – apparently wholly overlooked by the tribunal – about DL’s right to bodily autonomy, and the serious nature of any decision to override her choices about who should provide her intimate care.

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she he hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her his gender reassignment, we ask how the Council would have treated someone the same as her him in every respect, except that they weren’t going through gender reassignment; that is to say, a man without the protected characteristic of gender reassignment.  

But once you identify that as the question, it’s obvious what the answer is: the hypothetical Mr Fortnum would have been stood down from those duties just the same as the real-world “Ms” Fortnum was. So the tribunal was wrong about this: there was no gender reassignment discrimination. The true reason the Council removed these duties from Ms Fortnum was that she he was male:^⁠3 it was discrimination on grounds of sex. 

If the same facts occurred now, so that they were governed by the interplay of the Gender Recognition Act 2004 and the Equality Act 2010, the question whether the discrimination was on grounds of sex or gender reassignment would depend on whether the claimant had a gender recognition certificate or not. If not, then the discrimination would be sex discrimination for the reasons given, because she he would still be legally male. If she he did have a GRC, she he would be deemed female for the purposes of the EqA, and the discrimination would be on grounds of gender reassignment.^⁠4

Was there a detriment?

There is no finding in the judgment that Ms Fortnum’s hours or pay were reduced as a result of the decision to remove her him from the particular duties in question: her his complaint was founded solely on the affront and upset that she he suffered because of that decision. The tribunal thought it was obvious that there was a detriment. 

This, to my mind, is at the heart of the case. The test for a detriment is stated by the Court of Appeal in Shamoon v Chief Constable of the RUC [2003] ICR 337: 

This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank pic v Kapur (No z) [1995] IRLR 87.

I think the tribunal was wrong on this question, too, and clearly so. Who provides intimate care is a matter of individual consent to actions that would, in the absence of consent, be criminal assaults. A woman is entitled to withhold consent for intimate care to be provided by male people, however they identify, and for the employer of carers to respect that. It is unreasonable for a man to be offended because a woman declines to receive intimate personal care from him, and it is equally unreasonable for a person with a male body who identifies as a woman to be offended for the same reason. Ms Fortnum’s affront seems to have arisen out of her employer’s refusal to instruct or permit her him to commit a criminal assault on a disabled service-user. An “unjustified sense of grievance” seems a precisely apt description for what she he felt. 

Was there a valid GOQ defence? 

If I am right about detriment, this doesn’t arise: there was no detriment, so no discrimination; so the Council didn’t need to prove a GOQ defence. 

But it doesn’t arise for another reason, too. It appears from the judgment that Ms Fortnum complained of gender reassignment discrimination only, and not sex discrimination. So even if I’m wrong about detriment, her his claim should have been doomed to failure: she he hadn’t suffered gender reassignment discrimination, which she he did complain about; and she he made no complaint of sex discrimination, which (assuming the detriment point in her his favour) she he had suffered.  

But for completeness, let’s suppose both that I’m wrong about detriment, and that Ms Fortnum had complained of sex discrimination, too. Would the Council’s GOQ defence have succeeded?  

On this point, I think the tribunal was right, but for the wrong reason. A GOQ defence was available under the SDA where the job needed to be held by a woman to preserve decency or privacy; but GOQs relate to the whole job, not specific tasks. If the whole job had been caring for DL, the job might have acquired a GOQ when DL, or her mother on her behalf, withdrew consent to have intimate care provided by someone who was biologically male. But given that Ms Fortnum could simply be reassigned to other duties, there could not be said to be a GOQ for her job. So if there had been a real detriment, and if Ms Fortnum had complained of the correct kind of discrimination, I don’t think a GOQ defence would have been available to the Council.

The fact – relied on by the tribunal – that Ms Fortnum had performed these particular tasks satisfactorily for some time had no bearing: consent to intimate care is not irrevocable once given. It was open to DL to withdraw her consent to having the services provided by someone who was biologically male, and she had done so.

Conclusion

Fortnum is a muddled and erroneous first instance decision that was (perhaps surprisingly) not appealed by the Council. It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.

Finally, a practical note. Cases like this are liable to cause women anxiety about the extent to which they are entitled to have their bodily privacy respected, so it is worth spelling this out. A woman is  entitled to insist on any intimate treatment or service – from bra fitting to catheterisation – being provided by another woman, and to decline care (etc.) offered by a trans woman. A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.^⁠5 No means no. 

¹ Sometimes under the name “DA v Suffolk County Council”; in any event, case number 2000 ET/1501602/99.

² There doesn’t even seem to be an official transcript of the judgment in existence: I have been working from a transcript prepared by the claimant and her legal adviser, and published by Press for Change:  http://www.pfc.org.uk/caselaw/DA-v-Suffolk%20County%20Council.pdf

³ The Gender Recognition Act 2004 had not yet been passed, and at the time of the act complained of, Ms Fortnum had not undergone surgical transition, so there was no basis on which she could credibly have argued that as a matter of law she was female.

⁴ Against this, on parallel facts arising now, Chief Constable of the West Yorkshire Police v A [2005] AC 51 might be relied on for an argument that the trans woman should be treated by the law as female. My view in short is that that argument should fail. The claimant in West Yorkshire Police was a “post-operative transsexual,” and there is significant reliance placed in the House of Lords on how complete her physical transition had been. It is also relevant that West Yorkshire Police was decided before the Gender Recognition Act had come into force: there is now a statutory scheme in place that tells us whether, and for what purposes, a trans woman is to be treated as legally female.

⁵ Whether if the service provider refuses to provide an alternative, a woman would have a discrimination claim of her own is a question for another day; but what is beyond any possible doubt is that she is entitled to decline.