June, 2021 -

“You say objective, I say subjective”, what is the legal test? A blog about harassment and protected beliefs

Before and after the recent Forstater v CGD (2021) case, there was a torrent of speculative commentary about what this meant both for trans people and gender critical people when it came to harassment under section 26 Equality Act 2010.

On 27th April 2021, barrister Robin Moira White wrote in the Independent:

“It will mean, for example, that a person will be permitted to misgender a trans work colleague, indeed be legally protected if they do so. This puts employers in an impossible position where one employee is entitled to harass another, likely making the employer liable to the harassed employee for discrimination. It is both morally wrong and practically unworkable: employers will not be able to meet their duty of making workplaces safe to work in or public spaces safe to visit. “

Thankfully, this pessimistic prediction was proved wrong. The Employment Appeal Tribunal stressed that its judgment didn’t mean open season for people to harass trans people. It could have added “and the same goes for gender critical people.”

In practice, what Forstater established was that both gender identity theory and gender critical feminism are protected as beliefs under s10 EA.

But what does that mean in practice regarding protection against harassment? Is “misgendering” (calling a transperson by a pronoun that signifies their biological sex) or calling someone a TERF (an offensive term to many) or “bigot” unlawful harassment?

The classic and annoying lawyers’ answer… it depends!

So how to decide if something is unlawful harassment?

First of all, some important caveats: I am talking about civil law, not criminal law. This isn’t about hate crime or other forms of harassment (say under the Protection from Harassment Act).

This piece is not about whether it is right or wrong that something is considered unlawful harassment, but my best guess about what a court or Employment Tribunal will determine.

Context

This guidance is not relevant in all situations, only for those set out in the Equality Act. So it applies in work, education, political parties, larger membership organisations, some transport and some housing. It doesn’t apply between private people, say in the streets, unless one of them is working. That may be covered by other law, but is outside the scope of this blog. S29(8) states that, with regard to services to the public and public functions , neither the protected characteristics of religion and belief and sexual orientation are covered by the sections on harassment. ‘Harassing’ conduct related to religion or belief or sexual orientation which causes a detriment is covered by direct discrimination protection.

Which protected characteristics are covered?

Age, disability, race, sex, sexual orientation, gender reassignment and religion or belief are all protected against unlawful harassment. Marriage and civil partnership, and pregnancy and maternity, are not – although the latter is effectively covered against harassment via a different route in s17 and 18 Equality Act.

What does the law say ?

The Equality Act says the following:

“26 Harassment

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”

So let’s break it down:

“Unwanted conduct” means the person alleging harassment didn’t consent to it. It is aimed at avoiding liability for genuine give-and-take banter. This does not mean the sort of bad defence used by obvious harassers to seek to exclude insults, but rather a hug between old friends, affection between consenting romantic partners, or a genuinely equal debate about politics in the canteen between colleagues, for example.

“Related to a protected characteristic” means you don’t have to have that characteristic to be harassed; but there must be a link between the words, actions etc and the protected characteristic. This sort of harassment isn’t about generic bullying.

“Conduct has the purpose or effect”. If the evidence shows the alleged harasser intended for the words or conduct to be harassing (usually determined as such because it is obvious for those words or conduct were the sort purposefully used to harass), that is then immediately proved.

If, instead, it is argued that, whether or not it was intended, the effect was harassing, then there is a further test in s26(4) Equality Act, as follows:

“(4) In deciding whether conduct has the effect referred to, each of the following must be taken into account—

(a)the perception of B [person alleging harassment];

(b)the other circumstances of the case;

(c)whether it is reasonable for the conduct to have that effect.”

In legal terms this is known as an objective, subjective test. The test is not just whether the claimant perceived harassment, but whether that is a reasonable perception. A person who is frequently late to work may feel harassed by their boss reminding them not to be late on consecutive days, but it would not be reasonable for the reminders to amount to harassment. On the other hand, a person who has ADHD but is rarely late may well be harassed by an employer singling them out every evening with the words “Remember to be on time tomorrow – we know how ditzy you ADHDers are!”

“Violating dignity etc”

This is exactly as described.. A court or tribunal needs to be satisfied that one of these descriptors could be applied to the situation evidenced.

In this piece I am not going to discuss s26(2) and (3), but it is worth noting the wording.

Very case specific

The result of this is that there are no glib equations to provide a bright line between conduct which is and is not harassment. It really depends on context and framing.

In the context of the gender critical/gender identity context, my predictions are that:

1. Simply wearing a rainbow lanyard or putting one’s own preferred pronouns in your emails at work will not amount to harassing someone else; but reporting someone to management who simply chooses not to, due to their beliefs, might well be harassment,

2. Setting up a Gender Critical or Gender Studies Research Group will likely not be an act of harassment; but campaigning against colleagues doing so might be harassment.

3. Responding politely with one’s own views to a consultation about single sex or mixed gender facilities will not be harassment; indeed complaining to management about someone about their polite answer might well be. In the case of Mbuyi v Newpark Childcare (2015), the Employment Tribual found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them.

4. Calling a colleague a TERF or intentionally misgendering them may well be held to be harassment. This is distinct from accidental misgendering, because the choice of pronoun is unknown to the speaker or because the speaker’s disability causes them not to remember such things;

5. Discussing politely and personally on social media whether the law should be changed to self ID is likely not to be, unless there is evidence of risk that this may lead to actual discrimination or harassment. Some support for this contention is given in two cases not directly relating to harassment but addressing the risk of that happening going forward. The Court of Appeal in Ngole v Sheffield University 2019 (a case concerning an evangelical Christian student social worker who was expelled from his university course after expressing “Biblical views” on social media about homosexuality) said at para 129 “such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate” . It was notable that the University had accepted there was no evidence of intention to discriminate against gay people by Ngole. This is in contrast to Dr Mackereth in DWP v Mackereth (2019) who made it clear that his particular Christian belief meant that he did have an issue using pronouns inconsistent with the service user’s birth gender [sic]. It later became clear that it also extended to using a title or style of address, Mr, Mrs, Ms, Miss etc inconsistent with the service user’s birth gender [sic]. Dr Mackereth failed in his claim. Whilst it is under appeal, my view is that an appeal is unlikely to succeed.

5. Proselyting to colleagues or service users about one’s gender critical or gender identity beliefs is likely to be harassment, in a similar way to cases involving religious proselytising like Haye v Lewisham BC (2010) and Amachree v Wandsworth Borough Council (2010)) .

In each of these cases, the judge considered the facts carefully and conducted a balancing exercise of the basis of the facts to determine whether the employer had properly considered the employee’s right to manifest their belief. In those cases where the employer’s decision was upheld, it was generally because of the actual discriminatory impact of the employee’s actions on other people.

These cases also demonstrate that similar issues can be dealt with through good employer practice and employees understand what is expected of them. An employer can have a policy which places limits on discussions about religion or belief at work, but any restrictions on freedom of speech or manifesting religion or belief must be proportionate to achieving aims like protecting the rights of others or the reputation of the employer.

So if confronted with a complaint or grievance by someone alleging unlawful harassment, what sort of questions should you ask to determine if conduct amounts to harassment?

1. What was the context in which the alleged conduct occurred?

2. What does the complainant say happened?

3. What evidence is there of the consequences of the conduct on the complainant or others?

4. Why do they say it has the effect they claim? This goes to context.

5. What does the respondent say happened?

6. What are the relative power positions of the two?

7. What do any witnesses say?

8. Is there any other relevant evidence?

9. What do your office policies say about social media use, and what is deemed misconduct or discriminatory behaviour? Do those policies balance freedom of speech, belief and private life with legitimate employer concerns like risk of harassment of colleagues or service users?

10. Have there been previous warnings against this conduct and when?

Having gathered all this information, and weighed up whose evidence is more credible, it is for the decision maker to decide whether each of the allegations are more likely than not to have happened, and if so, to determine sanction.

Employers and service providers also need to check their policies and Equality and Diversity training materials to ensure there is no harassing content in there.

In summary, there is no simple equation of X=harassment but Y does not. Ultimately, it is a fact-specific exercise, where freedoms of speech and belief are balanced against the necessity to protect from harassment in the workplace.

Oxfam’s Problem with Rape, Sexual Violence and Abuse

Over the past few years Oxfam’s reputation in both the UK and abroad has suffered from a series of allegations of sexual harassment and abuse committed by Oxfam’s employees and agents in overseas emergency and long-term aid operations.

Haiti

After the Haiti earthquake in 2010, Oxfam investigated, a year later, reports that Oxfam-employed workers in Haiti were sexually abusing local women and girls.

Seven members of the Oxfam team in Haiti, including the head of the operation, Roland van Hauwermeiren, resigned or were sacked for sexual conduct in 2011. Prostitutes, some possibly underage, had been entertained at Oxfam properties in Haiti.

Oxfam carried out an investigation into the allegations and then did its best to cover the scandal up. Oxfam concluded that the behaviour was not a case of exchanging ‘sex for aid’ and did not make the report public at the time because the prostitutes involved were not beneficiaries of aid.

In February 2018, Mr Goldring, then Leader of Oxfam, admitted the organisation had kept the 2011 scandal quiet but said it was not in anyone’s best interests to be describing the details of behaviour in a way that was ‘actually going to draw extreme attention to it’.

Penny Mordaunt, then International Development Secretary, said in 2018:

What is so disturbing about Oxfam is that when this was reported to them, they completely failed to do the right thing.

Caroline Thomson, Oxfam’s Chair of Trustees in 2018, said the charity was determined to “learn” from what had happened.

The Charity Commission, in its June 2019 report about Oxfam and Haiti, was damning of Oxfam’s behaviour. It found that:

Oxfam GB’s approach to disclosure and reporting was marked, at times, by a desire to protect the charity’s reputation and donor relationships.

The Charity Commission imposed a 19 month statutory supervision of Oxfam, ending in February 2021, because of its failings in safeguarding in the past.

Recent Allegations

There were further allegations made about Oxfam in April 2021, leading to a further suspension in Government funding for Oxfam. Those lessons didn’t appear to have been learned, yet.

In a Hole, Still Digging

In 2020 the Charity’s LGBT+ network wrote a training manual called ‘Learning about trans rights and inclusion’.

Instead of thinking that sexual violence is a problem that Oxfam ought to combat, this training document says:

Mainstream feminism centres on privileged white women and demands that ‘bad men’ be fired or imprisoned.

It is apparently the position of this “training” that reporting sexual violence to the Police legitimises criminal punishment, harming black and other marginalised people.

The Oxfam document says that white feminists need to ask themselves whether they are causing harm when they fight sexual violence:

White feminist tears deploy white woundedness, and the sympathy it generates, to hide the harms we perpetrate through white supremacy.

It appears to be the case that Oxfam is telling its employees that ‘white feminists’ who report rape and think that criminal punishment is a legitimate consequence for those who perpetrate physical and sexual violence against women are the problem rather than the solution.

Viewed through this distorting lens, the UK criminal justice’s record on rape appears to be good. A small minority of rapes are reported. Not all of those reported are prosecuted, and conviction rates are extremely low.

It has been a matter of concern to many involved with the criminal justice system for the past decade that rape is a crime that many men commit with impunity.

Blaming women for white supremacy if they report rape and expect to be protected from it is a new low.

Women who have been raped are not white supremacists, or bigots, or seeking to punish men.

The problem with rape is not women who report it and want justice. The problem with rape is rapists.

Such training could expose the organisation to claims by women who attend such training for unlawful harassment. It might well create an intimidating, hostile, degrading, humiliating or offensive environment for such women employees related to their sex and race, contrary to the Equality Act 2010.

Sadly, Oxfam now seeks to silence or shame women who have been raped or abused.

Again.

Postscript

Note added 13th June 2021 – the conviction rate as a proportion of initial complaints of rape is strikingly low. It is important to remember, however, that once a decision has been made to prosecute a case, the conviction rate is no lower than other types of criminal offences. The prosecution rate is approx. 3.6%.

One of Legal Feminist’s criminal law specialists hopes to write about this important issue in the future.

https://www.bbc.co.uk/news/uk-48095118

Disagreeing with a Woman: Threats of Rape and Violence

On 4^th June 2021 the Daily Telegraph published an article on concerns about the Stonewall Equality Diversity Champions programme. The article included a couple of short quotations from me. On 7^th June 2021 I received a long, intense email addressed to my work email account from a reader of the piece who disagreed vehemently with what I had said.

After expressing some general concerns and criticisms of my character, knowledge, legitimacy, family history and ethics, the writer opined that he (I presume) would be able to change my opinion if he were given the opportunity. He proposed to change my mind through rape and violence – conduct that would result in more than 10 years in prison if it took place. Included were 3 separate photos illustrating different young women being whipped and sexually assaulted.

I am sure that nothing written in this email was written with the knowledge, approval or consent of Stonewall. I have no doubt that Stonewall would never condone threats of sexual violence addressed to those who criticise or disapprove of Stonewall. This email demonstrates, however, a wider problem in British life. Women who are in any way visible – and this was an article in the Daily Telegraph, not a section of a primetime television show – attract a degree of misogyny, threats, sexual imagery and proposed sexual violence that is utterly unacceptable.

Of course this is #notallmen. It is a very small number of men and I am sure the vast majority would never direct such images of rape and violence against women no matter how strongly they disagreed with their opinions. But there is a small, noisy minority of men who do behave in this way. All surveys of women who are MPs, journalists, television presenters, columnists or otherwise publicly visible demonstrate that they attract disproportionately aggressive and misogynistic responses such as these.

Emails of this kind can amount to criminal offences – depending on the context, content and the number of threats, offences could include harassment, contrary to the Protection from Harassment Act 1997, malicious communications, contrary to the Malicious Communications Act 1988 or Communications Act 2003, making a threat to kill, contrary to the Offences Against the Person Act 1861, making a threat to commit criminal damage, the Criminal Damage Act 1971, or blackmail, contrary to section 21 Theft Act 1968. Identifying an offender is not always easy with emails, of course.

Of course, this is not really about the women who are the subject of these kinds of threats. The man who made threats of sexual violence to Joanna Cherry did not know her, any more than my correspondent yesterday knows me. This is about those men, not about the women who are the subject of the threats. It points to an inadequacy and threatened insecurity in the men themselves, rather than in their targets.

But aggression and unpleasantness of this kind deters women from participating in public life. Nobody, of either sex or any opinion, should be subject to threats in this way. My particular correspondent chose the anonymity of a ProtonMail address and cannot be traced. But when men who have behaved in this way can be traced, it should be made apparent that such behaviour is always unacceptable. Perhaps such men should realise they do no good to the causes they claim to support when they act in this manner.

No woman reading a message like this thinks, “Oh, of course, this charming gentleman threatening rape seems a normal and sensible chap, maybe he’s got a point.” Instead, they think merely of his inadequacies and failings.

Everybody in the UK, particularly, in this instance women, deserves better than this.

https://www.telegraph.co.uk/news/2021/06/03/stonewall-advises-organisations-use-parent-has-given-birth-help/

Legal risks for Stonewall members

Why is Stonewall losing members?

The LGBT lobbying group Stonewall seems to be in the news daily at the moment, losing major employers from its ‘Diversity Champions’ scheme, criticised for misleading advice, and damaged by friendly fire from its CEO, Nancy Kelley, who compared dissent from its orthodoxies to anti-Semitism.

From edgy, rebellious beginnings in 1989, Stonewall had grown to become a large and powerful charity with an annual income of over £8M, and an enviable level of access to the Establishment. Its flagship quality mark scheme for organisations, Stonewall Diversity Champions, is a means by which it has persuaded many public and private sector bodies to part with substantial sums of money to be intensively lobbied. A glittering list of heavyweight employers in a wide range of sectors – government departments, NHS trusts, professional regulators, universities, magic circle law firms, household name retailers and many more – had signed up.

But the scheme now seems to be unravelling fast, with new departures announced daily. Why?

The problem, in a nutshell, is that although Stonewall purports provide organisations with advice on complying with the law on equality and diversity, in reality it has been pursuing its own law reform agenda in the guise of ‘training.’ The fact that Stonewall doesn’t have a detached impartial interest in all of the 9 protected characteristics defined by the Equality Act is not in itself a criticism: it is after all a focused lobby group with a particular constituency, and it is entitled to privilege that constituency in its work. But employers and public authorities have different priorities and duties. They’re not entitled to privilege the interests of groups defined by one or two specific protected characteristics over all other groups. If they do – and still more, if they allow themselves to be guided by a pressure group’s retelling of the law as it wishes it were, rather than the law as it is – they are likely to act unlawfully.

The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions creates a wide range of legal risks. What follows aims to provide an indication of some of the kinds of legal problems that organisations may face.

Employment discrimination

Single-sex toilets, etc

Stonewall has widely promulgated the notion that self-identification as trans has legal consequences, and that trans-identifying males are automatically entitled to access women-only spaces. In reality, so far as the Equality Act is concerned, a trans-identifying male without a GRC remains legally male, and can lawfully (and as we shall see, often must) be excluded from any legitimate women-only space; and a trans-identifying male with a GRC may be excluded where it is justifiable.

Employers that accept the Stonewall interpretation of the law and permit trans-identifying males to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims from their female staff. 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, and/or to put female adherents to some religions at a particular disadvantage compared to people who do not share that religion. In either case, the employer will be required to show that its policy is a proportionate means of achieving a legitimate aim. That will be difficult, particularly in light of employers’ duties under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide separate facilities for men and women.

No doubt the great majority of trans-identifying males present no actual threat to women; but some proportion of males do present a threat to women, and there is no reason to expect that proportion to be smaller in the case of the subgroup of males who identify as women. If women suffer sexual harassment as a result of such policies, employers may be vicariously liable for that harassment.

Expanded definition of ‘transphobia’

Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if Stonewall’s definition 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.

One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassignment; 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, and at those times staff can’t simply be asked to ignore it. 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-identifying male 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.

Occupational requirements raise further problems. It is lawful to restrict certain jobs to one sex or the other, if being either male or female is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. So, for example, a department store is 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 a store decides that those jobs can be given to trans-identifying males, then at least arguably they will have destroyed the legal basis on which they restricted them to women in the first place; a man might apply, and sue for discrimination if he is unsuccessful. There is in general no defence of justification for direct discrimination, so an employer that has deprived itself of the shelter of the occupational requirement provisions may find resisting the claim difficult.

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. The only trans people the law regards as having changed sex are those who have been granted a GRC. 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.

Judicial review

Public bodies are bound by the public sector equality duty at section 149 of the Equality Act, and are generally required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which they make decisions, in the performance of their 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. Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s policy relating to trans-identifying males 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.”

In 2021, the campaign group Fair Play for Women successfully challenged the decision of the Office for National Statistics to issue guidance permitting Census respondents to answer the question about sex with their self-identified gender rather than their legally-defined sex.

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 than the reality of how the law is.

In addition, there may be challenge to a public body’s membership of Stonewall’s schemes. An application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage early this year, because 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. But the judge doesn’t seem to have been shown material demonstrating 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. In truth, Stonewall’s interest in the activities of its Champions extends well beyond their role as employers, as is demonstrated by a wealth of material now in the public domain thanks to a FOIA campaign. The failure of one 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.

Some concrete examples

There are real dangers for organisations in signing up to any equality and diversity quality-marking scheme that focuses exclusively on one or a small number of protected characteristics. Some of the following possible scenarios are grave in the extreme, but none of them is fanciful:

A swimming pool opens its women-only sessions to trans-identifying males 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-identifying male wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the duration of a three-year 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-identifying male who does not have a GRC. The NHS Trust’s policy is to treat trans-identifying males 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-identifying male. The patient 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.
Maria is a social worker employed by a local authority that has committed itself wholeheartedly and visibly to the Stonewall schemes, with allyship training, rainbow lanyards, a procurement policy, active social media accounts, and a commitment to buy-in at all levels of the organisation. Maria’s caseload includes 3 girls in their early teens who have recently started to say that they identify as boys. One of them has asked her about how she can get ‘top surgery,’ and another has recently started binding. Maria’s managers tell her that she should refer these children to a local charity for trans youth. Maria looks into the charity, and is horrified by its ‘only affirm’ approach and its record of encouraging young people to transition. She asks her managers for guidance about alternative sources of support for these children which may explore with them the reasons for their sudden identification as trans, and whether it is possible to resolve their dysphoria or come to terms with their bodies as they are. Maria is disciplined for transphobia and for promoting conversion therapy. She brings a whistle-blowing claim against her employer.
A firm of solicitors adopts writes the Stonewall definition of transphobia into its policies, and in its effort to rise up the Stonewall league table, it sets up a working group to draft a response to a government consultation on reform of the GRA. A female solicitor co-opted onto that working group raises a concerns that self-identification would undermine women’s rights, in the course of which she points out that a GRC doesn’t actually change a person’s sex: it only creates a legal fiction to that effect. A trans colleague complains, and the solicitor is put through a disciplinary procedure on a charge of gross misconduct in the form of harassing her colleague by expressing transphobic views. The disciplinary hearing exonerates her, but the process causes her to take time off work with stress and anxiety. She complains to an employment tribunal of direct discrimination on grounds of her gender critical beliefs, and indirect sex discrimination.
Alex, a child with autism and learning disabilities, is being educated at a mainstream school where children routinely call their teachers “Sir” or “Miss.” His class teacher transitions during the course of the school year, leaving at the end of the autumn term as Mr Hawthorn and returning at the beginning of the spring term as Miss Hawthorn. Alex can’t understand the transition, and continues to call Ms Hawthorn “Sir.” He becomes confused and distressed when told that he must now say “Miss.” The school insists, and Alex’s distress increases until he starts refusing to go to school. Alex sues (through his parents) for disability discrimination.
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 police officer who is a trans-identifying male is permitted to carry out a full search of a female detainee, which the detainee experiences as a terrifying and humiliating sexual assault. The police officer is prosecuted; superior officers face disciplinary charges; and the force faces a civil claim for breach of the detainee’s Article 3 right not to suffer humiliating or degrading treatment.
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. Chris, a 17-year-old trans-identifying male wants to join the girls’ First Fifteen. Chris 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 Chris to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite Chris has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.

Membership of the Stonewall Champions or Workplace Equality Index schemes is capable of leading to a significant legal problems for organisations of any kind, in any sector. Depending on the nature of their functions, it may cause them to discriminate against employees, infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm. Organisations should think very carefully – including conducting an equality impact assessment which takes full account of the impact on any policy changes on groups defined by reference to all other protected characteristics before they incur these risks. Organisations that have signed up should conduct a careful review of their policies and practices to make sure that they have not been led into a misunderstanding or misapplication of the law.