Fostering good relations

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

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

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

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

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

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

Discrimination claims? 

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

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

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

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

The Equality and Human Rights Commission’s role

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

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

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

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

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

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

Conclusion 

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

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

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

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

Wadhwa should resign.

10 thoughts on “Fostering good relations”

  1. I think it’s obvious from Wahwha’s interview on The Gulity Feminist that Wadwha intends to deploy the institutional power of Edinburgh Rape Relief to sanction service users who express their own experience that male people are male people. As a person who experienced domestic abuse, I would find it retraumatising for power being used this way, because perpetrators do use their power to silence abuse victims. Domestic abuse services couldn’t do this AND provide an effective service that build up the woman’s confidence in asserting boundaries based on her own experiences. The basis for the service being effective is that it undoes all the work that the perpetrator did to make you believe you could only have experiences that a more powerful person allowed you to have.

    I’ve seen a service user of ERC say that they will provide a female only service based on actual sex not legal sex or gender identity. Hopefully that is both true and something they’re willing to communicate to service users.

  2. Wadhwa should resign. no man should be able to hold a woman only job, least of all in Rape Crisis centre where abused and traumatised women are. it is utterly shameful.

  3. It is my view that you are ignoring AEA v EHRC again. According to that decision, all people with the characteristic of gender reassignment are “transsexual” as per EA2010 and are “in a different position from their birth sex”. Therefore ERCC was entitled to accept all or some such people.

    But that is a legal argument. ANother place in your text contains a statement that is either factually wrong or makes no sense. You write that the ERCC is “a rape crisis centre that purports to offer a female-only service” but the ERCC as a whole is not a female-only service, any way you cut it. It is a service for “women, minors, and all members of the trans community”. So if you meant the service ass a whole the statement is wrong.

    If by “purports to offer a female-only service” you mean that they have *some* groups only open to women, your statement makes no sense for two reasons:

    – The groups are advertised as trans-inclusive so in your terms the ERCC does not purport to offer a female-only service

    – Even if it did, because it is only *one of* the services it offers it makes no sense to state that “a man” can not lead the centre as a whole.

    1. The point is that it may be funded to provide a women only service in which case that is what they should be providing.

  4. As a gang rape survivor, I was severely traumatized by the statement that was made by Mr Wahwha.

    I have severe CPTSD and I am very hypersensitive to male bodies. To be honest, there have been several times in my life, when I have had to use rape crisis and refuges. I can categorically state that had male bodied people been present, I would not have attended at all. I would have carried through the attempts to end my life.

    The way in which professional bodies responded to my complaints about his statements was also abhorrent.

    People in positions where women’s lives are at risk, have no business calling us bigots, for not being able to cope with male bodies following rape.

    Doubling down on that and dismissing us was unforgivable. It has caused irreparable damage to trust in services and trust in government.

  5. A scandalous situation. Up with this we will not put. Who ever made the decision to recruit a MAN into this position also needs taking to task. Dogma over common is outrageous. #sexmatters

  6. Wadhwa felt entitled to apply for the job and is reshaping the work of the Centre to exclude “bigots” (i.e. female born people) The funding criteria must be redrawn along with the intended meaning of the words “rape crisis” .

  7. The whole point about rape is that it is about sex rather than gender, which is why women survivors have been granted access to women only spaces, a right which has been protected in law. Sex may not mean much before a woman has been raped, but it means everything for ever afterwards. Trying to make rape about anything other than sex misses the point entirely and Wadwha’s mission to “re-educate” rape victims is conversion therapy by any other name. Rape Crisis should take legal advice before they lose more women clients.

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