In AEA v EHRC  EWHC 1623 (Admin), Henshaw J refused the claimant permission to seek judicial review of the EHRC Code of Practice on Services, public functions and associations. AEA had challenged various aspects of the CoP, but in particular a paragraph that asserted that service providers offering single-sex or separate-sex services should treat transsexual people according to the gender role in which they present (I’m just going to write “single-sex” in what follows, but everything applies equally to separate-sex services). AEA argued that that misstated the law: any lawful single-sex service is entitled to exclude everyone who is not of the sex in question, irrespective of what other protected characteristics they might have.
A decision refusing permission for judicial review has no status as precedent, so the judgment is not binding on any other court or tribunal. But it has attracted some attention nevertheless, partly because of the heightened feelings on both sides of the “gender war,” and partly because of the trenchant terms in which it is expressed. The judge repeatedly dismisses AEA’s arguments as “clearly wrong”, “clearly incompatible with the tenor of the Act,” and even “an obvious absurdity.”
That makes me think it’s worth taking a look at some of the detail of Henshaw J’s reasoning. First, a very short introduction to the Equality Act 2010 and how it works.
The Equality Act 2010
The Equality Act prohibits various kinds of discrimination on grounds of specified “protected characteristics” – age, sex, race, etc. – in a number of specified contexts. The Act is structured as follows. First (after some preliminary material that doesn’t matter for my purposes), it defines the protected characteristics. There are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Next, the Act defines various different kinds of discrimination: direct, indirect, harassment, failure to make reasonable adjustments for person with a disability, etc. The two that matter for present purposes are direct and indirect discrimination. Direct discrimination is treating someone less favourably than others because of a protected characteristic. Indirect discrimination is the application of a provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared with others, and cannot be shown to be a proportionate means of achieving a legitimate aim.
Note that, thus far, the Act hasn’t prohibited or required anything: these initial parts of the Act simply set up the definitions that are going to be relied on in the later sections that actually tell you what you are and are not allowed to do.
The real work of the Act is done in parts 3 to 7, which prohibit discrimination in various different contexts: services and public functions, premises, work, education and associations. These prohibitions are modified by various exceptions and qualifications, some to be found in the Act itself, and some one or other of its Schedules.
Part 3 of the Act prohibits discrimination in the provision of services and public functions, and schedule 3 provides for exceptions to those prohibitions.
Among the schedule 3 exceptions, there are rules intended to make it possible to run single-sex services if certain conditions are met. AEA had argued that if it’s lawful to operate a particular single-sex service for women, then it must necessarily be lawful to exclude all men from it: otherwise it’s not single-sex. So far, so obvious, you might think. If that was right, the EHRC guidance saying trans people should be treated according to the gender role in which they presented was erroneous.
The EHRC had come up with a clever answer. Schedule 3 says that where the conditions for a women-only service are in place, it’s not unlawful sex discrimination to exclude all males. But it doesn’t say that it can’t be unlawful discrimination on any other ground. So, EHRC argued, a rule excluding all men from the service might turn out to be unlawful indirect discrimination on grounds of gender reassignment.
That was a neat argument, but there was a neat answer. Once the conditions of paragraphs 26 or 27 of schedule 3 are met, the sex discrimination inherent in the rule is excused, but it’s true that those paragraphs don’t exclude the possibility of indirect discrimination on some other ground. And it is clear enough that excluding all men from a service could sometimes put men with the PC of gender reassignment at a disadvantage compared to men without that PC, if it was a service they needed and for which there was no unisex provision where their presence would be unremarkable. So a complaint of indirect discrimination within the meaning of section 19 of the Act might be brought, and if it did a question might arise whether the rule excluding men was a proportionate means of achieving a legitimate aim.
But at this point it becomes clear that indirect discrimination takes matters no further forward. It is only lawful to offer a single-sex or separate-sex service under paragraph 26 or 27 of schedule 3 if “the limited provision is a proportionate means of achieving a legitimate aim.” This is the exact same question asked by s.19 to determine whether there is indirect discrimination. If the limited provision is not a proportionate means of achieving a legitimate aim, then it’s not lawful to offer a single-sex or separate-sex service at all. If it is lawful to offer a single-sex service, then ex hypothesi, the limited provision (and with it the rule excluding men) is a proportionate means of achieving a legitimate aim.
It follows as a matter of inexorable logic that if it is lawful to offer a women-only service, it’s lawful to exclude all men from it – including those who identify as women.
One can reach the same conclusion by a shorter route. If it is lawful to offer a single-sex service for women, then of course it is lawful to exclude all men from it: otherwise it’s not single-sex, but mixed.
At ¶15, Henshaw J says this:
The claimant submits that if a difference of treatment can be justiﬁed vis-a-vis birth men in general, then it is inconceivable that it cannot equally be justiﬁed vis-à-vis birth men who are transsexual women. On that approach, though, the Equality Act’s gender reassignment provisions would in substance provide no protection at all, in the context of an SSS, to transexual persons without a GRC.
Since the AEA’s contention was exactly that – that the gender reassignment provisions provide no protection at all to trans persons without a GRC so far as the operation of single-sex services is concerned – what this boils down to is “But on the claimant’s approach, the claimant would win!” The same point recurs at ¶17:
In my view, the claimant’s argument is an obvious absurdity because it would construe s.19 in such a way that Schedule 3 para. 28 could never apply to a transexual woman lacking a GRC who complained of indirect discrimination vis-à-vis birth women.
Again – that was exactly AEA’s point: paragraph 28 of schedule 3 would never arise in the case of a trans-identifying man without a GRC. So this means “The claimant’s argument is an obvious absurdity because it would lead to the claimant winning its argument.” This is a particularly pure specimen of the logical fallacy called “begging the question”: that is, assuming as part of your argument that which is to be proved.
This is odd. They don’t as a rule appoint fools to the High Court bench, and everything about Henshaw J’s career to date confirms that he’s no exception. And yet the logical fallacy is plain to be seen – twice. What’s going on here? Why did the judge find it so unthinkably absurd that AEA could be right in saying that if the law lets you restrict a service or space to women, it’s ok to – well, restrict it to women?
I don’t know the answer to that question. I have a guess – actually I have two guesses. The first is that the promulgation of ‘Stonewall law’ has been so successful that large parts of the educated elite have absorbed it as a commonplace ‘known fact’ that it is unlawful except in the most extreme circumstances to restrict trans people’s access to spaces and services provided for the opposite sex. When AEA argued that trans-identifying males without GRCs could be routinely excluded from any legitimate female-only space or service, that came into conflict with something the judge thought he had known for ages. My second guess is in the coda at the end of this blog.
Paragraph 17 continues:
[T]he claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29 [this is presumably a typo for 28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination.
It is not clear why the judge thinks that an approach that puts trans-identifying men without a GRC in the same position as other men for these purposes is incompatible with the tenor of the Act. The Act prohibits discrimination on various grounds as well as sex and gender reassignment; but the point – indeed the very definition – of single-sex services is that they exclude one sex. It follows that a single-sex service for women will exclude all men, irrespective of their other protected characteristics: if that goes for race, disability, sexual orientation, age, religion or belief, why would it not also go for gender reassignment?
The error into which the judge appears to have fallen is to conflate the right not to suffer discrimination on grounds of gender reassignment with a right to be treated as the opposite sex. A trans-identifying man excluded, for example, from the ladies’ has not suffered discrimination on grounds of gender reassignment, because a non-trans-identifying man would be excluded just the same. To the extent that the law provides for a right to be treated as the opposite sex, that is done through the mechanism of the Gender Recognition Act 2004, but only for the benefit of those who have a gender recognition certificate.
At ¶16, the judge says:
In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable that regard must be had to its impact on persons with the protected characteristic in question. It is clearly wrong to assume, as a matter of law, or as a matter of obvious practice, that the answer will necessarily be the same whether one assesses a PCP as applied to birth males in general or whether one assesses it as applied vis-à-vis birth males who are transsexual women.
This is surprising. The words of the justification provisions are identical in s.19 and in ¶¶26 and 27 of schedule 3: what needs to be shown is that “the PCP” in one case or “the limited provision” in the other is “a proportionate means of achieving a legitimate aim.” Given that the PCP is the rule excluding one sex, a court seized of a question about the lawfulness of a single-sex service would be answering at both points the question “is the rule excluding men a proportionate means of achieving a legitimate aim?” The judge in AEA appears to think that that question could have one answer for the purposes of ¶26 or 27, and a different answer for the purposes of section 19. The rule is either a proportionate means of achieving a legitimate aim, or it is not: it can’t be both a proportionate means of achieving a legitimate aim and not a proportionate means of achieving a legitimate aim at one and the same time.
Coda – on words
I was junior counsel for AEA in this case. Before that hearing, I had been willing – out of politeness, and sensitivity to the feelings of trans people generally – to write and speak of “trans women,” and use feminine pronouns, even when not referring to real individuals but exploring hypotheticals and generalities. Listening to argument in court that day was a personal tipping-point. It became vivid – to me at least – in the course of the hearing that the unreal language being used by everyone was obscuring the logic of the arguments and confusing the court. It’s much easier to see at a glance that a legitimate rule excluding men will legitimately exclude all men if your language acknowledges that all the people whom it excludes are indeed men.
Thinking, speaking and writing of “trans women” or “transsexual women” primes our minds to conceptualise trans-identifying men as a kind of woman. They are not: men are still men – however they identify, whatever they wear, and whatever treatment they may have undergone to modify their bodies to look more like women’s bodies. Those of us who would defend clarity and rationality in this area of the law need to hold that line.