The Worker Protection (Amendment of Equality Act 2010) Bill currently proceeding through Parliament and predicted to become law in 2024, raises some subtle questions about the relationship between protection from harassment and freedom of speech.
When the Equality Act 2010 was passed, it included provisions outlawing third party harassment and providing a legal claim against an employer by an employee who suffered harassment by a third party such as a customer, client or visitor.
These provisions were criticised at the time as unduly complex, in particular, for the fact that they required the employee to have suffered two previous incidents of harassment at work. The provisions were rarely used. But rather than amend the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.
There remained some scope to bring a claim for third-party harassment under section 26 of the Equality Act on the basis that an employer’s failure to prevent harassment by a third party is itself harassment. But
in Unite the Union v Nailard [2018] EWCA Civ 103 the Court of Appeal held that to succeed in a claim of this kind, the claimant must prove that the employer has a discriminatory motive for failing to take action.That will rarely be possible. As a result, employees were left relatively unprotected in this situation.
A few years after the Red Tape Challenge, the #MeToo movement brought workplace harassment into sharp focus, including harassment by clients and customers to workers . This included undercover reporting by the Financial Times of a notorious charity fundraising event at the now closed Presidents Club in 2018 , where the hostesses were reportedly groped and sexually harassed by rich and powerful men.
In 2018, after a call for evidence, the EHRC published a report called “Turning the tables: Ending sexual harassment at work”. The report found that third-party harassment is a particular problem for people in customer-facing roles, with around a quarter of those reporting harassment saying that the perpetrators were third parties. They also found that third-party sexual harassment was dealt with poorly and was viewed by some employers as a ‘normal’ part of the job.
It recommended amongst other steps that:
· the UK Government should introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.
· Breach of the mandatory duty should constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission.
The Government announced it supported the recommendations, and backed a Private Members’ bill.
Under the new law, when it comes into force (likely to be in 2024),
an employer will be liable if a third party harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent them from doing so. The provision is not limited to sexual harassment and so covers the other relevant protected characteristics as well.
A new duty will also require an employer to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. Breach of the duty will be an unlawful act, enforceable by the Equality and Human Rights Commission. There will be a Code of Practice setting out what reasonable steps should be taken.
Although employees will not be able to bring standalone claims specifically for breach of the duty to take reasonable steps to prevent sexual harassment, if an employee is successful in a claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty, it will have the power to award an uplift in compensation not exceeding 25%.
These are largely positive developments which should reinforce the obligations on employers to protect their employees and plug an important gap where employees are at risk of third party harassment.
However concerns have been raised about the scope of the provisions in the context of free speech.
The Government has proposed an amendment to the Bill so that employers will not be liable for workplace harassment (other than sexual harassment) in circumstances where that harassment arises as a result of a ‘protected conversation’: one which involves the expression of opinion on a political, social, moral or religious matter, in which an individual is not a participant. In effect, this intends to exclude overheard conversations where a personal view is expressed. This amendment has been proposed with a view to addressing concerns about how the Bill, as previously drafted, might curtail the legitimate expression of free speech.
Despite this proposed amendment, the solicitor James Murray of Mishcon de Reya, a specialist in law related to Higher Education and academic freedom has raised concerns whether the change in law will still negatively affect academic freedom on campus, with officials using the excuse of the third party liability to disallow controversial academic speakers on campus
Obviously, this Bill is not yet law, and there may be further amendments. But the lesson from the Red Tape Challenge is one that this Government (currently engaged in potential mass repeal of EU legislation via the Retained Law (Revocation and Reform) Bill 2022 (also proceeding currently through Parliament) would be wise to learn.
Is this or any law red tape or essential protection? I welcome this long overdue protection from third party harassment but great care needed to ensure the right balance to protect free speech.
This is not a blog post which explores fundamental truths of the human condition or even one which traces a pathway through legal complexities. Rather, it looks at the law in practice.
Regular readers of this blog will know that paragraphs 27-28 of Schedule 3 of the Equality Act 2010 permit a service provider to offer a single sex or separate sex service. Paragraph 28 in particular allows a service provider to discriminate on the grounds of gender reassignment. For the purposes of women-only services and spaces, it is generally understood that this means that a women only service may exclude all those who are biologically and legally male by virtue of paragraph 27, and may (if proportionate) exclude biological females who are legally male and biological males who are legally female by virtue of paragraph 28. There remains some discussion over whether “blanket” policies are permissible and whether paragraph 28 should be applied person-by-person or policy-by-policy, but the overarching principles are those.
In recent times organisations which hold their line on single sex services have been viciously targeted. The rat nailed to the door of Vancouver Rape Relief, the smoke bombs set off outside the WPUK meeting held near to Grenfell Tower, the violent and sexually aggressive imagery chalked on the pavement at FiLiA.
This is a question for those who attend, or organise, such protests. If you heard that a women-only self-defence group had refused entry to a transwoman who approached them saying she was fearful of violence because of her gender and wanted to learn to defend herself, would you protest that organisation? Would you denounce them on social media? Organise a boycott? You’d probably want to write to all of their funders to try to have their funding withdrawn, at the very least, and notify the local council – wouldn’t you? Perhaps you could persuade the Good Law Project to bring a legal case against them?
If the centre argued that their classes were for women who had suffered domestic or sexual violence, that wouldn’t change your view in the least, would it? After all, transwomen can also suffer domestic or sexual violence, and any woman who is triggered by the presence of a male-born person just needs to reframe her trauma, right?
This is not a hypothetical scenario. In 2021, the Scottish Centre for Personal Safety declined to admit Annie Bryson to their women only self-defence course offered to survivors of domestic or sexual violence. But before anyone goes to organise a protest, there’s some additional important information to know.
In 2016 Annie Bryson – then Adam Graham – raped a woman. In 2019, he raped another woman. In 2021 he tried to access this course – a course for survivors of male violence where he would presumably have learned what techniques women use to fend off rapists, while triggering a trauma response among any survivors there. (The same year he enrolled on a beautician course which involved women removing their clothes to practise spray tan procedures on one another. Would-be protestors can pat Ayrshire College on the back for their admirably inclusive policy.)
In 2023 he was convicted of both rapes. His ex-wife said that she thought he was “bullshitting” his claim to be transgender, which had only developed after he was arrested for the rapes, and even that arch-proponent of self-ID Nicola Sturgeon can’t quite bring herself to call him a woman, saying “She regards herself as a woman. I regard the individual as a rapist.”
It might be tempting to say – well, what’s wrong with that? The individual IS a rapist.
He is. But for the purposes of the criminal justice system, between 2016 and 2023 he was Schroedinger’s Rapist: he had committed rape but he was not convicted of rape.
What motive could a double rapist have for wanting to join a class for survivors of sexual violence and learn what techniques they would use against a predator? What motive could a double rapist have for wanting to join a class full of semi-clad women applying beauty techniques? The answer is surely obvious on both counts.
Now that Adam Graham / Annie Bryson / Isla Bryson has been reallocated from the women’s estate to the men’s estate, there seems to be a grudging acceptance that he isn’t “really” trans. After all, he’s a rapist.
The problem for the protestors is that he wasn’t – in law – a rapist until he was convicted.
If the protestors had their way, Adam Graham would have been welcomed in to any women only service he chose to attend. That in itself should be explanation as to why some services, particularly those where women are undressing or where they are survivors of male violence, want to exercise their right to remain female only under the Equality Act exceptions. It should take a lot more than a chalk willy on a pavement to persuade anybody otherwise.
How sensible is the law when it locks up vulnerable female prisoners with violent men who say they are women?
Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.
That would be more reassuring if the law had not already been very bonkers indeed for some years.
The case of double rapist Adam Graham, otherwise known as Isla Bryson, has been hitting the headlines since his conviction on 24 January this year. Graham was initially remanded for sentencing to Cornton Vale women’s prison, before he was moved to a men’s prison in response to a public outcry. How did that come about, and was it a brief anomalous moment of bonkersness before sensible people reverted to being sensible?
Separate prisons for men and women
Separate establishments or parts of establishments for male and female prisoners have been maintained in the UK since 1823, when the Gaols Act 1823 provided “In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.” The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):
Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.
The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which supplement the Standard Minimum Rules, lay particular stress on physical and psychological safety at paragraph 9:
In its resolution 61/143 of 19 December 2006 entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender-based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women… The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account.
The current position in domestic law for England and Wales is less definite. It is to be found at rule 12 of the Prison Rules 1999, made under the Prisons Act 1952:
(1) Women prisoners shall normally be kept separate from male prisoners
Interestingly, the Prisons and Young Offenders Institutions Scotland Rules 2011 say:
126.—(1) Female prisoners must not share the same accommodation as male prisoners.
(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.
Despite these provisions, the principle of single-sex prisons has been quietly eroded since men who had had genital “reassignment” surgery started to be imprisoned with women by the 1980s (Biggs, 2020). In 2009, the prison authorities were still holding the line that surgery was a pre-requisite for transfer to a women’s prison.
That was already a significant departure from “people being sensible”. A man does not become a woman by having his testicles removed, nor by having his penis inverted into a surgically-created cavity as a “neo-vagina”; nor by having implants or taking hormones to create the appearance of female breasts. A violent man who has undergone some of those treatments may present less of a threat to women of certain particular kinds of crimes than an unmodified man, but he will retain his advantages of size and strength. Rape is only one of the ways that men terrorise women.
In any event, women’s wish for bodily privacy from men is not solely or even chiefly about demonstrable threat. It is about deep-seated taboo, and in some cases about trauma-induced fear. It is humiliating for a woman to be required to undress in the presence of a man, and for some women it will also be terrifying even if the particular man poses no risk. A woman traumatised by male violence may reasonably be hypervigilant in the presence of any man.
Genital surgery cannot reasonably be expected to make a difference to this. Why would it? Many women will object strongly to being expected to undress in the presence of men with whom they are not intimate. Few of those can be expected to feel any more comfortable undressing in the presence of a man who has had genital surgery. We do not wish to see male genitals in the women’s changing room; but we may well have a wish at least equally strong not to see the site of surgical removal or remodelling of male genitalia. Medical treatment is a private matter between patient and physician. It is not our business whether a man has had genital surgery or not, and we do not want it made our business.
These are considerations to which the sensible people who decided to start moving men into women’s prisons appear to have been oblivious.
But the law – or at any rate the administration of the law by sensible people – got more bonkers than that, much.
Mark (aka Karen) Jones
In 2009, Mark Jones, a male prisoner who had been granted a GRC but had not yet had genital surgery, brought judicial review proceedings challenging the prison service’s refusal to move him to a women’s prison. NHS policy at the time was to make “living as a woman” for two years a pre-requisite to surgery, and did not recognise “living as a woman” in a men’s prison as sufficient.
Jones’s convictions were for the manslaughter of his boyfriend, and for a terrifying attempted rape of a female stranger. He was evidently difficult to manage in prison. A report from his own expert supported the proposal to transfer him to the female estate on the basis of an expectation of a deterioration in his behaviour if his wishes were thwarted:
[The claimant] needs to control the threatening external world by imposing [his] own order and when this is not possible [he] resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements . . .
. . . As [the claimant’s] desperation to control [his] environment mounts, [he] experiences a heightening degree of narcissism or self-concern. [H]e is increasingly liable to experience aggressive and destructive impulses.
[emphasis supplied]
Argument in the case ( B v Secretary of State for Justice [2009] EWHC 2220 (Admin)) focused on Jones’s article 8 rights, and the cost to the prison service of the (possibly extended) period of segregation in a women’s prison which was thought likely to be necessary before he could be allowed to “mix with and form friendships with other women [sic] as she [sic] would choose to do”.
The closest the court’s reasoning, or any material referred to in the judgment, came to considering the human rights of the women who were to be locked up with a violent, narcissistic and sadistic rapist is to be found in three short passages from the evidence. Mr Spurr, the Chief Operating Officer of the National Offender Management Service referred at paragraph 56 of his statement to a number of factors he said were relevant to the decision, including “concerns over how the female population would react to her [sic] generally, and also specifically if they became aware of her [sic] index offence”.
At paragraph 64, Mr Spurr said:
I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant’s risk to herself [sic], NOMS must also bear in mind the risk she [sic] poses to other prisoners.
Dr Barrett dealt dismissively with any unhappiness that female prisoners might feel about the company they were to be required to keep:
I would say that I suspect that caution will probably lead to her [sic] being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she [sic] is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her [sic] able to cope with the less prolonged, more avoidable, travails of the civilian world.
The interests of the female prisoners who were to be locked up with Jones were not represented, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.
The court was persuaded. The judge held that holding Jones in a men’s prison interfered with his personal autonomy as protected by article 8 of the European Convention on Human Rights in a manner going beyond what imprisonment was intended to do, and that the prison service had failed to provide sufficient justification for the interference. He was accordingly transferred to a women’s prison to serve the remainder of his sentence.
There were only two parties present or represented in court: Jones himself, and the Secretary of State for Justice. The interests of the female prisoners who were to be locked up with Jones were not represented by any interested party or intervener, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.
Adam Graham (aka Isla Bryson) and Scottish Prison Service Policy
Anyone still cherishing the idea that “the law is sensible people” might regard the judgment of the court in B as a high-water mark of bonkersness, and look forward to it being swiftly corrected at the next opportunity. They would be disappointed by what happened next.
The Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was adopted in 2014. It says under the heading “Policy key principles”:
The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.
That is a policy under which Mark Jones would have been automatically assigned to women’s prison simply on the strength of his self-identification as female. He would not have been put to the trouble of seeking surgery.
Adam Graham/Isla Bryson’s initial placement in a women’s prison was wholly consistent with that policy, and should have surprised no-one.
FDJ v Secretary of State for Justice (2021)
The first (and so far only) attempt to persuade the High Court to give some weight to female prisoners’ human rights in deciding where to place male prisoners who identify as women was made in FDJ v Secretary of State for Justice [2021] EWHC 1746 (Admin).
FDJ served a sentence of imprisonment between October 2016 and June 2020, at HMP Bronzefield, a women’s prison operated by Sodexo. She sought judicial review of MOJ policies which allowed male prisoners who had been convicted of sexual or violent offences to be allocated to women’s prisons if they asserted a female gender identity and/or had been granted a GRC. FDJ gave evidence that she had been sexually assaulted by “J”, a male prisoner who had convictions for serious sexual offences against women. He also had a GRC declaring him to be a woman.
FDJ challenged two prison policies, referred to in the judgment as the “Care and Management Policy” and the “E Wing Policy”. The former included this:
4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women.
Section 9 reads:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
Those words seem to have been interpreted by the prison service as imposing a duty on it to treat a man holding a GRC as if he were a woman (and vice versa).
This betrays a fundamental misunderstanding of section 9, which has a much more limited effect. It confers a status: it deems to be true, once certain conditions are met, something that is not true. It does not purport, in itself, to attribute consequences to the legal fiction it creates except in relation to privacy of information. If it did, the consequences would need to be defined, and supported by a carefully thought-out account of what it is to be “treated as a woman” and in what contexts the law could properly require such treatment; and it would need an enforcement mechanism. In general, after all, where the law makes provision about the different treatment of men and women, it does so not by requiring it, but by prohibiting it.
In truth, apart from the privacy provisions, the GRA is better understood as an ancillary enactment about the interpretation of other enactments than as the kind of legislation which in itself requires people to do things, or not to do things.
As Choudhury J confirmed in Forstater v CGD [2021] IRLR 706 at para. 97, “for all purposes” at section 9 means “for all legal purposes”. The GRA does not itself, for example, compel anyone to think of a man who holds a GRC as a woman, or to treat him as such for social or dating purposes, or to ignore his true sex when providing him with sex-specific medical treatment or screening, or to give him access to women-only spaces, etc. If and to the extent that section 9 of the GRA confers on a man a positive right to be treated as a woman (or vice versa) it must do so through the medium of some other enactment or common law rule which attaches concrete consequences to a person’s legal status as a man or a woman. The obvious example (according the ruling of the Outer House of the Court of Session in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90) is the Equality Act 2010.
The E Wing Policy considered in FDJ also proceeded on the assumption that any male prisoner who had a GRC must be housed in a female prison unless the wholly exceptional circumstances in which a female prisoner would be held in the male estate applied in his case.
FDJ in her challenge argued that these policies were unlawful because they indirectly discriminated against women contrary to art. 14 of the Convention read with arts. 3 and/or 8, and contrary to section 29 of the Equality Act; and that the prison service, in formulating its policy, had failed to take account of exceptions in the Equality Act permitting discrimination on grounds of both sex and gender reassignment. But she did not take the point that the policy misunderstood the effect of section 9 of the GRA by treating it as in itself conferring positive rights about treatment by other people; on the contrary, her counsel is recorded at para. 68 of the judgment as conceding that it does. (That concession finds some faint support in an obiter remark in Green v Secretary of State for Justice [2021] EWHC 1746 (Admin), para. 68, but the remark is better understood merely as an acknowledgment – foreshadowing the For Women Scotland case – that a GRC deems a person to have changed sex for the purposes of any comparison in a sex discrimination case under the Equality Act.)
The court proceeded on the basis that paragraphs 26 and 28 of schedule 3 to the Equality Act permitted — but did not require — men and women to be housed in separate prisons. (There is a curiosity here, which is that it is not self-evident that schedule 3, read literally, is applicable at all to the performance of public functions like those of the prison service. But the assumption that schedule 3 was applicable to the allocation and management of prisoners has been made not only by a powerful Divisional Court in FDJ but also by the Court of Appeal in Coll v Secretary of State for Justice [2017] 1 WLR 2093, a case about the more restricted provision of approved premises for the accommodation of female prisoners released on licence than for male prisoners. That being so the point can probably be regarded as settled for all practical purposes.)
FDJ’s argument was that allocating prisoners to the estate corresponding to their gender identity instead of making full use of the schedule 3 permission to hold male and female prisoners in separate establishments had a disproportionately adverse effect on female as compared to male prisoners. That was because male prisoners in female prisons increased the risk of sexual assault to which female prisoners were exposed, whereas female prisoners in male prisons did not (or would not) increase the risk of sexual assault to which male prisoners would be exposed. The Secretary of State was therefore called upon to justify his policy. He could not do so because there were less intrusive measures which he could have taken to care for and manage male prisoners who identified as women.
The Secretary of State argued that the single-sex exceptions in the Equality Act should be used in a manner that is compatible with the art. 8 rights of transgender prisoners, and relied on B v Secretary of State for Justice.
Importantly, FDJ did not challenge the correctness of the decision in B (Mark/Karen Jones’s case), nor did she argue that there should be no men in women’s prisons. She argued instead that the Secretary of state should have struck a different balance between the rights of men who say they are women to be treated as women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.
The court accepted as valid and understandable the fears of female prisoners held with male sex offenders, but declined to interfere with the balance that the prison service policies had struck. Paragraph 83 reads as follows:
The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women’s prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis.
This, to my mind, is the heart of the matter. By limiting herself to arguing that convicted male sex offenders should be excluded from women’s prisons, FDJ had put herself in an impossible position. If it is accepted that the rights of some men to “live as women” entitle them to be held in women’s prisons, decisions about which men should be admitted, and which should not, become exactly the kind of delicate and sensitive judgements in which the courts will be understandably slow to interfere.
No men in women’s prisons?
So was the court right that it was “not possible to argue that the Defendant should have excluded from women’s prisons all transgender women”?
The schedule 3 exceptions deal with situations in which, for privacy, decency etc, it is necessary to provide services separately for women and men. Even assuming that the FWS2 decision is correct and sex in the Equality Act means sex except where modified by the application of a GRC, those exceptions provide expressly for the exclusion of all men – including men with GRCs – from women’s services or spaces, where circumstances justify it. The Explanatory Note to the Act gives counselling services for victims of rape as an example; prisons too are an obvious case where a blanket rule is likely to be justified.
Despite the existence (and accepted applicability) of those express exceptions, the court in FDJ seems to have assumed – without hearing argument on the point, but perhaps obedient to the earlier judgment in B – that their use could not be defended in relation to prisons.
No doubt some men with GRCs would like to be treated for all purposes as if they were women, even in those cases where there is a plain necessity to exclude them from something provided specifically for women. Possibly exclusion will cause them upset, increased dysphoria, rage or even anguish. But as the court in FDJ acknowledges at paragraph 76, it is also understandable that women imprisoned with men may suffer acute fear and anxiety. The qualified art. 8 rights of male prisoners who say they are women may be engaged; but so too are the qualified art. 8 rights and the unqualified art. 3 rights of female prisoners.
Even if the art. 3 rights of female prisoners can be disregarded so that the balance needed is simply between the art. 8 rights of female prisoners and those of male prisoners who say they are women, the numbers involved should be noted. Placing one man in a women’s prison in order to give effect to his art. 8 rights will infringe the art. 8 rights of all the women with whom he is imprisoned.
The schedule 3 exceptions
With those points in mind, we can consider paragraphs 26 and 28 of schedule 3 to the Equality Act, and ask whether it really is impossible for the prison service to make use of them:
Paragraph 26
(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—
(a) a joint service for persons of both sexes would be less effective, and
(b) the limited provision is a proportionate means of achieving a legitimate aim.
Paragraph 28
(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(2) The matters are—
(a) the provision of separate services for persons of each sex;
(b) the provision of separate services differently for persons of each sex;
(c) the provision of a service only to persons of one sex.
It is clear that in relation to prisons, a “joint service” would be less effective; and that the limited provision – that is, the provision of separate prison accommodation for men and women – is not merely a proportionate means, but the only possible means of achieving the legitimate aim of providing a humane and safe environment for female prisoners, respecting their privacy and dignity, and complying with international standards. That is the reason for the existence of separate men’s and women’s prisons, and it is – necessarily – ample justification for the exclusion from women’s prisons of all male prisoners without GRCs, including those who self-identify as women.
So far as male prisoners with GRCs are concerned, paragraph 28 applies. Under paragraph 28 the question assumes the prior existence of separate services for persons of each sex and simply asks whether the exclusion of men with GRCs from the women’s service is a proportionate means of achieving a legitimate aim. But once again, and for exactly the same reasons, the exclusion of men with GRCs is in pursuit of the legitimate aim of providing a safe, humane and dignified environment for female prisoners, and is not merely a proportionate means but the only means of achieving that aim.
Once the arguments are set out plainly, away from the noise of the thought-quelling chant “trans women are women” and in defiance of the related insistence that we speak and write of men who say they are women as “trans women” and refer to them with female pronouns, the result is clear.
Conclusion
The law in this area has already gone very bonkers indeed. Adam Graham’s initial placement in a women’s prison was not an anomaly, swiftly corrected when it came to light; it was a routine decision in conformity with a policy that had been in place for 9 years. A more forthright challenge to the presence of men in women’s prisons using clear language and centring the human rights of female prisoners cannot come too soon. Let’s hope that this time, the courts will be sensible.
What is corporate governance and why is it relevant?
Corporate governance refers to the system of rules, practices, and processes by which a company is directed and controlled. It involves balancing the interests of a company’s many stakeholders, such as members, employees, service users, suppliers and the community. The primary objective of corporate governance is to enhance corporate transparency, accountability, and to ensure the company’s purpose is fulfilled.
So far, so not obviously feminist. However, as more and more feminists in the UK begin to organise using corporate structures, it is important they understand the UK corporate framework. With that in mind, this is intended as the first of several articles about different aspects of UK company law.
It is essential that those assuming the role of director or trustee for the first time understand how governance contributes to a company’s success or failure. As a corporate lawyer and non-executive director, I have seen poor corporate governance lead to, sometimes irreparable, financial and reputational damage. On the other hand, strong corporate governance flows through an organisation, promoting good decision-making and adherence to the company’s purpose; this is why lenders and investors thoroughly review a company’s corporate governance systems before backing it.
A slightly depressing practical point is that companies organised by feminists have a more than usual number of activists seeking to distract, obstruct or suppress them. Good corporate governance and thoughtful, properly-recorded decision-making will provide the best defences against allegations of wrongdoing.
This topic therefore merits the attention of those of us privileged to serve as directors and trustees, whether of listed leviathans or of grassroots growth groups.
Types of company
Firstly, a word on types of companies. Companies come in various forms; the most common is the company limited by shares but in the context of the charitable, not-for-profit or voluntary sectors, companies limited by guarantee are also frequently used, as are charitable incorporated organisations (CIOs) and community interest companies (CICs). For the purposes of this article, the law on directors’ duties is the same, regardless of the type of the company. To confuse matters further, in some charitable organisations, the terms trustee and director may be used interchangeably; in any event, in broad terms, trustees of an organisation, whether or not it is strictly a company, will be subject to duties very similar to those covered in this article.
Directors’ duties
Directors and trustees have legal responsibilities that are regarded as “fiduciary” in nature. This means that a director or trustee must put the interests of the organisation she serves above her own interests and must think about the organisation’s stakeholders in all the decisions that she makes. In addition, she must act honestly and responsibly, with the skill and care that would reasonably be expected of a person in her position.
The Companies Act 2006 sets out seven specific duties that directors must adhere to, including:
To promote the success of the company. To exercise independent judgement. To exercise reasonable care, skill, and diligence. To avoid conflicts of interest. Not to accept benefits from third parties. To declare interests in proposed transactions or arrangements. To exercise powers for proper purposes.
The duty to exercise independent judgement
The duty to exercise independent judgement means that directors must not uncritically adopt the views of others, and must make decisions based on their own informed judgement. In making their decisions, they must consider all relevant factors and think critically; this may involve seeking out and considering alternative viewpoints.
Why focus on this particular duty? Where an organisation has been established to pursue a particular campaign or to promote a particular cause, the board is likely to comprise directors who all feel the same way about that cause. This type of cause-driven organisation therefore seems particularly exposed to the risk of “groupthink” interfering with the board’s independent judgement.
Groupthink occurs when members of a group conform to the opinions of the majority, rather than considering alternative viewpoints. This can lead to directors overlooking important information or ignoring potential risks. This may be from fear of disagreeing with a majority view or from a lack of diversity on the board meaning that the directors all agree with each other.
The former is unforgivable in a director. Accepting the responsibilities of a director means you have to be prepared to put forward an unpopular view or to ask difficult questions. Indeed, on some boards, where a thorny issue is being discussed, one director is sometimes designated to present the opposing view to help the board to ensure they have considered all viewpoints.
Diversity of perspective
Lack of diversity is the particular feature of campaigning and charitable organisations that increases the risk of groupthink. The directors of a company may be drawn from a pool of leading founders or their associates; the work and responsibility involved in being a director (usually on a voluntary basis at this level) is such that it will only be undertaken by strong supporters of the cause; and those who disagree, or are neutral, are unlikely to want to take on the commitment.
The executive team – those carrying out the company’s mission day-to-day – may well be motivated by great passion. The directors (or other directors if the executives are also on the board) must remain alive to the possibility that this could blind the executive team to potential risks or challenges. The role of directors, particularly non-executive directors, is to adopt a more dispassionate approach and not let their respect for, and often friendship with, the executives prevent them from discharging their duty to constructively, but robustly, challenge the executives’ proposals. A good executive team will welcome this challenge and appreciate the value added by strong corporate governance.
Practice points
Disagreement in the boardroom is healthy. A cosy boardroom is a risky boardroom. That said, disagreement should always be expressed politely and discussions should be constructive. Try not to recruit new directors in your own image. If the company is large enough, the directors should prioritise achieving diversity of views and backgrounds. This does not mean that you have to recruit people whom you know to be actively opposed to the company’s purpose! If you know the directors all feel the same way about a particular issue, make a point of honestly considering opposing perspectives. Keep minutes! Minutes of a meeting signed by the Chair of that meeting are a definitive record of the proceedings of that meeting. Minutes should summarise the discussion, rather than trying to create a verbatim record but should encapsulate the range of views considered. Keep the best interests of the company at the top of your mind. Consider whether a particular course of action or campaign is promoting the purpose of the company or could in fact harm it. Avoid the trap of thinking that, because your cause is noble, anything you do in pursuit of that cause must be justifiable. Consider complaints honestly. The board may receive complaints that it thinks have been made in bad faith, but it should take the time to reflect on whether any may have merit. The directors may decide (and record their decision!) to apply a filter, focussing on complaints that demonstrate knowledge and genuine concern on the part of the complainant, while ignoring those at the more, shall we say, ranty end of the spectrum or those that are all in identical terms, suggesting a spamming campaign.
Questions to ask, especially when the directors are in vehement agreement, include:
What are the arguments against this course of action? What factors might we have failed to consider? To whom might we have failed to listen? Is it possible we are mistaken?
Closing
The issues outlined in this article are relevant to all campaigning groups, not just feminists; moreover, I should clarify that no individual feminist group has inspired this article. However, we can probably all identify campaigning or charitable organisations that appear to have closed their ears to opposing views and their minds to the possibility that they have lost their way. Some of their actions are so transparently self-harming that it is hard to believe that the board can have considered a full range of viewpoints and asked robust questions about the potential risks. These organisations are often large and well-established, with the contacts and resources to recruit (and pay) experienced directors and trustees with diverse backgrounds. If, even with these advantages, they can exhibit such poor corporate governance, how much more must our fledgling organisations guard against falling into the same traps.
