Author: Audrey Ludwig

Red tape or essential protection? Third party harassment revisited.

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the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of  the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.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.

But Is It Cricket? Giving Women A Sporting Chance

Lia Thomas, a swimmer, born male, is now routinely winning women’s swimming races in the United States. Soon we are bound to see a similar situation in the UK. Do the female athletes who lose team medals and opportunities in these situations have any legal recourse?

I think they may have. I’m going to consider a hypothetical. 

 I am consulted by Jane, a top female sports woman. She is third best in the country in her sport, which combines speed, strength and skill. Normally this means she makes the big competitions for her home nation, England as there are three places in the team. This year the rules were changed to allow trans women to compete in the women’s competition if they met a requirement to lower testosterone to a certain level for one year. As a result, May, a trans woman, is eligible for a place on the women’s team in Jane’s sport. May matured through male puberty before transition, and was an elite male athlete in the same sport as Jane, and under the new rules is certain to make the top 3.   Jane, as the fourth-placed athlete in this event, will miss out on competing for her country. She feels the rules to be unfair and she will lose out financially and in sporting terms.

I am not in this piece going to discuss the merits of Jane’s view, but how a claim under the Equality Act would be framed. 

I will assume the identity of the organisation she will challenge is clear and her claim is in time. I will also assume the organisation is not a public body so PSED not engaged, but the competition organiser is a provider of services to the public, so Jane can bring her claim in the County Court in England and Wales or the Sheriff Court in Scotland under part 3 of the Equality Act. 

So, with any claim where the problem is a rule (or rule change), the most obvious starting point is indirect discrimination, under s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

In this case we have a “provision, criterion or practice” of allowing not just biological females into the sport but also MTF trans identifying people who meet certain criteria relating solely to testosterone levels.

The rule applies to all competitors, whatever their protected characteristics. It will be indirectly discriminatory on grounds of sex if it puts the women to whom it is applied at a particular disadvantage compared to the men to whom it is applied; and puts Jane at that disadvantage; and the competition organiser can’t show that it is a proportionate means of achieving a legitimate aim. 

Does it put Jane, as a biological women, at a particular comparative disadvantage?  It doesn’t have to be all or even most women. I suspect she would point to evidence that she, as with the average biological woman, is likely to have smaller heart, lung capacity, shorter limbs, difference in pelvis, etc than a comparable trans woman who had gone through male puberty. It can even affect only a few women, as long as there is  a causal link to the protected characteristic (this is known as small group disadvantage).

Jane’s argument would presumably be that the difference in performance is so great between the average elite athlete female and the average elite athlete male who has gone through male puberty (even those whose testosterone is lowered) that it makes the rule inherently discriminatory.

So her argument is she is put at that disadvantage.

So then the onus is on the organisation who made or apply the rule to show it is “a proportionate means of achieving a legitimate aim”.

Obviously a court would consider all the technical, sociological, scientific evidence for and against such a rule.

Now this is where s 195 of the Equality Act comes in.

In discrimination law, the starting point for any rule generally is no discrimination at all. So one category open for all. However, that would be wholly unworkable. It would mean no Paralympics, no women’s sport or no age-restricted events. So Equality law recognises that it is legitimate to impose some categories to allow groups who would always lose if young, non disabled men could always compete, to limit their events to people of a particular protected class.

S195 Equality Act identifies how one set of categories, relating to sex is permissable:

195 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

Ignore the reference to gender, technically they mean sex.

Whilst this, on the face of it look permissive, when considered within the context of an indirect sex discrimination claim, it could be a part of the duty not to indirectly discriminate against biological women.  It relates to the issue of whether the rule is determined as “a proportionate means of achieving a legitimate aim”. The onus is on the sports body to show that it is.

The fact that s195 is written into the Equality Act is a strong indication by Parliament that use of such an exception is not only okay but could be necessary to achieve fair competition. Consideration of why the sports organisation did or didn’t use the exception(by reference to strong evidence from consultation, research and analysis from all potentially affected people) will be key.

I cannot predict how any particular claim might be resolved (though studying the recent World Rugby process  here for determining categories is instructive). But given that women’s sport has for the first time started to be commercially important, it is very likely that a claim for indirect sex discrimination will be made soon.

If I were Ruler of the World….(part 1)

On twitter, after a period of great exasperation I wrote a thread that started: “I am coming to the view that, if or when I am ruler of the world, anyone who wants to speak about UK Equality[1] law matters on social media has to first sit an exam which I will set.”

I then set out a list of six questions to be answered, in this mythical situation.  Then I promised to provide suggested answers, so here goes with answers 1 and 2 (I will answer the others in later blogs):

1.  What are the nine protected characteristics?

In the Equality Act 2010, nine characteristics were identified as ‘protected characteristics’. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health. They are:

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

They are then defined in ss5-12 and 17 and 18 of the Act.

It was pointed out by my good friend, lawyer Jo Chimes that, as I mentioned UK, there is a 10th in Northern Ireland, namely political opinion (see The Fair Employment and Treatment (Northern Ireland) Order 1998).

So, if you want to bring a claim under the Equality Act you have to show how the conduct complained was linked to one of the protected characteristics; and how you are protected by the Act.

2. What are comparators and why are they important?

If you want to show you’ve suffered unlawful discrimination or bring an equal pay claim, you need to compare your treatment with the treatment of someone else who doesn’t have the same protected characteristic as you. The Equality Act calls this person a “comparator”.

So, a women arguing she was overlooked for a payrise because of sex discrimination would need a man as a comparator. If arguing it was because of her race, it would need to be someone not of her race and so on. You cannot use someone who shares your protected characteristic as a comparator.

In direct discrimination claims (s13), you have to show evidence of less favourable treatment (because of a protected characteristic) than a valid comparator. The comparator can be a real person, similar in all material circumstances but who doesn’t share your PC, or a hypothetical comparator (a thought experiment based on what it is likely to have happened in the same situation if there was a real comparator). Lawyers in these cases can spend considerable time arguing about what is a valid hypothetical comparator for the particular circumstances.

In Chapter 3 of the Act, equal pay claims require a real comparator; so a hypothetical comparator is not allowed. There is some concern that if gender (actually sex) self ID is introduced, this could defeat an otherwise valid, individual equal pay claim.

In indirect discrimination claims (s19 ) and duty to do reasonable adjustments (s20), comparators are also required but in a way too complex for this introductory exam.

So, those are my suggested answers. Will post parts two and three, when I get some time.

[1] [1] Ive correct my spelling mistake from the original

How To Reconcile The Seemingly Irreconcilable

This is a talk I gave at the FILIA conference on 17 October 2021. 

I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.

The two seemingly irreconcilable principles are

1.    Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic.  No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.

Against that

2.    “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same. 

So how to reconcile this?

Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration. 

Whilst it predates the Equality Act 2010, it follows the same principles.

The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council. 

The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’.  A one size fits all approach. 

This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.

It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.

On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence. 

Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.

The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.

It required:

“due regard for the need –

(a) to eliminate unlawful racial discrimination, and 

(b) to promote equality of opportunity and good relations between persons of different racial groups.”

This wording clearly is the basis for s149 Equality Act  

s149 Public sector equality duty (PSED)

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing. 

In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women. 

Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity. 

It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).

Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally. 

The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.

The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities. 

That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –

“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”

She continued:

“Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”

So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women?  Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?

Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.

She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.

“After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”

She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men.  Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”

Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.

The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.

LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:

“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”

This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all. 

“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.

To Boldly Go – Why “going beyond the law” risks unlawful discrimination

Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.

The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An  activist’s dream. 

It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.  

However, this may be a trap for the unwary.

Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.

The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.

A group of academics and students from the University and elsewhere promptly responded in the form of an Open Letter to the Vice Chancellor. Some are from the Law School and others are human rights academics. It is attached here: https://twitter.com/SVPhillimore/status/1395429598331129861/photo/1

It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”

It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?

What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.

The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to  a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.

 The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged. 

Yet in equality law, recognising and balancing conflicts of rights is bread and butter practice. There is plenty of caselaw from Ladele v Islington BC https://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html to Lee v Ashers Bakery Case https://www.supremecourt.uk/cases/uksc-2017-0020.html .

Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “

Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.

As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.

Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”

I have previously  set out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.

There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers  to address long-standing underrepresentation was flawed and discriminated against a white man. 

So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.

Transphobia, Feminism and the Liberal Democrats

By Audrey Ludwig, Solicitor and Tim Pitt-Payne QC

On Saturday 19th September, the Liberal Democrats published a statement setting out their understanding of what constitutes transphobia.  It is a remarkable document, deserving careful attention.

Debates about whether a particular view, person, or body is transphobic often misfire, because the participants are operating from unstated but differing definitions of transphobia; they talk past one another and make no progress.  In principle, a discussion about the meaning of transphobia could be useful and helpful. 

But the Liberal Democrat document is not intended merely as a contribution to wider social debate.  The online statement announcing its adoption made clear that it would be used to support the Party’s disciplinary processes.  In other words, individuals who are guilty of transphobic behaviour – as defined in the document – could be suspended from the party or expelled. 

The document is in three parts: a brief definition of transphobia; further discussion of that definition; and an appendix of examples.

The brief definition is this:

‘Transphobia’ is the fear or dislike of someone based on the fact they are trans. Transphobia, whether through words or action, may be targeted at people who are, or who are perceived to be, trans or trans allies.

In the subsequent discussion of this definition, we are told that the term “trans” is “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.” There is an express statement that people are not required to have undergone any medical or social transition to be considered trans, and a cross-reference to the definition of “trans” in Stonewall’s glossary.

Four non-exhaustive examples of transphobic behaviour are then given, some of which go well beyond what would be regarded as either unlawful harassment on grounds of gender reassignment or an objective threshold standard for hate crime.  The examples are:

* attempting directly or through advocacy to remove trans people’s rights;

* misrepresenting trans people;

* abuse of trans people; and

*  systematically excluding trans people from discussions about issues that directly affect them.

These are more fully explained in the appendix.

As to the first example, there is no further explanation of what type of rights are being referred to.  No doubt advocating changes in the law that were regarded as weakening the position of trans people – for instance, arguing that the conditions for a GRC should be more restrictive – would come under this heading.  But does this example go further?  Given the breadth of the document generally (see further below), it is likely that the term “rights” would not be understood solely in legal terms, but would also cover anything that trans people are currently able to do as a matter of practice.  For instance, arguing for the exclusion of trans women from women’s rugby would probably be viewed as “attempting to remove trans people’s rights”. 

The document goes on to distinguish between different levels of blame.  For genuine “errors and misunderstandings”, an apology or retraction will usually suffice.  However, repeat offenders should be dealt with more severely: “this is especially true if they have been challenged by others, and they have been pointed to resources to help them learn about trans rights and transphobia.”  In other words, re-education and a chance to repent are to be the first resort,  with the possibility of disciplinary action and expulsion to follow for those who persist.

The Appendix then sets out a number of further examples of transphobic behaviour, again making clear that they are not exhaustive. 

Under the heading “denying trans people’s gender identity or refusing to accept it”, there are references to deadnaming, misgendering, and mockery, followed by this passage:

Using phrases or language to describe trans people which are designed to suggest that trans people are a separate category of person from the gender they identify as or that their gender identity is not valid. Current examples include referring to a trans woman or non-binary person as a “biological man” or a trans man or non-binary person as a “biological woman”, which eradicates the trans person’s gender identity in favour of their biology at birth.

The first sentence is clearly intended to enforce the orthodoxy that trans women are women and trans men are men.  Any deviation from this – for instance, “trans women are not literally women, but (with limitations) ought to be treated as if they were” – would doubtless be seen as treating trans women as a separate category from the gender with which they identify. Taken at its highest, it could be said that this definition treats both the Equality Act and Gender Recognition Act as “transphobic”, since both contain provisions identifying circumstances where trans people are treated as a separate category.

The second sentence is even more striking.  In some contexts, it requires the denial of simple biological fact.  This is the case, even if you believe that it is possible for a human being to change their biological sex – given that very many trans people will have undergone no medical transition whatsoever, as the document itself expressly recognises.  To say that a person, or a group of people, identify as female but are biologically male is not only a factual statement, it is in some contexts a highly relevant statement: for instance, when considering how they should be housed within the prison estate, or whether they can fairly compete in sport against natal women.  Of course there are contexts in which to refer to biological sex would be hateful:  just as, when adoptive parents proudly describe their children’s achievements, it would be hateful to respond, “But you’re not their biological parents.”  But in some contexts – for instance, assessing the risk of inherited health conditions – biological parenthood is relevant:  and likewise, biological sex.

Given the way in which this paragraph is drafted, it is hard to see how there could be any meaningful advocacy of gender critical views within the Liberal Democrats.  In particular, it is hard to see how one could either oppose gender self-ID, or advocate for maintaining  sex-based rights or single sex spaces and facilities, or for keeping the provisions in the Equality Act that make such things possible.  The document therefore effectively requires certain policy positions to be supported, on pain of a finding of transphobia and potential expulsion.  Dissent is to be rooted out, not by reasoned discussion and debate, but by the exercise of power.  It is authoritarian, and illiberal, for a party to close down internal debate in this way on issues of live political controversy.   

Under the heading “misrepresenting and excluding trans people”, one finds this example:

Making mendacious, dehumanising, demonising, or stereotypical allegations about trans people or their cisgender allies. This includes spreading the idea of a “trans conspiracy” which asserts undue influence over media or government or claiming that cisgender allies support trans rights initiatives out of fear or bribery rather than a genuine belief that trans rights are human rights.

There is a sad irony about the final sentence.  The very existence of this document will foster the making of such claims.  When Liberal Democrats advocate for trans rights, they can be expect to be met with the retort, “you’re only saying that because your party says that you must”. 

In all of this discussion, there is a glaring omission.  At no point is there any recognition of any potential conflict between the rights and interests of trans people and of natal women. Dealing with competing rights is a familiar aspect of human and equality law: for instance, a policy benefiting one protected class may indirectly discriminate against another, requiring a balance to be struck.  The document allows no space for feminist advocacy that recognises the need for such a balance.  There is no acknowledgment whatsoever that campaigning against self-ID, or for sex-based rights, can be motivated by something other than prejudice or bigotry.  The implied message of the document, therefore, is that when the interests of women come into conflict with those of other groups, then it is for women to give way without question or complaint.  Not only is this an illiberal message:  in its practical effect, it is a strikingly misogynist one.

Discrimination: Only Unlawful if It Is Unlawful

Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)

My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder. 

Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?

Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.

Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.

Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy. 

But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.

“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.

“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.

“This presents a clear safety risk when transgender women play women’s contact rugby.”

This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”

But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic. 

So a useful list of things to note when initially considering if something is unlawful discrimination:

Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.

Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.

Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination. 

These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more. 

Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.

Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment. 

So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team. 

However, there is an exception allowing for single sex teams. S195 Equality Act says :

Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination. 

Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex. 

Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.

So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.

Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.

Legally this is not a “trans rights issue” it’s a “sex rights issue”. A blog about boxes

The discussion on reform of the GRA isn’t about protection from discrimination – it’s about who comes within the classes of ‘men’ and ‘women in the Equality Act 2010.

The way the issue is portrayed by lobbyists, most politicians, many corporates and the media, is legally wrong.

The “trans rights debate”, in terms of equality law, isn’t about rights for trans people not to be discriminated against or harassed unlawfully because they are trans. Properly, that right is already contained in Section 7of the Equality Act 2010, under the protected characteristic of “gender reassignment” and covers people, anywhere along the “transition” route whether they have had surgery, hormones or not, and whether they even progress down that route or not. I have taken, and will, no doubt continue to take, claims about discrimination on grounds of gender reassignment, regardless of what other possible legal changes occur around the Gender Recognition Act 2004 (more of that later).

No, this is, in law, a sex-based rights argument about who comes within the class of men or women in Section 11 of the Equality Act. 

But let me go back a bit. To truly understand the Equality Act 2010, you need to understand about protected characteristics, contexts and comparators. The Equality Act is complicated. It has a lot of common principles and then a lot of exceptions to make the Act workable and deal with specific needs and contexts.

Protected Characteristics (the boxes)

There are nine protected characteristics or classes (PCs). They are sex, race, religion and belief, sexual orientation, gender reassignment, disability, age, pregnancy and maternity, and marriage and civil partnership.

Each PC is defined in Sections 5-12 (plus 17 and 18) of the Equality Act. The protected characteristics are essentially each a legal box. To be able to bring a claim, you must first show you fit into that box legally by meeting the relevant definition in the box; whether it is the disability box, the age box or the sex box etc. 

All of us fit into several of these boxes, but in law you need to show, by evidence if challenged, how you fit into the box under which you are claiming protection. So, for disability discrimination you show how you are disabled. For religion and belief, you show how you meet the relevant test for religion or non-religious belief. This preliminary jurisdictional point on whether gender identity theory (or the non-belief in it) was a protected belief was the subject of the well-known Forstater case, now under appeal.

Some boxes have also sub-dividers which I will call sub-boxes; so for sex, are you a man or a woman? For sexual orientation whether you are sexually attracted to people of the same sex, opposite sex or persons of either sex? And so on.

These sub-boxes are important for comparators, which I will explain later.

Each protected characteristic pleaded must be considered separately as the newly elected Conservative Government, which came in just as the Equality Act was passed, never enacted a clause contained in the Equality Act which would have allowed for cases on combined discrimination grounds. 

Comparators

The next aspect you need to understand are comparators. For some types of discrimination, you must show evidence of what the act or decision caused to happen to you by reference to the comparative treatment of another very similar person who doesn’t share your PC. 

You must provide evidence regarding that other person; they will often be a real person who is in same situation but not sharing your PC (ie your box or sub-box). If there is no one to compare yourself to, you can ask the court to use a hypothetical comparator. So, a woman who claims direct sex discrimination will have to show evidence she was treated less favourably than a man – either by comparison to a real man or by comparison to how a man would have been treated in the same situation.

Importantly you cannot use someone of your own box or sub box as a comparator. So, if a woman is discriminated against compared to another woman that is not unlawful direct sex discrimination. The comparator needs to be a legal man. And this is true of other characteristics. So, someone who is sexually attracted to the same sex is compared to someone who is not attracted to the same sex.

How terms like sex are defined and in which sub box you fall is key to success or failure to even starting a discrimination claim.

Types of Discrimination, Contexts and Exceptions

There are different types of unlawful discrimination. They are direct (s13) indirect (s19), harassment (s26) victimisation s27); pregnancy and maternity discrimination (s17 and 18); discrimination arising from disability (s15) and failure to make reasonable adjustments (ss20-21).

The context of discrimination is important. If you cannot fit into any context covered by the Equality Act, you cannot bring a claim under this Act. For example, if a random person in the street racially abuses you, you cannot bring a claim under the Equality Act against them. It might be a hate crime, but this is dealt with under criminal law and not the Equality Act. Some acts (e.g. racist assault at work) may be both a claim under the Equality Act and a hate crime and dealt with very differently.

Practically all of the Equality Act is about civil, not criminal, matters. Primarily, any alleged breach is dealt with by civil action taken in the County Court, Employment Tribunal or First Tier Tribunal (Special Educational Needs and Disability Tribunal) depending on issues. (There are separate issues arising from the Public Sector Equality Duty and the possibility of judicial review, which are beyond the scope of this article).

Finally, and importantly, there are many, many exceptions in the Equality Act which are designed to make it workable.

How to analyse a discrimination claim?

To show how I would analyse possible discrimination, these are the steps I would take if a client was asking for advice about a possible unlawful discriminatory act.

  1. What is the protected characteristic my client is relying upon?

For illustrative purposes for this blog, I will look initially through a sex-based lens to show how the Act is defined; but it is important to consider possible conflict with others protected classes’ rights

Does the issue relate to PC of sex? The Act defines sex as 

“11. Sex

In relation to the protected characteristic of sex—

(a)a reference to a person who has a protected characteristic is a reference to a man or to a woman;

(b)a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

Man and woman are both defined in s212(1), 

“man” means a male of any age;

“woman” means a female of any age.

The Conflict With Competing Trans Rights

And this is where the conflict with competing trans rights occurs. It is essentially a dispute over which sex sub-box someone is determined by law to occupy for the purposes of sex discrimination and harassment.

This is not about the majority of trans people, who self-identify. In current law, self-identifying trans people retain their birth sex when the issue of sex discrimination arises. So, for example, a self-identified transwoman who is harassed at work would typically claim on the basis of her PC of gender reassignment, rather than a sex discrimination claim. 

Legally, as well as all those who were born and “live” in their particular sex sub box of man and women there is the issue of some of the c5000 trans people currently holding Gender Recognition Certificates (GRC) in the UK. 

Under Section 9 of the Gender Recognition Act 2004 (GRA), holding a GRC “changes” the person’s gender. But the statute is very badly worded and conflates sex and gender, when it actually means legal sex. The effect of s9 (1) of the GRA is to move a person from one sex sub box to the other.

Section 9(1) says that this is “for all purposes,” but in fact s9(3) then goes on to qualify the principle by making it subject to “provision made by this Act or any other enactment”. So, essentially this change is limited by what this and other Acts say, meaning that one can still in some circumstances distinguish biological and legal sex for some purposes. As I say, badly worded. Is it also worth commenting that subsequent statutes have not made clear when s.9(1) GRA does or does not apply.

So, this change of sub-box only applies currently to those with GRCs. However, many people, for reasons unrelated to the Equality Act, want to change this process.

All of the political, rather than legal, arguments are about whether this GRC process should have any element of “gatekeeping” (the steps in the GRA needed to obtain a GRC) or whether the process should just rely on statutory declaration so that anyone could just change their sub-box.

So much of the wider public discussion seem only to be about the impact on trans people of changing or not changing the GRC process, rather than on anyone else, whom they either ignore or dismiss as reactionary bigots. 

However, as a discrimination solicitor, what I find more worrying is that there has been little or no discussion about the legal effects of such a change on sex discrimination and comparable issues like equal pay (chapter 3 Equality Act) or reporting on the badly named “gender pay gap” (The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017). Many gender critical feminists are more focussed on the potential impact on single sex exemptions (which I share but won’t focus on here).

I can find very little good analysis even on how many people are estimated to jump from one sex sub-box to the other. Nor on what impact it will have, whether on the existing rights of those in the sub box or what happens if a party to a sex discrimination claim has changed which sex sub box they fall in. It is not even clear how many trans people there are in the UK, with the Government estimate being between 200-500,000. For Equality Act purposes, how many of this demographic are in employment or education? How many use which services? Or, if there is any industry (such as IT small businesses) where there are disproportionately higher numbers of trans people, will that have an effect on sex based equality rights in practice? 

The truth is I don’t know answers to these questions; and I want someone to do the necessary objective research and analysis. 

However, the #NoDebate stance of Stonewall and their allies, which has fuelled no-platforming and complaints about anyone seeking to do academic study deemed by an unseen mob not to follow a pro trans rights line has meant this otherwise normal objective enquiry and legal debate has not happened.

There are a few exceptions. For example this is an article which does attempt to do so and worth reading. But we need more academic studies to look objectively at these issues.

So back to my theoretical client. What is the next issue I have to address?

What type of discrimination is alleged? For example, is it:

“s13. Direct discrimination

(1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

So, we need to show: 

  1. A comparator (a real person or hypothetical one, drawn from evidence showing what would have been done to a real person) of the comparator class (so if our client is a woman, her comparator is a man)
  1. that the alleged act, happened because of the protected characteristic

Or another example: 

“19. Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.”

A rule or policy, applied to everyone, applies to this client, which has a disadvantage to some (including this client) because of their PC compared to others; and it cannot be objectively justified. 

In both direct and indirect discrimination there is reference to comparators. So, who the comparator is and which sub box they fall into is a live issue.

Next, what is the context in which this alleged discrimination took place?

The Equality Act only applies in certain contexts including work, some housing, education, some transport, provision of services to the public, some clubs and associations, trade unions, public functions, occupational pensions and insurance. The law is complicated so you cannot assume whether the Act applies or not without careful analysis. Certainly don’t listen to odd voices on Twitter saying it does not apply to you if you are self-employed (as some are covered), a contractor (as sometimes covered), or the alleged discriminator is not your employer (sometimes covered).Finally, and very importantly, does it fall into an exception in the Act? I could write another whole article on exceptions, so will leave it there.

Only after considering the client’s own evidence and jumping through all of these hoops can I say it could be unlawful discrimination. Be warned: at this point, I am yet to see the other side’s evidence which comes out as litigation proceeds, so have to review constantly the strength of the claim. 

So, discrimination claims are legally complex and challenging which is probably why I enjoy this area of law.

Conclusion

Going back to the title of the piece, the current toxic debate about “trans rights” is actually a legal fight about the sex sub boxes and who is legally in which? If someone gets a Gender Recognition Certificate it does now and will impact on whether you can use that person as a comparator. So, changes to the GRA affect sex discrimination laws profoundly. The fact that the “gatekeeping” has kept the numbers low means it has not been an issue to date. There are not huge numbers of sex discrimination claims anyway, so the issue is largely unlitigated, as yet. In addition, the breadth of the definition of gender reassignment in the Equality Act (which does not require surgery or any treatment) means trans people have significant protection against unlawful discrimination just for being them in key areas such as work, education and access to services.

However, if the estimates of numbers of trans people are correct, then thousands or hundreds of thousands may be eligible to apply for a GRC. If the law is changed to allow for self-identification, this would increase the risk of adverse impact on sex based rights in some cases by, in practical terms changing who can and cannot be used as a legal comparator. Some people may not be able to pursue claims for direct or indirect sex discrimination because of it. Yet this change has hardly been discussed, analysed or researched.

This is why we need a proper debate.

Biography

I am a discrimination solicitor who, unusually, puts my head above the parapet on social media. I tweet openly as @AudreySuffolk about my subject. As part of my commitment to public legal education, I give my general opinion where I think people have got rights under equality law. More recently, I’ve done so with regards to the heated gender identity/trans rights versus women’s rights conflict. I tweet politely and try to assume interest and goodwill from those who correspond with me. Sadly, this is seldom replicated by some who engage with me with hostile condemnations (now known to me as the “die in a fire scum TERF” brigade). I believe that people who come under all nine protected classes have equality rights, but sometimes those rights conflict and have to be balanced, in accordance with the principles of UK Equality law

For this, I have been complained about to my employers, to our funders and to our professional network, despite these explicitly being my own thoughts and not necessarily shared. Luckily, all the organisations have shown backbone, but others have not been so fortunate.