The hearing next week before the Supreme Court of For Women Scotland v Scottish Ministers is a big deal.
Previous cases in the appellate courts have had serious implications for the impact of gender reassignment on women’s rights. Three in particular spring to mind: Croft v Royal Mail Group (2003), in which the Court of Appeal speculates inconclusively about what degree of surgical or medical “transition” ought to be required before a man should be allowed to use women’s facilities in the workplace; Goodwin v UK (2002), in which the European Court of Human Rights laid the foundations for the Gender Recognition Act 2004; and Chief Constable of West Yorkshire Police v A (2005), in which members of the House of Lords came up with the eye-popping notion of a transsexual who was “visually and for all practical purposes indistinguishable” from a member of the opposite sex, and opined that it would be unreasonable for detainees to be unwilling to be searched by “a trans person of the same sex” (ie a person of the opposite sex).
All three cases have something striking in common: there was no-one in court whose job was to represent the interests of women, and women’s rights were in each case casually swept aside. This appears with particular starkness at ¶91 of the judgment of the ECtHR in Goodwin:
No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.
The alert reader will notice who in particular is meant here by the “society” that is expected to tolerate a certain inconvenience: women. The reader both alert and well-informed will understand by now that “inconvenience” has turned out to stand for things like being gaslit, tricked, shamed or coerced into sharing communal showers or changing rooms with any man who says he is a woman; being required to submit to a strip-search conducted by such a man; being tricked into submitting to intimate medical procedures at the hands of such men; or being imprisoned with male sex offenders.
Against this background, FWS v Scottish Ministers makes a refreshing change. The appeal is brought by a feminist organisation with the express purpose of defending women’s rights. For the first time, an appellate court considering these issues will be required to treat women as human beings with agency and rights of their own, and will be asked to give women’s rights and interests their full weight. It’s going to be a novel experience.
The written arguments of the parties and the intervenors have now all (with the exception of Amnesty UK’s intervention) been published. The arguments themselves make for pretty dry and technical reading, but we also have the benefit of analysis from various commentators. The purpose of this post is not to add to that, but to collect together a list of links for anyone interested in the issues. I’ll try to keep this page updated with any further commentary that becomes available (or comes to my attention) between now and the end of the hearing — so if there’s anything I’ve missed, please let me know in comments.
Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,
We have appealed on Twitter for analysis arguing that the Scottish Government should win. We haven’t heard of much, but there are these links:
FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.
Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.
I wrote last week about why it’s necessary to keep all men out of spaces that are supposed to be for women only. I ended, on the subject of women traumatised by male violence:
Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”
Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.
I had put a hypothetical scenario of this kind when I was cross-examining a member of Edinburgh Rape Crisis Centre’s board in Adams v ERCC last January. The witness agreed agreed that this was perfectly plausible:
A Muslim woman who does not have mother tongue English, who is a rape survivor, makes an appointment to see a support worker and she is assigned to Mridul. She is told all the support workers are women and she may presently find herself alone in a room talking about her sexual trauma to Mridul Wadhwa.
The witness gave clear, definite evidence that although she believed that it was Wadhwa’s practice to disclose at the first interview with a service user that he was a “trans woman”, so far as the ERCC board was concerned, he had no obligation to do so. It was perfectly legitimate for him to counsel a rape victim over a number of sessions without disclosing his true sex.
The point of my question was to demonstrate to the tribunal that the version of gender identity theory to which ERCC was signed up was so extreme that its witnesses would see nothing wrong with this situation if it should arise. The witness obliged.
At the time that I put that question, I had no reason to believe that anything like this had ever actually happened in a rape crisis centre in the UK. Shockingly, I know better now.
Since the hearing in Adams, I have had disclosed to me the testimony of a woman who sought counselling at a rape crisis centre. She was given one to one counselling with a counsellor who presented as female and referred to himself as a woman. The service-user continued to believe that her counsellor was a woman throughout all her counselling sessions until the last. In the last few minutes of the final session, the counsellor referred to himself as a “trans woman”. The service-user understood only then that she had over a series of sessions over several weeks been meeting a man, one to one in a private room, and confiding in him about her sexual trauma.
I am not a journalist, and I cannot independently verify this story. But I find it wholly credible, particularly in light of the evidence that was given in Adams, and I have no reason to doubt that it is true.
I want to apply yesterday’s dazzling insight that peanuts have to be left out of peanut-free meals to the words of the Equality Act and the specific question before the Supreme Court in For Women Scotland v Scottish Ministers, to be heard later this month. This is another fairly short point, though a little more technical than yesterday’s.
Broadly, the job of the EqA is to prohibit discrimination because of the various protected characteristics. But there are exceptions, so that it remains lawful for director of a play to insist that Juliet is played by a girl and Romeo by a boy, or for a charity to define its beneficiaries by reference to race, national origin or sexual orientation.
Paragraphs 26 and 27 of schedule 3 make it lawful to provide separate-sex services, and single-sex services, in situations engaging considerations like bodily privacy and dignity. They are expressed in general terms: what’s permitted is providing “single-sex” services or “separate services for persons of each sex”. Obviously that means excluding persons of the other sex. And the exclusion can only be a blanket rule, or the service can’t truthfully be described as separate or single-sex, just as you can’t describe a meal as “peanut free” if you sometimes put peanuts in it.
That much is straightforward, or ought to be. (There is in fact plenty of dissent to it out there, some of it undeniably heavyweight. Nevertheless, I think the law is clear.)
The question for the Supreme Court in FWS is whether the protected characteristic of sex in the EqA — whether someone is regarded as a man or a woman — is affected by section 9(1) of the GRA, so that a man with a gender recognition certificate declaring him to be a woman counts as a woman for the purposes of discrimination law. In other words, whether “sex” in the EqA just means sex; or whether it means sex except for people with GRCs, in which case it means the sex they are deemed to be because of their GRI. We can call these two possibilities “sex” and “certificated sex” for short.
The answer to this question determines what kind of discrimination a man with a GRC declaring him to be a woman is subjected to if he is excluded from a women-only service.
The law has developed a thought experiment, complete with imaginary “experimental control”, as the way of finding out whether someone has suffered discrimination for a particular reason. You don’t have to be a scientist to use experimental controls: we all do it pretty intuitively.
Suppose your desk lamp isn’t working. Is it the bulb? Is the socket it’s plugged into live? Is it the fuse in the plug? Is the switch in the “on” position? You find out which is the culprit by trying different things one by one. You change the bulb, keeping everything else the same. Does it light? If so, the problem was the bulb. If not, you put the old bulb back, and try the switch in the other position. Still no light? Switch the switch back, and plug the lamp into a socket you know is live.
Similarly, if Chris is refused entry to the women’s changing room on account of his obviously male appearance, is that because of his sex? The common sense answer is “yes”. But a GRC transcends (or confounds) common sense: if it operates in the context of the EqA, what matters is Chris’s certificated sex, not his actualy sex, so it tells us that Chris is a woman. To find out whether Chris has been excluded because of his sex, we have to compare him with someone who is of the opposite sex, and ask whether that person would have been excluded, too.
So, obedient to the pretence required of us by Chris’s GRC, we set to work constructing a comparator. We say “Chris is a woman, so a person of the opposite sex is a man, let’s call him Christopher. This is a women-only space, so Christopher would have been excluded just like Chris. So Chris wasn’t excluded because of his (deemed female) sex, because a person of the opposite sex would also have been excluded.” (In truth, the chances are no-one will ever do anything to Chris because of his “female” sex, because it’s almost certainly obvious that he’s a bloke.)
If we run the same thought experiment on the different PC of gender reassignment, we get a different answer. The law tells us that Chris is a woman (even while our senses tell us different). Chris is a woman with the PC of gender reassignment: although legally a woman, he is a woman not by physiology, but by legal deeming. Obviously a woman without the PC of gender reassignment — that is, an actual female woman — would not have been excluded. So we have our answer: the reason Chris has been excluded is because of his PC of gender reassignment, not his sex.
That means that excluding Chris can’t be justified under ¶26 or 27 of schedule 3, because those operate to permit sex discrimiation. But it may still be lawful to exclude Chris, because ¶28 of schedule 3 provides that it’s not unlawful to discriminate on grounds of gender reassignment in relation to the provision of single or separate-sex services, provided “the conduct in question is a proportionate means of achieving a legitimate aim”.
Remember, all this reasoning is proceeding on the assumption that that a GRC changes Chris’s sex for the purposes of the EqA. The weird thing about ¶28, on this assumption, is that it seems to say you have to work out whether the thing you did — excluding Chris — was a proportionate means of achieving a legitimate aim. But it’s always going to be — because, well, peanuts. If the space or service is single-sex, you can’t let a man in (even a man with a certificate), or in every sense that matters it’s no longer a single-sex space. A legal fiction can deem a man married to another man to be in a heterosexual marriage, or deem him to be female for pension purposes, etc, but it doesn’t actually change the reality or the real consequences of a male body (or even the real consequences of the theoretical possibility of a male body). It won’t affect the trauma reaction of the already-traumatised female user of that space, or the justifiable outrage and affront of the non-traumatised woman who looks up when taking her knickers off to meet the eye of a man in a space she was told was for women only. The fact that the man in question has a secret certificate at home in a drawer won’t — even if somehow she knows about it — make her feel any less embarrassed, angry or alarmed.
There are a lot of reasons why the Supreme Court should find for FWS, and this is only a relatively small one. But I think it’s pleasingly neat.
The reason I say that is that the “certificated sex” assumption leads you into this weird, artificial, counter-factual reasoning about when you can and can’t exclude Chris — and you end up apparently having to make a case-by-case assessment of something that can only be satisfactorily dealt with by way of a general rule, precisely because the “single-sexness” of the space is about what you tell the female users of the space, and whether they can trust you. It’s not really about Chris and his individual characteristics at all.
But as soon as you remove the GRA spanner from the works of the EqA, this bit of the machine starts running smoothly and rationally.
On that assumption — that s.9(1) of the GRA doesn’t affect the EqA — this bit of the law can recognise Chris as the man he looks like, and is. He’s excluded because of his sex, which for these purposes remains male. And that’s lawful under ¶26 or 27 if it’s lawful to run a single-sex space at all.
So what’s ¶28 for, on this hypothesis? Good question! I’m glad you asked it, because the answer is elegant and satisfying. The point of ¶28 is to make it lawful, where appropriate, to exclude not men, but some women from the space, because of their PC of gender reassignment.
Mostly, women who say they are men (“trans men”) will be perfectly welcome in women-only spaces. That’s because they are women, with female bodies. Their presence won’t affront, humiliate or alarm anyone, and they are likely to have the same needs as any other woman.
But some “trans men” have taken extreme steps to look like men. Women who do this can often do it quite successfully, for precisely the same reason that men who say they are women almost always remain very visibly male. The reason is testosterone. Testosterone is a powerful drug, and a one-way ticket. A man who has gone through male puberty will almost never be able to disguise its effects successfully in later life. But when a woman takes testosterone, she’s likely to acquire a much more male-looking physique, a broken male-sounding voice, facial hair and male-pattern baldness. So some women with the PC of gender reassignment really do look and sound pretty much like men, and there will be circumstances in which it is genuinely necessary to exclude them from women-only spaces for the sake of the other women in them.
Obviously, this is a fact-sensitive judgement which will depend on the particular nature of the space or service, who else is likely to be using it, how it is organised, and how convincingly masculine is the appearance of the trans-identifying woman in question. In other words, it calls for precisely the kind of “case by case” decision-making that ¶28 seems to envisage. The difference is that on this hypothesis — that “sex” in the EqA simply means “sex” —“case by case” makes perfect sense.
There’s an aspect of the FWS case (For Women Scotland v Scottish Ministers) due to be heard later this month in the Supreme Court that is so childishly simple that one worries that the cleverest judges in the land may be too clever for it. This isn’t about the legal arguments that the Court will have to grapple with. It won’t win the case: dry, technical arguments about statutory interpretation are what will determine the outcome. But statutory interpretation should be done on a foundation of reality and logic.
The point is this. Single-sex spaces for women can’t have men in them, because if they do, they’re not single-sex.
I told you it was simple. It’s like the “no peanuts” rule for a peanut-free dish. If you label a dish “peanut free”, you have to leave the peanuts out. All of them. The fact that lots of people like peanuts is no answer. Peanut-free dishes aren’t about those people: they’re about the people who may go into anaphylactic shock and die if they eat a peanut. It doesn’t matter if the peanut has been mashed to a paste, moulded into the shape of a walnut and scented with walnut oil, so that no-one looking at it, smelling it or eating it would dream that it might be a peanut. It doesn’t matter if it’s got a special certificate that says that for legal purposes it’s a walnut. It still needs to be left out of the peanut-free dish, or the peanut-free dish ain’t peanut-free.
I have reason for my worry. It may be a simple point, but it’s one that the House of Lords managed to miss in Chief Constable of West Yorkshire Police v A [2005] 1 AC 51. This is a pre-GRA case, so of tangential relevance at best to what the Supreme Court has to decide later this month, but it’s a troubling precedent all the same. Lord Bingham said:
In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.
This is essentially the “case by case” approach to deciding whether or not a particular man should be permitted to use women’s facilities. It still has proponents. “Oh, but surely this particular man — this man who has wished with all his heart that he was female since early childhood, who has “lived as” a woman for decades now, who has had all the hormonal, surgical and cosmetic treatment money can buy to look as much like a woman as possible — surely no-one would be so heartless as to exclude him?”
This is coming at the problem from the wrong angle. It’s not about the man who wants to be treated as a woman or his wants or needs: it’s about the truthfulness and trustworthiness of the sign on the door that says “women only”. Because the female users of that space need to be able to be sure that there will be no men there: not even men who look very like women. Especially not men who look very like women.
Think about that for a moment, this idea of a man who is “visually and for all practical purposes indistinguishable” from a woman. Lots of women have suffered male violence, and some of those are permanently traumatised to the point that if they are surprised by a man in a supposedly female-only space, they will be retraumatised. These women may need domestic violence shelters and rape crisis services at certain times, but they don’t engage with the world solely as rape or domestic violence survivors. They have ordinary lives, too. They use public toilets, hospitals, gyms; they visit pubs, galleries, cafés, museums, theatres. They don’t wear a special badge or uniform so that we can identify them and make sure we cater for their needs. We don’t know who they are.
Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”
Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.
Getting everyone’s markings onto one copy of the authorities bundle can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. Here’s how to do it smoothly.
Getting an authorities bundle agreed and finalised for the Court of Appeal can be a stressy pain.
Agreeing a list of authorities and compiling PDF and hard copies of the bundle isn’t too bad. A lot of the guidance in 10 easy steps to creating the perfect hearing bundle is relevant to the practicalities of things like shuffling the authorities into date order, producing an index and making sure the pagination and page labels line up. The bit that can be tiresome is getting everyone’s sidelining marking the passages on which they rely onto the same PDF copy of the bundle before it is printed and delivered to the court.
One way (perhaps the usual way) of doing this is to send the PDF authorities bundle round all the different parties in turn, for each of them to add their sidelining one by one. If the bundle is in several volumes, it’s likely to be quicker if the different volumes take different routes round the parties — so that, say, A can be marking up volume 1 while B is marking up volume 2 and C is marking up volume 3. And then everyone swaps round, and hopefully you end up with everyone’s markings on each volume.
I suppose in theory it could all go like clockwork. But if someone is slow, or the PDFs circulate for some reason in an unexpected order, or someone doesn’t read the instructions carefully enough and annotates the wrong volume at the wrong moment, it can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo.
If this description brings you out in a clammy sweat of remembered stress, I am your bundle fairy, and I am here to make your life better next time.
Start with a folder, in OneDrive or some other location you can easily share with the other parties. Call it “joint authorities bundle” or something of the kind. Save in it court-ready PDFs of all the authorities you rely on, each one named with its full citation, prefixed with its year (or year and month, if you have a cluster of authorities from a single year), eg “2015 BBC v Roden [2015] ICR 985.pdf”. (Prefixing the names with the year and including the full citation is to force sorting in date order, and to make it easy to extract a draft index from the file list: see further 10 easy steps.)
Add sidelining to the PDFs to mark the passages you rely on as you go along.
Share your folder with the other parties. Ask them to add any authorities they rely on that aren’t already on your list, named in the same way, and sidelined for the passages they rely on.
Once your collection is complete (and pruned as necessary) merge the reports, ready-sidelined, into a single PDF and add an index page.
Sort out page labels and pagination, and hyperlink the index to the first page of each report. Again, you can adapt the instructions from 10 easy steps for this: the principle’s the same. The individual authorities are now clutter, so move them out of your shared folder (though probably not to the bin, just in case of mishap).
Check whether you want to sideline any passages from the authorities contributed by the other parties, and do so if you want to.
Invite the other parties to do the same with yours, and each other’s. Unfortunately (anyway in OneDrive – I haven’t tried alternatives) you can’t actually all do this at the same time without using snazzy collaboration tools, but if everyone’s marked up their own authorities before putting them in the shared folder, there probably won’t be very much more to do at this stage. If it’s at all complicated, I’d suggest sharing a schedule of time slots, asking everyone to mark the window within which they plan to do any further sidelining, and then stick to those times.
Once everyone’s added any further sidelining, you’re done.
Speaking at a fringe meeting at the TUC this week, Jo Grady, the general secretary of the University and College Union (UCU) said (as reported in the Telegraph):
“whilst it’s clear that gender-critical beliefs are protected, the form of expression isn’t … You might have freedom of speech, but you don’t have freedom to offend … that’s one of the things that we try and educate our members about quite a lot.”
This betrays a misunderstanding of the law. The right to freedom of belief under article 9 of the ECHR explicitly protects the manifesting as well as holding of beliefs; and the right to freedom of expression includes the right to say things that are offensive, shocking, or heretical to current orthodoxies. Academics in particular are granted heightened protection in their expression, precisely because academic freedom necessitates the freedom to pursue truth, even when social and institutional pressure seeks to silence it.
The legal framework
Article 9 ECHR provides:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance.
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 ECHR provides:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The European Court of Human Rights has been explicit that the protection of these rights is foundational to democracy. For example, in Sahin v Turkey (2007) 44 EHRR 5, [104], the Court concluded that
“freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.”
A similar commitment can be found within domestic law. For example, in R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ noted that
“A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
This position was neatly summarised by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”
The importance of political speech — the ability to discuss public policy, law, governance, and rights — has been particularly emphasised as necessary for democracy. In R (Prolife Alliance) v BBC [2004] 1AC 185, Lord Nicholls stressed that
“Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts”
Similarly, the European court of Human Rights in Vajnai v Hungary [2008] ECHR 1910, has noted that there is “little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest.”
There is a wide latitude as to the manner in which such views are expressed. In De Haes and Gijsels v Belgium [1997] 25 EHRR 1, the Court observes that
“Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community… it must be remembered that Article 10 … protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”
As Jo Grady notes, Forsater v CGD Europe [2019] UKEAT 0105_20_1006 establishes that gender critical views are protected as philosophical beliefs for the purposes of the Equality Act. They engage both Article 9 and Article 10 ECHR and are considered to be worthy of respect within a democratic society. Because they engage these rights, their expression or manifestation is also protected, and this is so even where such expression is offensive. In R (Miller) v College of Policing [2020] EWHC 225 (Admin), Knowles J (at first instance) said:
“The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1) … in the Article 10 context, special protection is afforded to political speech and debate on questions of public interest.”
Comment
It is possible that the confusion arises from the fact that the right to hold a belief and the right to manifest it do not attract exactly the same protection. The former is absolute; the latter is qualified. This means that, as recently discussed by the EAT in Higgs v Farmor’s School & anor [2023] EAT 89, not every expression of a protected belief is protected.
Nevertheless, there is a strong presumption against interference with the manifestation of religious or philosophical belief. The onus is on those wishing to curtail the expression of protected beliefs to establish that it is necessary to achieve one of the aims specified at article 10(2), and that the means used are proportionate.
These questions are fact-sensitive, with few hard rules. One thing that is certain is that the law takes freedom of expression seriously, and in particular takes account of the chilling effect that any interference may have on the ability of others to exercise their rights; see R(Miller) v The College of Policing [2021] EWCA Civ 1926):
“The concept of a chilling effect in the context of freedom of expression is an extremely important one … when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”
The legal problem is where precisely to draw the line between protected speech, and speech so grossly offensive that interference can be justified. That line was not crossed by Harry Miller’s “opaque, profane, or unsophisticated” tweets; it is unlikely to be crossed by academics and scholars speaking about biological sex or its importance in political or social life. Academics and those who represent them can rely on a strong presumption that manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression.
Conclusion
Academic freedom in the UK (and many other parts of the world) is under threat from across the political spectrum. Instead of meeting that threat and defending academics, many institutions have been dismayingly ready to acquiesce in or even encourage the destruction of academic freedom. In particular, a union for academics should be knowledgeable about its members’ rights, and quick to defend them when they are attacked. The unflinching pursuit of truth is the beginning and end of academic integrity and the primary purpose of any institution seeking to represent scholars and their interests.
Within academia, only truth is sacred. Sometimes truth offends. So be it.
Dr Michael Foran is a Lecturer in Public Law at the University of Glasgow.
FreeBar describes itself as “a network of LGBT+ people and allies who work at and with the Bar”. It came into being in 2016, and remains small, with an annual income of less than £5,000. Its trustees are Alice Brighouse (Matrix Chambers), Caroline Harrison KC (2 Temple Gardens), Cameron Stocks (Gatehouse Chambers). Two treasurers, Conall Patton and Joyce Arnold (both of One Essex Court), manage its finances.
The FreeBar Charter
The organisation’s flagship initiative is its “Freebar Charter”, launched in November 2020. Barristers’ chambers are invited to sign up in order to signal to the world “that they are (or are working towards becoming) an LGBT+ inclusive organisation”.
In nearly 3 years, the Charter has attracted a total of 9 signatories. Only two of the organisation’s trustees have managed to persuade their own chambers to sign.
The Charter comprises 11 commitments. The first calls to mind Tom Lehrer’s Folksong Army:
“We are an LGBT+ inclusive and welcoming organisation. We welcome all people, regardless of sexual orientation or gender identity.”
Things go rapidly downhill after that. I won’t comment on all the pledges, but a few merit attention.
No. 2 reads:
“We always challenge LGBT+ phobic language or behaviour, whether from anyone in our organisation, or directed at anyone in our organisation from anyone dealing with our organisation.“
To the casual observer, this might also seem to be in “motherhood and apple pie” territory. But the devil’s in what’s meant by “LGBT+ phobic”. We don’t find a definition anywhere on the FreeBar website. I suspect the intention is to give the impression that if you want to know the precise limits of this particular mortal sin, you are already in terrible spiritual danger.
If the definition turns out (as such definitions often do) to include arguing that sex is real, binary, immutable and sometimes matters, this promises get barristers’ chambers into trouble with equality law; see Forstater v CGD, Higgs v Farmor’s School.
No. 4 reads:
We will ensure that by DATE our]/[Our] (delete as appropriate) internal policies and governing rules and procedures use only gender-neutral language, do not discriminate on LGBT+ grounds and are explicitly inclusive of those who identify as LGBT+.
A set of chambers which rewrote its maternity and parental leave policies to leave out feminine pronouns and words like “mother”, “maternity”, “breast-feeding” etc would create an unfortunate impression that it thought the erasure of women an acceptable price to pay for “trans inclusion”.
No 5 reads:
“We have a policy on transitioning at work applicable and available to everyone in the organisation.”
A note at the bottom of the page reads “Point 5: FreeBar can provide you with an example Transitioning at Work Policy if you would like it.” I requested sight of such a policy about a year ago. FreeBar is small, and some of the delay since then has been explained, and is for good reason. Nevertheless, by now I feel driven to the conclusion that those who have drafted the policies offered in this way are feeling some reluctance to have them publicly analysed. If, for example, they advise that anyone who asserts a cross-sex identity must be allowed to use single-sex facilities for the opposite sex, that will lead chambers into acting in breach of the Workplace (Health, Safety and Welfare) Regulations 1992.
No. 7 includes “we respect everyone’s choice of their own pronouns”.
Questions arise. Does this mean “we will reprimand and if necessary discipline anyone who declines to use others’ preferred pronouns”? Is this just cross-sex or plural pronouns on demand, or does it also apply to neo-pronouns? Does the rule apply to everyone, or just some people? If I were to declare my second person singular pronouns as “thou/thee” , would my colleagues be required to use those to address me – and do their best to conjugate verbs to match, too? Or does it only apply to preferred pronouns adopted in good faith, and would the assumption be made that I was trolling? But if the latter, how do you tell whether a man who says he’s a woman is in good faith or merely trolling? Does it depend on whether he bothers to cross-dress, wear make-up etc?
Whether and if so in what circumstances employers and workplaces are entitled to require the use of preferred pronouns is a contentious question on which there is as yet no clear guidance in the case law. Mackereth v DWP provides some indications in the context of employees’ interactions with service-users, but whether an employer or other workplace is entitled to compel the speech of colleagues among themselves, subordinating the article 9 and 10 rights of dissenters to claims to “politeness” of their trans-identifying colleagues, remains to be seen.
A note to point 8 suggests advertising vacancies on Stonewall’s “Proud Employers” platform. After last year’s judgment in Allison Bailey v Stonewall Equality Ltd, Garden Court Chambers et al, prudent chambers may feel some hesitation about making a public declaration of allegiance to Stonewall’s values in this way.
No. 10 ends:
We have/we would welcome the establishment of an LGBT+ network in our organisation.
That’s not a problem in itself, obviously. But have they thought it through? Do they realise that they are going to need to be equally welcoming to the establishment of a gender critical network, or risk unlawful discrimination on grounds of belief? Would it perhaps be better not to encourage members of a set of chambers to perform their political allegiances in the workplace at all?
Visibility page
FreeBar’s “Visibility” page profiles 44 individuals (mostly barristers but a few chambers staff and one High Court Master) from 26 different sets of chambers. It is striking that only 7 of those 26 sets are represented among the signatories to the Charter.
Barristers read the small print
The FreeBar initiative seems to have fallen very flat. This makes me feel proud of my profession. The exhortation in the title of this blog can be repurposed as an observation: in general, barristers read the small print.
Bad bundles have been a cause of pain and frustration for courts and advocates for many years; see e.g. Sedley’s Laws of Documents. But technology provides new and creative ways to turn a simple set of documents into an instrument of torture for all concerned. The bundle in Allison Bailey’s employment tribunal sounds to have been a masterpiece of the genre (with thanks to Tribunal Tweets) :
Ben Cooper QC (as he then was) in Allison Bailey v Garden Court Chambers and Stonewall
Bundling is an awkward task. It’s drudgery, so it’s tempting (and often unavoidable, for reasons of cost) to delegate it to someone very junior. But it’s tricky drudgery involving lots of little decisions that are hard to get right if you’re not an experienced litigator. No wonder it often goes badly wrong.
This is a blog about how to make the perfect hearing bundle, and how to make the process of making it relatively painless. (It’s not intended for lawyers involved in big-ticket commercial litigation: they will have fancy and eye-wateringly expensive document management software, and they are big enough and ugly enough to look after themselves.)
The key insight here is that preparation of the bundle begins months – possibly years – before the hearing.
It goes like this.
1. Create a folder on your computer. Call it “draft bundle”.
2. Every time you generate or receive a document that may ultimately need to end up in the bundle, do the following:
(i) save it as a PDF if that’s not the form in which you have it already;
(ii) check that it it is fully searchable, and if not, OCR it – you can do this in Adobe Pro from “Scan & OCR” on the Tools menu or in PDF Expert from the “Scan & OCR” tab at the top of the page;
(iii) give it a name (see step 3), and put it in your “draft bundle” folder.
(Try to get disclosure from the other side in the form of a file of separate documents, preferably in their native file formats. Metadata is part of a document, and disclosable as a matter of course – and may be interesting in its own right – so you’re entitled to this. Turn each document into a PDF before saving in your draft bundle folder, saving copies of the original documents elsewhere. If some of the disclosure arrives in the form of PDFs containing a number of documents, split them up into separate documents first. You can do this quite fast by inserting bookmarks in Adobe Acrobat, and then splitting the document by bookmarks. Use the file name convention at point 3 below for your bookmarks, and Adobe will use the same bookmark names to name the individual files.)
3. Give each document a name. If it’s a document whose date is or may be part of the “story” of your case, prefix its name with its date in reverse order. So if it’s an email from Angus Beattie to Cordelia Diamond sent on 14 April 2020, you might call it 2020.04.14 AB-CD. The point of this is to force Finder or File Explorer to sort your dated documents in date order. If there’s a section of the chronology where it may matter in what order things happened on the same day, you can put the time as well, to force sorting in order within a particular date: 2020.04.14.09.33 or 2020.04.14.09.33.
(I like very spare indexes, so if I’m in charge of the bundle, emails will have names as short as 2020.04.14 AB-CD. But you could make the names a little more informative by adding the subject-line, e.g. 2020.04.14 AB-CD FW: Re: Grievance meeting. But whatever you do, don’t attempt a description of the document that is anything other than its name or its subject-line – if you do, you’ll get into endless tussles with the other party about whether your names are tendentious.)
You may have a few documents that are part of the chronological story, but which are undated. In those cases, I’d suggest making a guess at the most likely date and saving with a filename that indicates your estimated date, and the fact that it’s a guess. So maybe something like “2021.01.04 EF -GH est. date”.
4. Email chains are a bit of a pain. Divide them up and reduce duplication as much as you reasonably can, and label each short chain with the date of the message at the top, but don’t stress unduly. Everyone’s used by now to reading email correspondence in a slightly back-and-forth way.
5. For other documents, choose some naming convention that works for you – it’s less critical. You might prefix the pleadings, tribunal orders etc that you’re going to want at the beginning of the bundle “000”, things like policy documents and procedures “POL”, anything you’re not yet sure to do with “Q”, and so on.
6. Carry on doing this through the life of the case – do it with the documents your client gives you, the pleadings, orders from the court or tribunal, everything you get from the other side on disclosure. You’ll need to be quite disciplined, but your future self will be grateful.
7. When your collection is complete and you’ve fiddled with file prefixes so that the documents are in the order you want, deleted duplicates, moved irrelevant documents out etc, merge all the files in Adobe Acrobat. You’ll find Acrobat has used your filenames as bookmarks. (I expect there are other programs that will do this, too, though so far as I have been able to discover, PDF Expert doesn’t. I prefer PDF Expert for most purposes, so I just switch between the two.)
8. Next, to make your index, you need a text list of the files in your draft bundle folder. In Finder, open your draft bundle folder, highlight the top file and then using the shift key highlight the bottom file – this should highlight all files in the folder in blue. Then press Command+C (or in Windows, ctrl+C) to copy them.
9. Launch a text editor – e.g. TextEdit on a Mac, or Notepad if you’re in Windows – and make sure that you have “plain text” chosen – in TextEdit, that’s in the “Format” menu. Paste the file list from your clipboard: on a Mac, command+V. (Or you can skip the step about choosing “plain text” if you know how to paste in plain text – shift+option+command+V on a Mac.)
10. Copy your file list into a Word document and edit to remove all the “.pdf” suffixes. You can do this easily with search and replace, replacing “.pdf” with a space. This is the guts of your index.
11. Format your index, save it as a PDF, and stick it onto the front of your merged bundle.
12. Open your merged bundle in your preferred PDF viewer and add page numbers. Ideally, number the index pages in lower case Roman numerals, and start pagination proper on the first page of documents.
If your preferred PDF viewer is PDF Expert, you choose “Add Page Numbers” here:
13. Add the page numbers to your index. I think this is the bit you’ll have to do manually – but it’s just a matter of skipping through your bundle bookmark by bookmark and writing in the page number for the start of each document, so it’s not too terrible even for a large bundle. And it’s easy and requires no decision-making, so you can safely give it to someone very junior so long as you trust them to take care to do it accurately. (If you have Bundledocs – and probably other programs like it – it will do this bit for you.)
14. Turn your index page into a PDF, and add it to the front of your bundle.
15. Tweak page labels on your PDF so that the electronic page numbers align with your pagination. (You can do this in Adobe Pro from the “Organise Pages” menu under “Tools”.)
16. Add hyperlinks from the index through to the first page of each document. (Again, I think Bundledocs will do this for you, if you have it.) This is fiddly but easy, too. In PDF Expert, it’s here:
17. That’s it. Congratulations, you have made a perfect bundle. It was actually 17 steps, but apparently for clickbait reasons 10 is a better number, so I lied. Sorry.
This method has the following advantages, over and above the perfection of the end result:
Front-loading the fiddly stuff. Putting together a bundle from scratch a few weeks before the hearing is time-critical anxiety nightmare. The fiddly stuff can’t be avoided entirely: giving every damn document in the bundle a backwards-date-format filename is undoubtedly fiddly. But it’s fiddling that can be done a bit at a time over a long period.
The final stages are pretty easy, so adjusting your bundle at a late stage isn’t very painful.
Your draft bundle folder will be a useful reference source as the case progresses.
You can annotate and highlight the documents in your draft bundle folder freely, because it’s easy to strip annotations from the bundle once compiled but before sharing with the other side.
This means you can share your draft bundle folder with counsel, and she can start marking it up. So if agreeing the bundle with the other side proves fraught, your barrister isn’t jumping up and down with impatience and hassling you while you’re trying to deal with that – instead she’s serenely marking up documents and preparing cross-examination notes, secure in the knowledge that all her markings will appear in the finalised version of the bundle when it reaches her.
Post-script
It has been objected that if the barrister has access to the draft bundle folder and starts marking it up, the solicitor can see her work in real-time. I’m not sure how real a problem that is (I suspect most solicitors will have better things to do than monitor counsel’s preparation in this way) – but I can see that it could give you an uneasy sense of being under detailed surveillance, at least potentially.
Fortunately, there’s an easy answer. Get your solicitor to share the draft bundle with you. When you get to the point where you’d otherwise be screaming for a finalised bundle to start work, make a private copy, and start marking that up. Get your solicitor to tell you when they’ve agreed the contents of the bundle and are about to compile it – and at that point, if you want to, you can copy all your marked-up documents back into the shared folder. Choose “replace”, and your marked-up copies will replace their unmarked twins – but the folder will still contain any documents that have been added since you made your copy.
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.
The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK.
Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation.
There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.
If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill.
At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above.
Clause 15A says:
“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”
This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective.
So this new clause does precisely nothing.
The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that.
That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it.
For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020.
A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act.
This problem can be solved in various ways, but clause 15A isn’t one of them. ______________________
Naomi Cunningham is a barrister specialising in discrimination law. She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee. She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.
