My body, my choice: privacy, consent and compulsion in personal care

Fortnum v Suffolk County Council is a first instance decision of an employment tribunal sitting in Bury St Edmunds that is often mentioned⁠1 in support of a claim that trans women already have a right to be treated in all respects as women, even where that impinges on the privacy and dignity of natal women. So far as I can discover, the decision has so far escaped the attention of legal commentators. That’s not surprising, because decisions of the employment tribunal have no weight as precedents, so commentators rarely bother analysing them.⁠2 This one is being treated in some quarters as if it were binding, though, so let’s take a look at it. 

What did the employment tribunal decide? 

Ms Fortnum was a trans woman employed by the Council as an assistant Day Care officer. Among her duties she was required to provide intimate personal care to male and female service users. One of those service users was a girl or woman (it’s not clear from the judgment whether she was an adult or not) with learning difficulties, referred to as DL. The judgment records that she had done so satisfactorily and effectively, and that “Neither DL nor her mother knew that the applicant was a transsexual female.” That is ambiguous, but presumably the tribunal meant that DL and her mother believed Ms Fortnum to be a natal woman. 

On 25 May 1999, about a month before she underwent gender reassignment surgery, Ms Fortnum was told that she was no longer to provide intimate personal care for DL, because DL’s mother had expressed a wish that only female members of staff should attend to her daughter’s intimate care.

Ms Fortnum was upset and offended, and sued the Council for discrimination, apparently limiting herself to a complaint of discrimination on grounds of gender reassignment.  The Council argued that there was a genuine occupational qualification for the job (a “GOQ”); and also that Ms Fortnum had not suffered any detriment in being directed not to provide intimate personal care for DL. 

The tribunal dealt with the latter point shortly: 

We find that submission too sanguine. The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman; she was treated differently.

So far as the defence of a GOQ was concerned, the tribunal appears to have thought that the direction to Ms Fortnum to stop providing intimate personal care for DL was direct discrimination on grounds of gender reassignment; and that that discrimination was not excused on the basis of a GOQ, because Ms Fortnum had previously been providing those services satisfactorily.

Did the employment tribunal get it right? 

I don’t think it did. From the point of view of employment law, there were three questions the tribunal needed to address: first,  was the Council’s decision made on the grounds of Ms Fortnum’s sex, or her gender reassignment?  Secondly, was the Council’s decision to her detriment? Thirdly, if so, could the Council make out a GOQ defence? But in the background to the employment law questions there were also issues – apparently wholly overlooked by the tribunal – about DL’s right to bodily autonomy, and the serious nature of any decision to override her choices about who should provide her intimate care.

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her gender reassignment, we ask how the Council would have treated someone the same as her in every respect, except that they weren’t going through gender reassignment; that is to say, a man.  

But once you identify that as the question, it’s obvious what the answer is: the hypothetical Mr Fortnum would have been stood down from those duties just the same as the real-world Ms Fortnum was. So the tribunal was wrong about this: there was no gender reassignment discrimination. The true reason the Council removed these duties from Ms Fortnum was that she was male:3 it was discrimination on grounds of sex. 

If the same facts occurred now, so that they were governed by the interplay of the Gender Recognition Act 2004 and the Equality Act 2010, the question whether the discrimination was on grounds of sex or gender reassignment would depend on whether the claimant had a gender recognition certificate or not. If not, then the discrimination would be sex discrimination for the reasons given, because she would still be legally male. If she did have a GRC, she would be deemed female for the purposes of the EqA, and the discrimination would be on grounds of gender reassignment.⁠4

Was there a detriment?

There is no finding in the judgment that Ms Fortnum’s hours or pay were reduced as a result of the decision to remove her from the particular duties in question: her complaint was founded solely on the affront and upset that she suffered because of that decision. The tribunal thought it was obvious that there was a detriment. 

This, to my mind, is at the heart of the case. The test for a detriment is stated by the Court of Appeal in Shamoon v Chief Constable of the RUC [2003] ICR 337: 

This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank pic v Kapur (No z) [1995] IRLR 87.

I think the tribunal was wrong on this question, too, and clearly so. Who provides intimate care is a matter of individual consent to actions that would, in the absence of consent, be criminal assaults. A woman is entitled to withhold consent for intimate care to be provided by male people, however they identify, and for the employer of carers to respect that. It is unreasonable for a man to be offended because a woman declines to receive intimate personal care from him, and it is equally unreasonable for a person with a male body who identifies as a woman to be offended for the same reason. Ms Fortnum’s affront seems to have arisen out of her employer’s refusal to instruct or permit her to commit a criminal assault on a disabled service-user. An “unjustified sense of grievance” seems a precisely apt description for what she felt. 

Was there a valid GOQ defence? 

If I am right about detriment, this doesn’t arise: there was no detriment, so no discrimination; so the Council didn’t need to prove a GOQ defence. 

But it doesn’t arise for another reason, too. It appears from the judgment that Ms Fortnum complained of gender reassignment discrimination only, and not sex discrimination. So even if I’m wrong about detriment, her claim should have been doomed to failure: she hadn’t suffered gender reassignment discrimination, which she did complain about; and she made no complaint of sex discrimination, which (assuming the detriment point in her favour) she had suffered.  

But for completeness, let’s suppose both that I’m wrong about detriment, and that Ms Fortnum had complained of sex discrimination, too. Would the Council’s GOQ defence have succeeded?  

On this point, I think the tribunal was right, but for the wrong reason. A GOQ defence was available under the SDA where the job needed to be held by a woman to preserve decency or privacy; but GOQs relate to the whole job, not specific tasks. If the whole job had been caring for DL, the job might have acquired a GOQ when DL, or her mother on her behalf, withdrew consent to have intimate care provided by someone who was biologically male. But given that Ms Fortnum could simply be reassigned to other duties, there could not be said to be a GOQ for her job. So if there had been a real detriment, and if Ms Fortnum had complained of the correct kind of discrimination, I don’t think a GOQ defence would have been available to the Council.

The fact – relied on by the tribunal – that Ms Fortnum had performed these particular tasks satisfactorily for some time had no bearing: consent to intimate care is not irrevocable once given. It was open to DL to withdraw her consent to having the services provided by someone who was biologically male, and she had done so.

Conclusion

Fortnum is a muddled and erroneous first instance decision that was (perhaps surprisingly) not appealed by the Council. It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.

Finally, a practical note. Cases like this are liable to cause women anxiety about the extent to which they are entitled to have their bodily privacy respected, so it is worth spelling this out. A woman is  entitled to insist on any intimate treatment or service – from bra fitting to catheterisation – being provided by another woman, and to decline care (etc.) offered by a trans woman. A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.⁠5 No means no. 

1 Sometimes under the name “DA v Suffolk County Council”; in any event, case number 2000 ET/1501602/99.

2 There doesn’t even seem to be an official transcript of the judgment in existence: I have been working from a transcript prepared by the claimant and her legal adviser, and published by Press for Change:  http://www.pfc.org.uk/caselaw/DA-v-Suffolk%20County%20Council.pdf

3 The Gender Recognition Act 2004 had not yet been passed, and at the time of the act complained of, Ms Fortnum had not undergone surgical transition, so there was no basis on which she could credibly have argued that as a matter of law she was female.

4 Against this, on parallel facts arising now, Chief Constable of the West Yorkshire Police v A [2005] AC 51 might be relied on for an argument that the trans woman should be treated by the law as female. My view in short is that that argument should fail. The claimant in West Yorkshire Police was a “post-operative transsexual,” and there is significant reliance placed in the House of Lords on how complete her physical transition had been. It is also relevant that West Yorkshire Police was decided before the Gender Recognition Act had come into force: there is now a statutory scheme in place that tells us whether, and for what purposes, a trans woman is to be treated as legally female.

5 Whether if the service provider refuses to provide an alternative, a woman would have a discrimination claim of her own is a question for another day; but what is beyond any possible doubt is that she is entitled to decline.

Does the law say that trans women are women?

There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is

Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?

The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all. 

The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.

The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have undergone “a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”  If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.

But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.

If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.

In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.

Sex, gender and fair competition in sport

When is it lawful to exclude trans women from women’s sport?  And will it ever be unlawful – or legally risky – not to? I argue that the answers are “usually,” and “yes,” respectively.

Most competitive sports are segregated by sex: as a rule, there will be a women’s event, and a men’s event. Sportswomen and men have to compete in the event specific to their sex, and will generally be refused admission to the opposite sex’s team or event. 

Not being allowed to take part in something you want to take part in because of your sex is sex discrimination, which the Equality Act 2010 prohibits in various contexts – including many of the contexts in which people do amateur or professional sport. So how come it’s lawful to have separate men’s and women’s events at all? 

The answer is in Part 14 of the Act, the Part headed “General Exceptions.” Section 195 is headed “Sport.” 

The main work of section 195 is done by its first two subsections, supported by a definition at s.195(3).  I’ll take the definition first. 

The definition: “gender-affected activity” 

Section 195(3) defines the expression “gender-affected activity.”  If 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, it’s a gender-affected activity.  

That will easy to apply in the vast majority of cases. The physical strength, stamina or physique of the average woman will put her at a disadvantage compared to the average man in almost all sports where muscular strength, speed, body size, reach etc. are significant. No doubt there are some borderline cases, and the odd exception; and it may even be that in some extreme endurance events women start to pull ahead[1]. But in general, if men and women compete in the same sports, relatively ordinary men will outperform even elite women. That’s why we have segregated sports: if we didn’t, in most events women would scarcely get a look in.  

Deciding whether average persons of one sex have an advantage over average persons of the other doesn’t require us to tangle with controversy about who exactly should be included when we calculate the qualities of “average persons of one sex.” Even if you include trans women in the total population of women from which you draw your average, that may shift the average a bit,[2] but it won’t make the male advantage disappear. So the great majority of sports will be gender-affected activities, and self-evidently so. (See Dr Emma Hilton’s paper here https://www.preprints.org/manuscript/202005.0226/v1 if you’re not with me on “self-evidently.”) Exceptions will be sports where the differences between competitors are all about skill, built on a base level of athleticism that either sex can attain. Equestrian events are the obvious example; and sure enough, they tend not to be segregated by sex.

Subsection (1): sex discrimination 

Subsection (1) takes participation in any gender-affected sport right out of scope for all relevant prohibitions of discrimination on grounds of the  protected characteristic of sex. Nothing anyone does to anyone on grounds of sex in relation to their participation as a competitor will be unlawful sex discrimination, provided only the sport is a gender-affected activity.

Subsection (2): gender reassignment discrimination  

Subsection (2) provides a more qualified defence to gender reassignment discrimination where the sport is a “gender-affected activity” and the discrimination is necessary to fair competition or safety. 

So to decide whether it’s lawful to exclude a person with a male body from a women’s sporting event, you need to work out whether the circumstances fall under subsection (1) or (2). That means you need to know whether excluding them would be discrimination on grounds of sex, or discrimination on grounds of gender reassignment.

Which kind of discrimination is it? 

I’m going to discuss three imaginary individuals, Chris, Viv and Hilary, all of whom would like to compete in a women’s rugby match, and all of whom are turned away by the body organising the match because they have male bodies. Chris is a man, and doesn’t identify as anything else. Viv is a trans woman without a GRC. Hilary is a trans woman with a GRC. 

Chris is excluded from the match because he’s a man: it’s a straightforward case of direct sex discrimination, but rugby is a gender-affected activity, so s.195(1) makes it lawful to exclude him from the women’s match. 

Viv doesn’t have a GRC, so although she self-identifies as female, so far as the EqA is concerned she’s of the male sex. A person of the opposite sex would have been allowed to compete, so this too is direct sex discrimination, and lawful by virtue of s.195(1). No ifs or buts,[3] and no need for justification in the individual case. 

Hilary, although biologically male, is legally female, so a person of the opposite sex – a man – would have been excluded from the match just the same. So Hilary hasn’t suffered sex discrimination. But she has suffered gender reassignment discrimination, because a comparator of the same (legal) sex but not having the protected characteristic of gender reassignment – that is, a woman who was a woman by biology rather than by a process of legal deeming – wouldn’t have been excluded. So Hilary’s exclusion is lawful under s.195 only if it is necessary in order to secure fair competition or the safety of other competitors.[4]

Bearing in mind that rugby is a contact sport which even among physically well-matched opponents frequently causes injury, it seems likely that including Hilary – unless she has an unusual physique for someone who has been through male puberty – will increase the risks to her biologically female opponents. The same goes for fairness: Hilary’s male puberty will have given her an advantage that no certificate or legal status can erase. This is likely to be true in almost any case where a trans woman with a GRC wishes to compete with women in a gender-affected activity: even where safety isn’t engaged, the fact that the sport is a gender-affected activity will normally be sufficient to indicate that fairness will be undermined if a biological male is allowed to compete. 

So although conditions for the operation of the exemption look different under subsections (1) and (2), the reality is that it will normally be lawful to exclude trans women from women’s events (anyway so long as those events amount to the provision of services within section 29) whether or not they have a GRC. 

Will it ever be unlawful not to exclude trans women from women’s sport? 

Section 195 provides exceptions to general rules in various contexts prohibiting discrimination on grounds of sex and gender reassignment. On their face, they are merely permissive: they say you may discriminate, but they don’t say that you must. So some sporting bodies may take the view that they’d rather not be sued for discrimination, even if they might have a good defence under s.195, so they might as well err on the side of safety by welcoming all comers on the basis of self-identification. 

But it’s not as simple as that. I can foresee two distinct ways in which sporting clubs or bodies may lay themselves open to claims if they permit male-bodied people to compete in women’s events, and there may be others I haven’t thought of.[5] The most obvious one is negligence: in contact sports (and potentially others, like cycling, where there is a risk of accidental contact), permitting trans women to compete may make the contest not merely unfair, but also more dangerous than it ought to be. 

But in many cases even where safety isn’t engaged, there is the possibility of indirect discrimination to contend with. Indirect sex discrimination occurs where a “provision, criterion or practice” puts women at a particular disadvantage compared to men. Opening participation in sex-segregated sports to trans men and trans women (whether on the basis of self-identification, or limited to those with a GRC) will put women at a striking disadvantage compared to men: men in general have nothing to fear from trans men competing in their sports, but if trans women are allowed to compete in women’s sports, natal women are bound to lose out on team places, prize money, sponsorship, medals, and  – perhaps most importantly – participation.

An indirect discrimination claim on this basis isn’t straightforward, because of the extraordinarily broad terms in which section 195(1) is expressed: read literally, it abolishes the whole of sex discrimination law at a stroke in relation to participation in gender-affected activities. That is a result so peculiar that one feels there must be a way around it[6] – but that’s a puzzle for another day. 


[1] In truth, this caveat is only there as an excuse  for a footnote about Jasmin Paris’s outright triumph, beating all previous male and female records, in the 2019 268-mile Montane Spine Race along the Pennine Way while breast-feeding.

[2] In fact, it undoubtedly will.

[3] I am confident that this analysis is correct, but it is fair to note that the contrary view does appear to be implicit in Alex Sharpe’s article ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (Sharpe (2020) 83 (3) MLR 539-557).

[4] There’s a weirdness in the drafting of s.195. Subsection (1) obliterates the whole of sex discrimination law so far as it relates to participation in gender-affected activities. Subsection (2), in contrast, just excludes four specific sections: s.29, which prohibits discrimination in relation to the provision of services; plus sections 33-35, which relate to the disposal and management of premises. The disparity of coverage isn’t mentioned in either the EHRC Code of Practice or the explanatory note to the Act, and I’m currently baffled by it: I find it difficult to to understand why, for example, the exemption shouldn’t extend to discrimination by associations or educational institutions. If anyone can explain that to me in a comment, I shall be grateful.

[5] Again – please comment if you can think of others.

[6] At the very least, in relation to professional sport, it can’t be compatible with the Equal Treatment Directive 2006/54/EC.