Author: Naomi Cunningham

After Forstater: elephants and elephant traps 

This is the text of a talk I gave on Wednesday evening to employment law solicitors at my Chambers.

I should start by acknowledging the elephant in the room. I broadly share the belief that lost Maya Forstater her work with CGD: namely that biological sex is real, important, immutable and not to be conflated with gender identity. We’re not going to be discussing the substance of that belief except tangentially, but inevitably there are various respects in which the position I take will affect the way I talk about my understanding of the law. 

As ever: views my own.

Staying with the elephant theme, the question I want to address is: “what are the main elephant traps for your clients in this area, and how do they avoid them?” I’m going to address that partly by reference to five cases that have been fought to a conclusion in the ET or on appeal over the last couple of years. So first, a quick outline of those cases. 

The five cases 

An employment tribunal held in December 2019 that Ms Forstater’s gender critical belief was not protected under s.10 of the EqA because it was “not worthy of respect in a democratic society” (or “WORIADS” as it’s come to be known). In June 2021, the EAT allowed Ms Forstater’s appeal, so that the case could be heard on its merits. In July this year, the ET held that CGD’s decision not to renew her contract had been because of her protected belief, and was therefore unlawful direct discrimination. 

In Mackereth, the EAT upheld a tribunal’s decision that the DWP’s treatment of a medical assessor who refused to use the preferred pronouns of service users was not discriminatory. 

In Bailey v Stonewall Equality Ltd & ors, the barrister Allison Bailey sued her chambers and Stonewall for belief discrimination. She won part of her claim against her chambers and lost other parts. She lost the claim against Stonewall, and is appealing that part of the tribunal’s judgment. 

The other two cases are V v Sheffield Teaching Hospital (which Anya Palmer has written about in more detail here) and Taylor v Jaguar Land Rover. In V, a tribunal upheld the claimant’s complaint that questioning him about his habits in relation to wearing underwear at work was discrimination on grounds of gender reassignment. He had been seen naked from the waist down in a women’s changing room. In Taylor, a tribunal found a number of complaints of harassment and direct discrimination proved by a trans-identifying male employee. 

Between them, these five cases shed quite a bit of light on the elephant traps I want to talk about. 

The elephant traps 

The “social media policy” fallacy – treating some beliefs as more equal than others

All beliefs that pass the 5 Grainger tests needed to qualify for protection are of equal status. Employers are entitled to ask their employees not to proselytise at work; and they will often be entitled to place some restrictions on their employees’ public statements outside the workplace. Exactly how far those restrictions can go will depend on a range of factors – the ease with which the employee can be identified as such, her seniority; the nature of her role, and so on. Judges and civil servants can be required to keep pretty silent, in public, on matters of political controversy; supermarket checkout staff not so much. 

There has been quite a lot of comment on Forstater to the effect that CGD’s difficulties could have avoided if only they had had a robust social media policy in place. 

There are two problems with that. The first is that Forsater’s engagement, though direct, was pretty measured.  That means that any social media policy sufficiently restrictive to silence her on the subject of GRA reform would have had to be draconian across the board. If it had singled out “gender critical” engagement for prohibition, that would have been discrimination just the same. You can’t make discrimination disappear by making it your policy to discriminate, and then saying you acted as you did not on the prohibited ground but in obedience to your policy. An employer could in theory decide on the draconian route, and just purport to put all political or contentious social media engagement out of bounds. But trying to enforce such a draconian policy would be likely to have a high cost in both management time and industrial relations. And an employer that dismissed for breach of such a rule might well find it hard to defend as consistent with the employee’s article 10 right to freedom of expression, which will be part of “all the circumstances” a tribunal has to consider when ruling on the fairness of a dismissal. 

On the other hand, if an employer writes a draconian policy but only enforces it reactively when staff members or third parties take strong exception to the expression of particular views – well, the problem with that should be obvious. Effectively you’d be letting the mob decide which opinions may be expressed. If the mob discriminates, you discriminate. 

A related elephant trap may be concealed in a more limited neutral-looking policy. Suppose your policy says something like this:  

You must not make any social media communication that could damage our business interests. 

It looks even-handed and fairly light-touch. But if what this formula really means is that employees mustn’t express unfashionable views because third parties might object, that won’t preserve the employer from a finding of discrimination. A more familiar parallel may help make this vivid: an airline can’t get away with saying,  “Well of course we know that women make perfectly good pilots, but we don’t employ women to fly planes because our passengers wouldn’t feel safe and would vote with their feet.”

So what should social media policies look like? I’d suggest that a sensible policy for most organisations will simply ask senior and middle-ranking employees to make it clear that the views they express are their own, and to express themselves lawfully and reasonably courteously in any event. There’s nothing conceptually difficult about that, though an organisation faced with a social media pile-on may be called upon to hold its nerve.

That takes me to my next elephant trap. 

Running scared 

This was illustrated by CGD’s conduct after Maya Forstater started to engage in the debate about the proposal to reform the GRA to bring in self-ID. 

It’s notable from the evidence quoted in the judgment that some managers were initially nonplussed: they weren’t sure what all the fuss was about. One even admitted at an early stage that he wasn’t sure whether or not he agreed with Forstater. But as the  campaign against her intensified, and they became aware of internal reactions to her tweeting described by one witness as “visceral”, they fell into line. 

Their problem seems to have been a disinclination on the part of managers to look behind claims to be offended by Ms Forstater’s tweets, and make up their own minds whether she had said anything genuinely unacceptable. The high-water mark of the evidence against her was that she had described a man known sometimes as Philip Bunce and sometimes as Pips Bunce as a part-time cross-dresser in the context of a discussion about whether he should have accepted an award for women in business. 

“Cross-dresser” is a term that can be found in many LGBTQ+ organisations’ glossaries, and Bunce is a man who sometimes but not always cross-dresses at work – so for my own part I find it difficult to see what was wrong with Forstater’s  description. But that’s not to say it was completely fanciful to think her phrase a bit rude: the tribunal itself was split on that question, EJ Glennie and Mr Miller taking the view that it was uncomplimentary and dismissive but not in all the circumstances inappropriate or objectionable; the third member, Ms Carpenter did think it objectionable although that didn’t affect Ms Carpenter’s view of the result in the case.  

Sensible managers would have given the complaints short shrift. Employees are not entitled to demand that their employers protect them from having to work with people they disagree with –  or even with people who are sometimes a bit rude about third parties on social media.

That leads to my next elephant trap. 

“Bring your whole self to work” 

It’s become fashionable for HR policies to talk about making everyone feel pyschologically safe and able to bring their whole selves to work.

This may be some of the worst advice ever given to employees. 

None of us should bring our whole selves to work.  It’s perfectly fine to be an enthusiastic amateur opera singer, ju-jitsu practitioner or free-climber on your own time – but if you sing opera, wrestle your manager or literally climb the walls at the staff meeting, it won’t go well. Mr Pay, the Claimant in Pay v Lancashire Probation Service was dismissed because of what he did on his own time. If he had brought his whole self to work, it wouldn’t have taken the full intellectual heft of the Court of Appeal to spot that dismissal was fair.

More seriously: this kind of messaging is calculated to lead employees to expect to be allowed to police their colleagues’ beliefs and opinions. That’s not going to work in a diverse society. Maya Forstater’s belief that the differences between male and female bodies sometimes matter seem to have been bitterly offensive to some of her colleagues – but no doubt the opposing belief that men can be lesbians, and women and girls are not entitled to any reliable privacy from men was bitterly offensive to her. You can play the same game with many irreconcilable beliefs. An ethical vegetarian may think I am little better than a murderer because I eat meat; a religious colleague may think I am destined for hell because I don’t believe in God, an environmentalist that I’m a vandal because I drive a car. 

That’s all ok – or it should be. These kinds of incompatibilities of belief may sometimes make friendship difficult, but they shouldn’t impede working together, provided everyone respects everyone else’s freedom of belief, conscience and speech. 

So the message for employers is: don’t write policies that give employees the impression that they can expect their colleagues to share their beliefs, or even pay lip-service to them. But do make sure that employees don’t proselytise or try to impose their own beliefs on others in the workplace. 

Of course, elephant traps are not just there for employers. The next one is for employees:

Being a martyr

Dr Mackereth was employed by the DWP to make medical assessments for the purposes of disability-related benefits. He was a Christian whose rejection of genderist beliefs had biblical roots. He made it clear in the course of his induction that he could not in conscience use pronouns for service-users other than those indicated by their sex. 

The DWP sought to explore with Dr Mackereth the parameters of his position, seemingly with a view to retaining his services if it could, but Dr Mackereth resigned – saying that he believed he was being dismissed – while that process was ongoing. The EAT confirmed that the tribunal had permissibly found that the DWP’s conduct had been a response not to his beliefs but to the way in which he had indicated he was determined to manifest them.  

Dr Mackereth seems to have jumped early on to the conclusion that he was bound to be dismissed, and to have been unwilling to engage constructively with the DWP’s attempts to find an accommodation. It’s not obvious that that was necessarily a lost cause: Dr Mackereth was willing to use clients’ preferred names, and in 1:1 meetings you might think it wouldn’t be too difficult to swerve the question of pronouns altogether. 

If you are advising an employee at an early stage of a dispute of this nature, I suggest there are four key lessons from Mackereth: 

1. Stay calm, and assume your employer is acting in good faith until the evidence to the contrary is overwhelming.

2. Don’t force matters to a head: be open to pragmatic work-arounds that respect others’ conscience and belief as well as your own. 

3. Decide on your own red lines and communicate them clearly; but – crucially – 

4. Don’t jump before you are pushed. If someone is going to decide that your beliefs can’t be accommodated in the workplace, leave it to your employer to make that decision. 

That takes me to my final elephant  trap:

Confusing the right not to suffer GR discrimination with a right to be treated as the opposite sex

The case that illustrates this is V v Sheffield Teaching Hospitals NHS Foundation Trust. It’s first instance ET decision, so it has no value as precedent  – and in any case it is in my view pretty obviously wrong. But it serves as a cautionary tale. 

V, a trans-identifying male, applied for a job as a catering assistant. He was given permission to use the women’s toilets and changing and showering facilities from the start of his employment, and his female colleagues were told that that was what he would be doing, and given bespoke training – before V started work – that seems to have been designed to ensure that they didn’t raise objections. The judgment of the ET is silent as to what if any medical treatment he had undertaken, but it is clear from how matters developed that he was obviously male. 

V resigned a little over a year after he started work, and made a number of complaints against the hospital, including complaints of gender reassignment discrimination. 

He made a number of complaints. The only one that succeeded  arose as follows. In June 2021, there was a report to a manager that V had been seen naked from the waist down in the women’s changing room. On a previous occasion he had remarked to a colleague that he was hot and sweaty and had taken his underwear off, making a wringing motion with his hands. A manager asked him in a meeting about whether he was in the habit of removing his underwear, and the tribunal found that that question was asked because of his gender reassignment, and was to his detriment. He therefore succeeded to that extent in his complaint of discrimination. All his other complaints were dismissed. 

My elephant trap is evident in the behaviour of both the hospital, and the tribunal. 

The tribunal approached his complaint of discrimination on the basis that if he had not been a transsexual, he would not have been asked whether he was in the habit of removing his underwear. The comparator used by the tribunal is what it calls a “cisgender woman” in a similar state of undress. 

If V had had a gender recognition certificate, there would be a respectable argument that a woman would be the correct comparator; though I think the better view is that even so, the correct comparator is a man who is not trans.  But there is no suggestion in the judgment that V had a GRC, and on the assumption that he didn’t, the tribunal certainly chose the wrong comparator. If you want to know whether V was asked the question because of his trans status,  you need to think how the employer would have treated a man who was not trans who was seen naked from the waist down in the women’s changing room. 

I think the same error underpins the hospital’s approach to V’s use of the women’s facilities. It seems to have assumed that to deny him the right to do so would have been discrimination on grounds of his gender reassignment, and unlawful. But it would have been neither. If he had been excluded – like any other man – that would not have been because he was trans, but because he was a man. It would not have been sex discrimination because there were equivalent facilities for men. And it could not have been unlawful indirect discrimination on grounds of gender reassignment because it was obviously justified in the interests of protecting the privacy and dignity of his female colleagues, and complying with the obligation under the Workplace (Health Safety and Welfare) Regulations 1992 to provide separate male and female facilities. 

It’s my view that this is the legally correct answer to the toilet conundrum: the women’s facilities in a workplace are for the use of women only, and trans-identifying males should be permitted to use either the gents’ or a single-occupancy unisex toilet. And that rule should be applied irrespective of whether a trans-identifying male has a GRC or what if any medical treatment or surgery he may have had: his female colleagues are entitled to have their privacy respected. 

But my view isn’t without its vulnerabilities.  In Croft v Royal Mail, the Court of Appeal ruled that a pre-operative transsexual had lawfully been refused use of the women’s toilets, but also suggested that at some stage of his transition he would have to be treated as a woman. Unfortunately the judgment doesn’t then offer employers the slightest assistance in identifying when that stage is reached. That was in 2003. By 2018, an ET in Birmingham felt able to treat it as self-evident that refusing a trans-identifying man use of the ladies’ was unlawful discrimination even in circumstances where – as is spelled out in the judgment – he had had no surgery and had no intention of undergoing any in the future. That case, Taylor v Jaguar, was a first instance judgment, and in my view clearly wrong in this respect – but it was not appealed. 

So what is the right advice for an employer faced with the toilets conundrum? How does it minimise the risks of being sued? 

The only truly safe option is the kind of facilities that we have here in Chambers: single-occupancy toilets which may be badged as male and female, but for which there’s really not much problem if someone uses the toilets for the opposite sex – anyway provided they aim straight, and raise the seat if appropriate. But suppose what you have is separate halls of cubicles separated by flimsy partitions; and one or two single-occupancy accessible toilets? Suppose that for reasons of cost or space or both you can’t remodel them. If you let a trans-identifying male use the ladies’, your female staff may sue you. If you offer him the use of the accessible toilets instead, he may sue. 

I have nothing very comforting to say here. There’s no binding case law. The remarks in Croft are both Delphic and obiter. And whatever you do, someone’s going to be furious with you. 

I think the best I can offer employers faced with a toilets or changing rooms problem is to suggest that should do what they think is right. That sounds trite, but if you’re likely to end up in court whatever you do, you might as well at least take a decision that feel able to defend wholeheartedly.

If an employer is struggling to form an intuition about what doing the right thing looks like, a good start might be to start not by telling its female staff how they ought to feel about sharing intimate spaces with a trans-identifying male, but asking them how they do feel. Given the climate of fear that’s been generated about admitting you don’t think men can literally become women, it’s probably a good idea to do that anonymously.  

Notes, questions and some links.

I am grateful to Andrew Allen KC, who shared this event with me and provided a very helpful summary of the legislative background and the case law. This blog only reflects what I said.

There were questions about pronouns in email signatures, and “misgendering”. For more on those subjects, see

Is “misgendering” always harassment?

More on “misgendering”

Yet more on misgendering

Grammar and grievance

I was asked about my view on taking HR advice from organisations like Stonewall; on that, see generally Submission and Compliance.

And finally, I was asked an interestingly difficult question by Melanie Field of the EHRC about the meaning of “sex” in the Equality Act. I hope to do justice to that in a future blog.

Post-script: that “future blog” is now here.

Grammar and grievance

A tweet from Legal Feminist disagreeing with Acas advice on pronouns provoked a storm…

[image: taken from the illustrations to the Screwtape Letters]

In civilised life domestic hatred usually expresses itself by saying things which would appear quite harmless on paper (the words are not offensive) but in such a voice, or at such a moment, that they are not far short of a blow in the face…  You know the kind of thing: “I simply ask her what time dinner will be and she flies into a temper.” Once this habit is well established you have the delightful situation of a human saying things with the express purpose of offending and yet having a grievance when offence is taken.

CS Lewis, The Screwtape Letters (in which an experienced Devil coaches his nephew in the art and science of temptation)

The other day, Acas tweeted out the suggestion that putting pronouns in email signatures could help create a more open and inclusive workplace. Legal Feminist disagreed: 

There followed a storm of engagement, unprecedented for the Legal Feminst account: over 600k impressions, over 500 quote tweets and nearly as many retweets. I think the quote tweets in particular are revealing, and they are the main subject of this blog.

But before I get to that, I want to explain the context a bit; this will be old hat for many of my readers. 

The gender war: a quick primer

There are two sides in this war. They call each other various names, but we can call them sex deniers and gender criticals.

Sex denialism claims that sex doesn’t matter. Whether you’re a man or a woman depends not on your body, but on your inner sense of identity. A male person who says that he is a woman should be treated, referred to – and even thought of – as a woman for all purposes; and vice versa. Various things follow. If a man wants to join a support group for female survivors of male sexual violence, then provided only he says he’s a woman, he must be welcomed in. If a man with fully intact male genitalia wants to undress in the women’s changing area at the swimming pool, anyone who objects is a pearl-clutching prude and a bigot. If a mediocre male athlete wants to compete in women’s events and start breaking records and winning medals, the women should move over. If a male doctor wants to identify as a woman, his true sex is none of his patients’ business – even where intimate examinations are concerned. If a rapist decides he’s a woman and wants to be moved to a women’s prison, that’s his right too.  

Gender criticals think biological sex does sometimes matter: for healthcare, for safeguarding, for everyday privacy and dignity, for fairness in sport, and so on. They think sex is determined by whether you have a male or a female body, and that it’s no more possible literally to change sex than to change species. 

The attentive reader will have noticed that the “gender critical” viewpoint is made up of commonsense propositions that until about ten minutes ago no sensible person – whether on the political left or right – would have dreamed of contesting. The sex denialist beliefs are novel, and surprising.

Pronouns

So where do pronouns come in? 

This takes us to the manner in which sex denialism has been promoted. You can’t defend irrational beliefs with reason. By and large sex deniers don’t try: instead, their strategy has been to attempt to leapfrog over the usual campaigning, lobbying, arguing, persuading phases of bringing about profound cultural and legal  change, and to pretend instead that the desired outcome is already accepted by all right-thinking people – and to silence dissent by visiting dire consequences on anyone who questions that claim. That, I believe, is the whole reason for the vitriol and toxicity that surrounds this subject. Anyone who points out the absurdity of propositions like “some women have penises” must be howled down as a bigot, shamed, no-platformed, hounded from her job, kicked off her course, etc. That way, any doubter who lacks an appetite for martyrdom will be persuaded to steer clear of the whole debate – and insist if pressed that this subject is all too complicated and toxic, and they simply haven’t found the time or head-space to form a view. 

The more insidious part of the strategy is the first part: the pretence that the contentious  propositions that form sex denialism are already accepted without question by all educated, right-thinking people. Sex deniers make determined efforts to weave their claims seamlessly into our language and the fabric of our workplace culture, with the aim of converting contentious claims into the kind of tacit knowledge that doesn’t even need to be stated or formulated. 

Acas’s advice 

So what does Acas mean when it says announcing your pronouns can help create a more “open and inclusive” workplace? Inclusive for whom, and how? Your colleagues and work contacts will mostly know whether you’re male or female, if they need to. If you have an androgynous name and you particularly want to announce your sex, adding a title after your name will clear up any ambiguity with much less accompanying baggage than pronouns. But why do we even need to do this? Those who reply to my emails don’t need to know whether I am female or male. The truth behind pronouns is that their “baggage” is the point. The mechanism by which pronouns are supposed to make the workplace more open and inclusive is that they demonstrate your support of sex denialism, but without requiring you to say anything explicit. They bolster and entrench the idea that gender identity is more important than sex, while maintaining the appearance of a trivial, harmless courtesy. 

That’s why I think our tweet was right. The claims of sex denialism are far from universal: on the contrary, they are bitterly contentious. By putting pronouns in your signature you raise a flag that aligns you publicly with one side – and against the other – of the gender war. If you’re a Catholic pupil at a school in Glasgow where “No Pope!” is the standard greeting (I am not making this up – I have it on reliable authority that it’s an example drawn straight from life), you’re put to an invidious choice: either play along – or out yourself as a Catholic or Catholic-sympathiser. No doubt the greeting makes the environment feel welcoming and inclusive for the children of Rangers supporters; less so for young Celtic fans. 

Given the bitterness of the dispute – and especially given the many occasions on which gender critical individuals have had their jobs,  their livelihoods or even their physical safety threatened – being put to the parallel choice by pronoun rituals is not going to make the workplace feel open and inclusive for gender-critical employees.

An accidental behavioural experiment 

Are you feeling sceptical? Thinking maybe I’m overreacting, over-interpreting a harmless bit of politeness? I sympathise. When I first came to these debates, that’s what I thought, too. Why’s everyone getting so het up about language? Can’t we just be polite – can’t we use the words preferred by people who care passionately about words, and focus on what matters? 

If that’s where you are – re-read the short  extract from The Screwtape Letters at the top of this blog, and consider the manner in which the original tweet has operated as an accidental behavioural experiment. 

On the face of it, it’s quite a dryly techie tweet from a legal account, disagreeing with a bit of HR advice from Acas. But it’s had an extraordinary level of engagement: at the time of writing, nearly 700k impressions, hundreds of retweets and quote tweets, and nearly 3,000 likes.  

So what’s going on? Why has it attracted so much attention? 

I think the clue is in the quote tweets. They’re almost all hostile, and Twitter is a rage engine. Most fall into one of two categories: either words to the effect “What’s your problem with this trivial courtesy? Get a life!” or else “Ha ha nasty TERF bigots deserve to feel excluded and fearful.” I’ve done a rough-and-ready analysis, sorting about the hundred or so of these quote tweets into categories. I counted 66 that fell into the “ha ha nasty terven” category, 26 into the “harmless courtesy” camp –  plus two that agreed with the original tweet and a few I couldn’t easily classify. 

The typical HR response to any push-back against pronoun rituals is of the “harmless courtesy” flavour. Why, they ask, are you making such a big deal of this little thing? Why can’t you just be kind and polite like everyone else? Or at least not make an ungracious fuss if your colleagues want to be kind and polite! If you argue that pronoun rituals are an attempt to make a particular highly contentious belief system seem so mainstream that it can be treated as the default – and shame anyone who doesn’t subscribe to it – you’ll be met with polite bafflement. “What makes you think it’s that? It’s just a trivial courtesy that will make a marginalised group feel a little bit more comfortable. How much can it possibly cost you?”

This type of response was well represented in the sample I looked at. Here’s a typical one:

This is a perfectly understandable take from decent, well-intentioned people who haven’t given the matter a great deal of thought. But it’s hard to sustain in the teeth of the evidence provided by the other, much larger category of quote tweet. There are more than twice as many of these as from team “harmless courtesy”, and they make my case for me vividly – sometimes in unmistakably menacing terms. Here’s a small sample of that type: 

This was a reply, not a quote tweet

The first of these is admirably clear: “MAKE THE BIGOTS STFU [for the pure in heart, that translates “shut the fuck up”]. THAT’S THE BLOODY POINT.” 

This is the heart of the matter. A handful of responses of this type might have been explained away as the bad behaviour of a few hotheads. But the numbers involved make that impossible to sustain. 

A clear majority of the hundreds who have engaged with this tweet by quote-tweeting it are saying in terms that the point of including pronouns in email signatures is to make “TERFs” feel excluded and fearful. 

The quote tweets have vividly dramatised both aspects of the technique recommended by Uncle Screwtape in the extract at the start of this blog: one group (Zoë Irene et al) boasting that they are indeed saying something with the express purpose of giving offence – while the other group takes on the role of maintaining a sense of grievance when offence is taken. 

Expressing loathing and contempt for those who hold gender-critical views may be fashionable; it even seemed to have a degree of judicial sanction until the first instance decision in Forstater was corrected on appeal. But the lesson from the judgment of the Employment Appeal Tribunal in Forstater needs to sink in. Gender-critical beliefs are within the protected characteristic of “religion or belief” (so too, probably, is sex denialism); harassing or discriminating against your employees on grounds of their protected beliefs can prove expensive. One of the things to be taken into account by a court or tribunal in determining for the purposes of a claim under the Equality Act whether conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them is whether it’s reasonable for it to have that effect. The fate of this tweet could itself provide telling evidence. 

Admission to women-only spaces, and “case by case” assessment

The current EHRC Code of Practice on ‘Services, public functions and associations’ says that whether or not any given trans-identifying man should be admitted to a women-only space is something that should be decided on a “case-by-case” basis, and it has been argued in court that this is what the law requires. It sounds quite reasonable, in the abstract: people should make nuanced decisions tailored to the individual circumstances, rather than blindly following blanket rules. What’s not to like about that?

The Equality Act 2010 isn’t as clear as it might be on this question – and as a result, the forthcoming EHRC guidance is eagerly anticipated. While we wait for that, I want to walk through how “case by case” might work in practice. I’ll take one everyday example, a gym. 

I want to think about Louise. Louise is a 25-year-old gym employee, sometimes running fitness classes and sometimes doing a stint on reception. She has an industry-recognised Level 3 qualification in Personal Training. She’s a keen competitive windsurfer, and she plays for a local women’s rugby team. 

One day Jill, a trans-identifying male arrives at the gym to take out membership. Jill is wearing make-up and women’s clothes, but has a deep voice and a hint of stubble, and is obviously male. After completing membership formalities, Jill says “You may be able to tell I’m trans. I assume there’s no objection if I use the women’s changing room?” The women’s changing room has a main space with pegs along the walls, communal showers, and a wall of lockers; and a few curtained cubicles for women who want more privacy. Most users change in the main space. 

What’s Louise to do? What are the criteria on which she should decide whether Jill should be allowed to use the women’s changing room? Should she ask whether Jill has a GRC? Or what treatment Jill has had – hormone treatment, or surgery? Or should she treat that as intensely personal information that she can’t possibly ask about? But if so – how else is she to decide? Is she supposed to make an assessment of how successfully Jill “passes” as a woman? Or perhaps how much effort Jill has made to “pass”? Is she supposed to try to guess how likely it is that other users of the changing room will realise that Jill is male? Is her decision just about Jill, or should she also take into account considerations about the demographics of the gym’s membership – how many of the gym’s female users are middle-aged, or members of religious faiths in which modesty is particularly important? Is she supposed to be able to make this assessment on the fly, or should she ask Jill to come back another day after she’s had a chance to consider all the relevant circumstances and ask for any evidence and conduct any follow-up investigations she thinks necessary? And once Louise has made her assessment, are all the other receptionists supposed to abide by it – or do they have to do their own assessment each time Jill visits the gym? Is the “case” in question Jill, or this particular visit by Jill on this particular occasion?

Suppose Louise agrees that it’s ok for Jill to use the women’s changing room. Suppose Richard, who’s been a member of the gym for some years, overhears the exchange and says “Oh! I didn’t know that was allowed. I’m a woman too, actually, so I assume it’s also ok for me to use the women’s changing room?” Richard is dressed – as usual – in male business attire; he pops into the gym in his lunch-hour from the bank over the road where he works. 

Now what? If Louise says yes to Jill but no to Richard, why’s that? Is it because she knows Richard, and has always known him as a man? Is it because Richard is dressed as a man, and is making no effort at all to “pass” as a woman? Should her decision be different if Richard confides in her that he has already transitioned in his home life, and his real name is Madeleine, but he’s still trying to get up his nerve to transition at work; but because he is really a woman – even though presenting as male for work purposes – he should be allowed to use the women’s facilities? Or suppose Richard says he’s genderfluid, and sometimes comes to work in “girl mode” – and asks if it’s ok for him to use the women’s changing rooms on those days? 

It’s obvious – surely – that it’s not fair to put Louise in this position. She can’t be expected to make a “case by case” assessment. That conclusion doesn’t depend on any particular assumptions about her level of education: it’s  no different if she’s working part-time in the gym while she completes her PhD in gender studies. 

So now suppose you’re the gym owner – or if the gym’s part of a big chain, the chain’s general counsel. Louise is still at the sharp end of this: you’ve got to decide how to help her out. What policy are you going to tell her to follow? Are you going to take the decision out of her hands and give it to someone more senior? You could ask trans customers to fill in a form explaining their particular circumstances, and making a case for why they should be allowed to use the facilities provided for the opposite sex. You could ask them to provide evidence; maybe a copy of their GRC; a GP report; testimonials from friends or relatives. And then a manager could make the “case by case” decision on the basis of that information. 

Good luck with that. Your trans customers will complain – with some justice – that the process is slow, humiliating and intrusive. They may object to being asked to produce documentation that other customers don’t have to produce – they may say you have no right even to ask whether they have a GRC. You don’t ask your other customers to fill in a lot of paperwork to explain why they should be allowed to use the facilities they want to use. 

It’s not going to work, is it? Once you go to the trouble of imagining the practicalities on the ground of a “case by case” approach, you can see what an impossible thicket of difficulty it presents.

You can run a parallel thought experiment with any other single-sex space you care to think of: the practicalities of attempting a “case by case” assessment don’t get any easier. In some cases they get harder.  If it’s admission to a women’s refuge in the middle of the night, then necessarily the decision is urgent and has to be made in a hurry – and the consequences for other traumatised users of the service are more serious if you get it wrong. In a gym, some of your female users may simply self-exclude if you let males use the female changing rooms. That’s bad enough – a service they value and that is good for them is effectively put out of their reach. But female inmates in prison don’t have the luxury of being able to vote with their feet: if your case by case assessment admits a trans-identifying male, you may be exposing them to chronic fear for the duration of their sentence. If it’s the ladies’ toilets at the nightclub, there isn’t even any plausible moment in the “customer journey” at which a case by case assessment might be made. 

Fortunately, there’s a simple solution. What you need at your gym is women’s facilities, for women only, with no exceptions; men’s facilities, for men only, with no exceptions; and a sufficient number of single-user changing rooms for anyone who for whatever reason – and no-one need inquire what that reason is – isn’t comfortable using the facilities provided for their sex. That way no-one is excluded, no-one is asked intrusive questions – but also, no naked or half-dressed woman will be surprised by the unwelcome presence of a man. Everyone can get changed in peace. 

Note: not all the LFs are comfortable with the use of male pronouns for even a hypothetical a trans-identifying male. But they haven’t censored this blog, because we don’t all agree on everything, and we value dissent.

Conversion therapy: the path to good law

This is the text of my talk at the Middle Temple LGBTQ+ Forum Inaugural Annual Dinner last night (unchanged apart from the addition of some links).

How do we arrive at good law making a new criminal offence? Robin says good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need:  

  • evidence of harm 
  • a convincing case that the harm is amenable to legislation
  • clear proposals 
  • open public debate 

Starting with the last: debate. 

The proposed ban is one aspect of what we can call the “gender wars” where there has been a strong pressure for “no debate”. Those who have tried have been  shouted down, no-platformed, compared to Nazis, and hounded out of their jobs. 

Debate informed by evidence is how we test ideas and proposals: if they’re any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. This idea underpins our whole profession. 

So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you Nancy – we need to have this conversation.

Evidence of harm 

The evidence-base for this proposal is thin. 

The government has made the proposal for law without waiting for Dr Hillary Cass to complete her independent review of gender identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University. 

The Coventry review admits that for the UK, it only found 2 studies relating to gay conversion therapy, and none on gender identity. 

The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it.  

But if you look at that survey itself, you find this killer line: 

We did not provide a definition of conversion therapy in the survey 

That means:  

  • We don’t know how many of those 2%  were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
  • We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers. 
  • We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans. 
  • We don’t even know the sex of the respondents, because the survey didn’t ask. 

We don’t have a clue what these responses mean: they’re not evidence of anything. 

The consultation admits that there’s no real evidence of harm. It says: 

While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.

In other words, the government is saying – we just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.

Case for legislation 

Even if there were evidence of harm, not every harm can be put right with legislation; sometimes the cure is worse than the disease. You’d hope a proposal for legislation would address cost and benefit. 

But this consultation doesn’t get to that point. Having failed entirely to identify a credibly-evidenced or even defined kind of harm that is its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try. 

Last element – clear proposal

The government’s core proposal  focuses on children and vulnerable adults, and criminalises a talking therapy delivered 

 with the intention of changing their sexual orientation or changing them to or from being transgender

This muddles two different things. 

Being gay or bisexual isn’t a medical condition. It doesn’t require treatment. We can all agree that practices that try to change people’s sexual orientation are wrong and futile. 

Gender dysphoria sufficiently severe to make you seek radical alterations to your healthy body undoubtedly is a medical condition. There are two clues. The word: dysphoria – profound unease or dissatisfaction. And the demand for medical treatment. 

Let’s run a thought experiment. Say you’re a therapist. You see an unhappy 10-year-old girl. She wears baggy clothes, and has short hair. She says she’s sure she’s a boy really. She hates her developing breasts, and dreads the onset of periods. She despises all things “girly.” 

Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you do that duty carefully and conscientiously. 

The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning, she’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.

Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility, and other complications. 

This is the most savage conversion therapy ever invented.

It’s homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Many of us here grew up in a profoundly homophobic society. Clause 28 was passed in 1988, when I was 22 and my elder brother was 23. My brother was gay. He killed himself on 13 January 1989. I believe that he died, in part, from the toxic effects of homophobia. Those problems of homophobic bullying haven’t gone away. There is  still work to be done, and this is Stonewall’s proper mission.

Conclusion: the Denton’s playbook 

In 2019, law firm Dentons and others published a guide to campaigning strategy for gender self ID. The report says:

In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.

Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20

That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection whose real purpose is to criminalise what should be routine  responsible therapeutic work. 

This is fundamentally dishonest. It is certainly not the path to good law. 

Not cancelled

There’s quite a bit of public noise about the opprobrium, silencing, no-platforming, and even threats to livelihoods that some gender-critical feminists have suffered over the last couple of years. 

Those stories are true, and I don’t mean to minimise them in this short blog: it happens, and when it does it is disgraceful and shocking – and sometimes seriously harmful for the victims. But I worry that those cases are having a greater chilling effect than the true risks merit. The bullies only have to make a few high-profile examples for many other people who might otherwise speak up to be frightened into silence. 

So this, for a change, is a positive story of speaking up without adverse effects. 

I have written widely on the law relating to sex, gender and gender identity. Most of my writing has appeared on this blog, but I’ve also been published in the Employment Lawyers Association Briefing, the Discrimination Law Association Briefing and the Scottish Law Times. My blogs here regularly get viewing figures in the thousands – over 16,000 in the case of Submission and Compliance, my long read from February about Stonewall’s excessive influence. Some of my writing has been controversial even among members of the Legal Feminist collective: for instance, when I wrote (here) about Mridul Wadhwa’s appointment as CEO of Edinburgh Rape Crisis Centre, I used masculine pronouns, because it seemed to me important to write in a manner firmly grounded in reality. These days, for the same reason, I don’t use the expressions “trans woman” or “transwoman”, but “trans-identifying male” or “trans-identifying man”: again, I feel increasingly strongly that it is necessary to use words that reflect reality. Those choices are not universally endorsed by my Legal Feminist friends and colleagues, and some have said that they would feel unable to retweet in their own names material of that nature. (Despite disagreeing on this, we have stayed friends. Amazing, isn’t it?) 

But gender extremists would go much further, and characterise some of my writing as hateful. And I am aware of many colleagues in the legal profession who broadly agree with what I write, but feel too fearful to speak up themselves. Given the demonisation of views such as mine and the resulting climate of fear, I think it’s worth telling the story that is no story. 

The story

I have suffered no serious adverse consequences from my gender-critical writing.

The End.

That’s it. Sorry – it’s rather a boring story, but it’s true. Actually, I can add this. Not merely have I suffered no serious adverse consequences: I have reaped very considerable benefits, chief among which is the addition of the rest of the Legal Feminists to my professional network.

I’m careful, of course. I make sure that everything I write is grounded in solidly evidenced fact, or what is – at least in my genuine view – a correct interpretation of the law. I don’t get into angry Twitter spats; indeed, I don’t have a personal Twitter account at all, which means that if I am tempted get angry on Twitter (and the site is a rage engine), I have the sane calm voices of the Legal Feminists to hold me back from tweeting anything from the joint Twitter account that could harm our collective reputation. 

I’m lucky. I’m reasonably senior and established, not a precarious beginner. I’m self-employed, so I don’t have an employer breathing down my neck. The world (or at least the part of the world that matters for these purposes, which is our professional clients – solicitors) understands that barristers are individuals whose views are not to be ascribed either to their Chambers or to their clients; and indeed that a set of Chambers isn’t really the kind of thing that has a view “of its own” on these sorts of subjects anyway. So there would be no legitimacy for my Chambers to try to silence me – and to its credit, although of course there has been some grumbling, it has made no serious attempt to do so.

In addition, because I am a lawyer, my professional regulator is full of lawyers, too. That’s comforting, because it means that I have good grounds for trusting it not to be tempted to discriminate against me on grounds of my gender-critical views, or to mistake belief in material reality for hate. So although complaints to my professional regulator have been threatened, the prospect doesn’t alarm me. 

Be a little bit braver today. 

Schrödinger’s PCP

https://commons.wikimedia.org/wiki/File:Kitten_and_partial_reflection_in_mirror.jpg

In AEA v EHRC [2021] EWHC 1623 (Admin), Henshaw J refused the claimant permission to seek judicial review of the EHRC Code of Practice on Services, public functions and associations. AEA had challenged various aspects of the CoP, but in particular a paragraph that asserted that service providers offering single-sex or separate-sex services should treat transsexual people according to the gender role in which they present (I’m just going to write “single-sex” in what follows, but ​everything applies equally to separate-sex services). AEA argued that that misstated the law: any lawful single-sex service is entitled to exclude everyone who is not of the sex in question, irrespective of what other protected characteristics they might have. 

 A decision refusing permission for judicial review has no status as precedent, so the judgment is not binding on any other court or tribunal. But it has attracted some attention nevertheless, partly because of the heightened feelings on both sides of the “gender war,” and partly  because of the trenchant terms in which it is expressed. The judge repeatedly dismisses AEA’s arguments as “clearly wrong”, “clearly incompatible with the tenor of the Act,” and even “an obvious absurdity.” 

That makes me think it’s worth taking a look at some of the detail of Henshaw J’s reasoning. First, a very short introduction to the Equality Act 2010 and how it works. 

The Equality Act 2010

The Equality Act prohibits various kinds of discrimination on grounds of specified “protected characteristics” – age, sex, race, etc. – in a number of specified contexts. The Act is structured as follows. First (after some preliminary material that doesn’t matter for my purposes), it defines the protected characteristics. There are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

Next, the Act defines various different kinds of discrimination: direct, indirect, harassment, failure to make reasonable adjustments for person with a disability, etc. The two that matter for present purposes are direct and indirect discrimination. Direct discrimination is treating someone less favourably than others because of a protected characteristic. Indirect discrimination is the application of a provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared with others, and cannot be shown to be a proportionate means of achieving a legitimate aim. 

Note that, thus far, the Act hasn’t prohibited or required anything: these initial parts of the Act simply set up the definitions that are going to be relied on in the later sections that actually tell you what you are and are not allowed to do. 

The real work of the Act is done in parts 3 to 7, which prohibit discrimination in various different contexts: services and public functions, premises, work, education and associations. These prohibitions are modified by various exceptions and qualifications, some to be found in the Act itself, and some one or other of its Schedules. 

Part 3 of the Act prohibits discrimination in the provision of services and public functions, and schedule 3 provides for exceptions to those prohibitions. 

The argument 

Among the schedule 3 exceptions, there are rules intended to make it possible to run single-sex services if certain conditions are met. AEA had argued that if it’s lawful to operate a particular single-sex service for women, then it must necessarily be lawful to exclude all men from it: otherwise it’s not single-sex. So far, so obvious, you might think. If that was right, the EHRC guidance saying trans people should be treated according to the gender role in which they presented was erroneous. 

The EHRC had come up with a clever answer. Schedule 3 says that where the conditions for a women-only service are in place, it’s not unlawful sex discrimination to exclude all males. But it doesn’t say that it can’t be unlawful discrimination on any other ground. So, EHRC argued, a rule excluding all men from the service might turn out to be unlawful indirect discrimination on grounds of gender reassignment.

That was a neat argument, but there was a neat answer. Once the conditions of paragraphs 26 or 27 of schedule 3 are met, the sex discrimination inherent in the rule is excused, but it’s true that those paragraphs don’t exclude the possibility of indirect discrimination on some other ground. And it is clear enough that excluding all men from a service could sometimes put men with the PC of gender reassignment at a disadvantage compared to men without that PC, if it was a service they needed and for which there was no unisex provision where their presence would be unremarkable. So a complaint of indirect discrimination within the meaning of section 19 of the Act might be brought, and if it did a question might arise whether the rule excluding men was a proportionate means of achieving a legitimate aim. 

But at this point it becomes clear that indirect discrimination takes matters no further forward. It is only lawful to offer a single-sex or separate-sex service under paragraph 26 or 27 of schedule 3 if “the limited provision is a proportionate means of achieving a legitimate aim.”  This is the exact same question asked by s.19 to determine whether there is indirect discrimination. If the limited provision is not a proportionate means of achieving a legitimate aim, then it’s not lawful to offer a single-sex or separate-sex service at all. If it is lawful to offer a single-sex service, then ex hypothesi, the limited provision (and with it the rule excluding men) is a proportionate means of achieving a legitimate aim.

It follows as a matter of inexorable logic that if it is lawful to offer a women-only service, it’s lawful to exclude all men from it – including those who identify as women. 

One can reach the same conclusion by a shorter route. If it is lawful to offer a single-sex service for women, then of course it is lawful to exclude all men from it: otherwise it’s not single-sex, but mixed.

At ¶15, Henshaw J says this: 

The claimant submits that if a difference of treatment can be justified vis-a-vis birth men in general, then it is inconceivable that it cannot equally be justified vis-à-vis birth men who are transsexual women. On that approach, though, the Equality Act’s gender reassignment provisions would in substance provide no protection at all, in the context of an SSS, to transexual persons without a GRC.

Since the AEA’s contention was exactly that – that the gender reassignment provisions provide no protection at all to trans persons without a GRC so far as the operation of single-sex services is concerned – what this boils down to is “But on the claimant’s approach, the claimant would win!”  The same point recurs at ¶17: 

In my view, the claimant’s argument is an obvious absurdity because it would construe s.19 in such a way that Schedule 3 para. 28 could never apply to a transexual woman lacking a GRC who complained of indirect discrimination vis-à-vis birth women.

Again – that was exactly AEA’s point: paragraph 28 of schedule 3 would never arise in the case of a trans-identifying man without a GRC. So this means “The claimant’s argument is an obvious absurdity because it would lead to the claimant winning its argument.” This is a particularly pure specimen of the logical fallacy called “begging the question”: that is, assuming as part of your argument that which is to be proved.

This is odd. They don’t as a rule appoint fools to the High Court bench, and everything about Henshaw J’s career to date confirms that he’s no exception. And yet the logical fallacy is plain to be seen – twice. What’s going on here? Why did the judge find it so unthinkably absurd that AEA could be right in saying that if the law lets you restrict a service or space to women, it’s ok to – well, restrict it to women? 

I don’t know the answer to that question. I have a guess – actually I have two guesses. The first is that the promulgation of ‘Stonewall law’ has been so successful that large parts of the educated elite have absorbed it as a commonplace ‘known fact’ that it is unlawful except in the most extreme circumstances to restrict trans people’s access to spaces and services provided for the opposite sex. When AEA argued that trans-identifying males without GRCs could be routinely excluded from any legitimate female-only space or service, that came into conflict with something the judge thought he had known for ages. My second guess is in the coda at the end of this blog. 

Paragraph 17 continues:

[T]he claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29 [this is presumably a typo for 28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination.

It is not clear why the judge thinks that an approach that puts trans-identifying men without a GRC in the same position as other men for these purposes is incompatible with the tenor of the Act. The Act prohibits discrimination on various grounds as well as sex and gender reassignment; but the point – indeed the very definition – of single-sex services is that they exclude one sex. It follows that a single-sex service for women will exclude all men, irrespective of their other protected characteristics: if that goes for race, disability, sexual orientation, age, religion or belief, why would it not also go for gender reassignment?

The error into which the judge appears to have fallen is to conflate the right not to suffer  discrimination on grounds of gender reassignment with a right to be treated as the opposite sex. A trans-identifying man excluded, for example, from the ladies’ has not suffered discrimination on grounds of gender reassignment, because a non-trans-identifying man would be excluded just the same. To the extent that the law provides for a right to be treated as the opposite sex, that is done through the mechanism of the Gender Recognition Act 2004, but only for the benefit of those who have a gender recognition certificate.

At ¶16, the judge says: 

In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable that regard must be had to its impact on persons with the protected characteristic in question. It is clearly wrong to assume, as a matter of law, or as a matter of obvious practice, that the answer will necessarily be the same whether one assesses a PCP as applied to birth males in general or whether one assesses it as applied vis-à-vis birth males who are transsexual women.

This is surprising. The words of the justification provisions are identical in s.19 and in ¶¶26 and 27 of schedule 3: what needs to be shown is that “the PCP” in one case or “the limited provision” in the other is “a proportionate means of achieving a legitimate aim.” Given that the PCP is the rule excluding one sex, a court seized of a question about the lawfulness of a single-sex service would be answering at both points the question “is the rule excluding men a proportionate means of achieving a legitimate aim?” The judge in AEA appears to think that that question could have one answer for the purposes of ¶26 or 27, and a different answer for the purposes of section 19. The rule is either a proportionate means of achieving a legitimate aim, or it is not: it can’t be both a proportionate means of achieving a legitimate aim and not a proportionate means of achieving a legitimate aim at one and the same time.  

Coda – on words 

I was junior counsel for AEA in this case.  Before that hearing, I had been willing – out of politeness, and sensitivity to the feelings of trans people generally – to write and speak of “trans women,” and use feminine pronouns, even when not referring to real individuals but exploring hypotheticals and generalities. Listening to argument in court that day was a personal tipping-point. It became vivid – to me at least – in the course of the hearing that the unreal language being used by everyone was obscuring the logic of the arguments and confusing the court. It’s much easier to see at a glance that a legitimate rule excluding men will legitimately exclude all men if your language acknowledges that all the people whom it excludes are indeed men. 

Thinking, speaking and writing of “trans women” or “transsexual women” primes our minds to conceptualise trans-identifying men as a kind of woman. They are not: men are still men – however they identify, whatever they wear, and whatever treatment they may have undergone to modify their bodies to look more like women’s bodies. Those of us who would defend clarity and rationality in this area of the law need to hold that line. 

Fostering good relations

Edinburgh Rape Crisis Centre’s appointment of a man to its CEO role is a shocking gesture of contempt towards traumatised women.

Mridul Wadhwa is the CEO of Edinburgh Rape Crisis Centre. The job was advertised as being restricted to women, under schedule 9 of the Equality Act 2010. 

Although ineligible for the job as advertised, Wadhwa was appointed.

At this point I must digress briefly. I have written before about “misgendering” (here and here). In writing about Wadhwa’s appointment to this role, I will use the nouns and pronouns appropriate to his biological sex. I do not apologise for doing so. I do so because I am writing about a situation in which sex matters. I have a serious point to make, and I intend to make it as clearly and powerfully as I am able to; I am not prepared to obscure my message with misplaced politeness.  

Single-sex spaces and services are permitted by schedule 3 to the Equality Act 2010, and jobs may lawfully be restricted to those having a particular protected characteristic by schedule 9. Because of the legal fiction that some men are women created by section 9 of the Gender Recognition Act 2004, if a job needs to be done by a woman for the privacy and dignity or safety of service users, then two occupational requirements will be relied on: to be (legally) a woman; and also not to be a transsexual person. (This is the language of the 2010 Act: section 7(3) defines “a transsexual person” as a person with the protected characteristic of gender reassignment.) 

Edinburgh Rape Crisis Centre did not explain this subtlety in their job advert. They didn’t need to: they had said “only women need apply,” and the context should have made it clear to any reasonable reader that the job was not open to males, however they identified and whatever paperwork they might have. They would have been perfectly entitled to decline Wadhwa’s application, relying on Schedule 9. Wadhwa doesn’t have a GRC, so in his case it would have been a straightforward application of the requirement to be a woman: the Centre would have had no need to rely on an additional requirement not to be a transsexual person.   

But they didn’t decline. They declared an occupational requirement to be a woman in their job advert; but when Wadhwa applied for the job, they waived it in his favour. 

Discrimination claims? 

No doubt the runner-up was a woman who was properly eligible for the role, and who did not get it because Wadhwa was given the job instead. That woman has not suffered direct sex discrimination: the reason she didn’t get the job was not because she’s a woman, but because Edinburgh Rape Crisis Centre decided to ignore the occupational requirement it had specified and give the job to a man instead. There might be some way to frame an argument that the runner-up had suffered indirect discrimination by saying that the failure to operate the occupational requirement properly was a provision, criterion or practice that put women at a particular disadvantage compared to men – but that is already sounding convoluted and unnatural, and I admit I lack enthusiasm to analyse it further. I don’t think it would succeed. 

The position of a man deterred from applying for the role (or who applied but was rejected on grounds of his sex) is more straightforward. A candidate in this position has suffered direct sex discrimination, which ordinarily would have been sanctioned by the occupational requirement. But in waiving the occupational requirement for the benefit of  Wadhwa, Edinburgh Rape Crisis Centre has at least arguably lost its protection. A discrimination claim must ordinarily be brought within 3 months of the act complained of, so it is unlikely that the Centre will now face a claim of this nature relating to the CEO post. But it appears intent on repeating the same error in its more recent advertisement for a Chief Operating Officer. That advert states that only women need apply, but also says: 

“We are committed to a diverse and inclusive workplace and especially welcome applications from women of colour, trans women and disabled women.”

It seems, then, that Edinburgh Rape Crisis Centre proposes to apply the same modified occupational requirement – to be either a woman, or a man who self-identifies as a woman – to the role. It is not at all clear that it is entitled to do so, and an employment tribunal claim by a potential male candidate for the role who has been deterred by the schedule 9 stipulation must be a real possibility. 

The Equality and Human Rights Commission’s role

By section 149 of the 2010 Act, public authorities are required to have due regard in exercising their functions to the need to eliminate discrimination, advance equality of opportunity, and (crucially for these purposes) to foster good relations between people who share a relevant protected characteristic and those who do not. The Equality and Human Rights Commission has duties to promote understanding of the 2010 Act, and to promote good practice; and by s.16 it has power to conduct an inquiry into any matter relating to those duties.  

The EHRC’s answer to an inquiry about any action it intended to take in relation to the appointment of Wadhwa to the Edinburgh Rape Crisis Centre post was (after delay of over 12 weeks) as follows: 

“The Commission has a number of regulatory powers. However, as you will appreciate, the Commission has limited resources and we must use our powers strategically. We consider our litigation and enforcement policy when deciding when to take legal action. The policy can be found here . 

We have considered carefully whether taking formal action in relation to ERCC would be a proportionate and effective use of our powers. We have taken into consideration the fact that ERCC is a small third sector organisation, that the recruitment for the role in question has been completed and, if there is an unlawful act which is not clear, that the number of people who may have been adversely impacted in the recruitment process is limited [being men suitably qualified for the role and deterred from applying due to the advert specifying that only women need apply]. On balance therefore we do not believe that using our enforcement powers in relation to this matter is proportionate.”

Edinburgh Rape Crisis Centre’s misuse of its schedule 9 freedom to restrict a role to women has received wide public attention and has been the subject of many news reports. Its appointment of a man to its CEO role has operated – whether by accident or design – as a prominent show of strength: a demonstration to abused and traumatised women that there is no sanctuary for them where they can be sure that no men are present, and sure that no men are making decisions. The appointment was an inflammatory act that could scarcely have been more calculated to damage relations between women and trans people, and it was effected through a flagrant misuse of schedule 9. 

It is true that the EHRC has many claims on limited resources, and has considerable freedom to determine how it will apply those resources; so any attempt to challenge that decision by way of judicial review would be an uphill struggle. All the same, it is bitterly disappointing that the EHRC does not regard this situation as sufficiently important to justify a use of its investigatory powers.

Conclusion 

That’s the legal situation as I understand it. But in truth, the legalities of the situation are peripheral. What really matters is the concrete reality. The concrete reality looks like this. 

Wadhwa is a man who has secured and continues to hold an appointment as CEO of a rape crisis centre that purports to provide an all-women space, to the profound dismay of many of its potential users (see e.g. Jo Bartosch’s account in her powerful piece in The Critic of the flood of responses from survivors that she received to a call for information; and this blog). 

Wadhwa is a man who has prioritised his own needs over the needs of service users, and has brought his male body into a space that should be wholly controlled by women; entered only with their consent, freely given. He has done that despite vociferous objections from many of the women concerned. He has implicitly characterised service users who object as “bigots.” 

No man should be made CEO of a rape crisis centre that purports to offer a female-only service; but especially not a man whose actions have demonstrated the open contempt for women’s boundaries that Wadhwa’s have. 

Wadhwa should resign.

Don’t be that employer

Legal Feminist tweeted a short thread starting like this the other day:  

It seems worth elaborating briefly in a blog, so here goes. 

The first point to make is that the allegation made by @MotherCecily is unverified: I don’t know who she is, or who her husband is, and I haven’t seen the email or the agenda. But it will serve anyway as an example of the kind of thing that an employer might do. 

It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.”  It looks pretty bad, doesn’t it? 

The memo doesn’t seem to have circulated very far yet. Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable. 

But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment. 

First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet). Bearing in mind the prevalence of active harassment of those who express gender critical views, there may be quite a few. 

Secondly, it’s likely to be pretty bullet-proof. If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind. 

Finally, connoisseurs of such things will admire the irony. If employment tribunals awarded points for style, being found liable for discrimination contained in your diversity training ought to get full marks. But if you’re an HR manager who’d rather not be awarded points for style (which an employment tribunal might possibly call “aggravated damages”), you should be careful not to expose staff to training of this nature. 

The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog),  or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular. 

Transgender Law: a practical guide?

In “A practical guide to Transgender Law” (Law Brief Publishing, 2021), Robin Moira White and Nicola Newbegin have written a short book of ambitious scope: in fewer than 300 pages, they take in subjects as varied as discrimination, asylum, data protection, education, prisons, family law and sport.

The first point to note is that the book lacks a consistent sense of purpose, wandering between summarising the law, setting out statutory and non-statutory guidance and policy material, charting the development of the law and social attitudes in this area, and legal analysis. Perhaps as a result, its structure is choppy and repetitious: it’s not clear, for instance, why the Equality Act 2010 and the Gender Recognition Act 2004 get chapters to themselves as well as separate treatment in chapters on associations, education, employment and sport; or why “Prisons” (Chapter 15) is not treated as part of “Criminal Justice” (Chapter 6). The book is poorly proof-read, with minor errors sprinkled throughout the text and one instance where a section of nearly a page and a half appears in two different places. 

The book’s defects of structure, clarity of purpose and editing might have been forgiven if the authors had been able to offer helpful insights on some of the undoubtedly tricky problems in this area. But the book is equally disappointing in almost all matters of substance. The chapter on data protection and confidentiality (Chapter 7) provides a competent summary of the law, as (for the most part) does Chapter 3 on the GRA; but the rest of the book suffers from a pervasive tendentiousness, coupled with legal analysis that is either weak or simply absent.

The first example comes before the book is even properly under way, in the terminology section at page xviii. The authors dismiss the binding judgment of the High Court in Corbett v Corbett [1970] 2 WLR 1306, apparently on the basis of the biologically illiterate claim that the existence of differences of sexual development undermine the distinctness of the categories “male” and “female”. This is unsupportable. Biological sex is an immutable and as a rule easily observable feature of human beings. In a small minority of those with certain rare DSDs, sex may be incorrectly observed at birth; but that fact no more undermines the male/female binary than the fact that individuals are occasionally prematurely pronounced dead undermines the alive/dead binary. As the Employment Appeal Tribunal has since pointed out in Forstater: “the position under the common law as to the immutability of sex remains the same; and it would be a matter for Parliament… to declare otherwise.” 

Discussing what “man” and “woman” mean in the EqA, the authors say this: 

“The EqA 2010 definition of ‘man’ is a male of any age and ‘woman’ is a female of any age’ (EqA s212). But without a definition of ‘male’ and ‘female’ this does not help. Is a trans male a male or a trans woman female? Is a trans woman something different from a woman? But a gay woman or a black woman are still women, why not a trans woman?” 

There’s a sleight of hand here – whether conscious or not. The argument plays on the words of the question-begging neologism “trans woman” to suggest that “trans” is simply an adjective qualifying the noun “woman”, and therefore a “trans woman” is just another kind of woman. It does not admit to the true nature of what the authors are proposing, which is a radical extension of the meaning of the word “woman” – well beyond the natural meaning of a concept that is familiar in every language and has been for as long as humans have used speech – to include those men who think of themselves as women. For anyone who does not accept that trans-identifying males are women, the proposed parallel with “black woman” or “gay woman” will land badly. (For readers less familiar with these debates, it may be helpful to spell out that the term “trans woman” is frequently claimed not only by those who have taken all available surgical, hormonal and cosmetic steps to look as much like women as it is possible for them to do, but also by others who retain fully intact male genitals and sometimes even a beard, relying on nothing more than clothes and cosmetics to signal their essential womanhood.)

The authors also seek to construct an uncertainty about whether a person’s legal sex might change in the absence of a gender recognition certificate. This is fanciful. Biological sex can’t change, and the common law recognises that; and the mechanism for changing legal sex set out in the GRA is self-evidently exhaustive. 

In the terminology section, at pp. xix-xxi, the authors quote at length from the speeches in the House of Lords in Chief Constable of West Yorkshire Police v A (no.2) [2005] 1 AC 51, acknowledging that Baroness Hale anticipated that the GRA would resolve these questions; but then seem to give up on the daunting task of analysing, by reference to the words of the Act, whether and if so how it has done so, preferring instead a hand-waving assertion that the authors cannot believe that a trans-identifying male who has transitioned early enough never to have developed through male puberty can really be regarded as a man in law simply because he lacks a gender recognition certificate. It is not clear why they think this, or what aspect of their hypothetical case they think is crucial. They seem to set store both by the length of time for which an individual has “lived as” the opposite sex and the degree of success with which he can “pass”.

Whatever their thought processes, they are clearly wrong. The House of Lords in A and Parliament in the GRA chose different solutions to the problem of who should be treated as having changed sex, and what the consequences should be when they were. The House of Lords chose exacting conditions (a complete or all-but-complete cosmetic appearance of the opposite sex: in the words of Lord Bingham, being “virtually and for all practical purposes indistinguishable”), but far-reaching consequences where those conditions were met. Parliament chose a much less demanding standard for issuing a gender recognition certificate, but also limited the effect of a GRC once granted. It is of course Parliament’s choice that is now the law. 

Commenting in Chapter 3 (Gender Recognition Act 2004) on section 9 of the GRA, the authors say: 

“[A]s far as the law is concerned, the holder of the certificate now has the gender stated on that certificate “for all purposes”. This provision dealt admirably with the original focus of the Act: pensions and the right to marry. It is still important in a number of areas including the fields of data protection and prisons (see relevant specialist chapters). The GRA itself contains a number of exceptions. The position in respect of the Equality Act brought into law only 6 years later is far from certain.”

This passage could be clearer, but the implication seems to be that when the EqA was passed, its interaction with the GRA was somehow overlooked, or inadequately worked out. Nothing could be further from the truth: the expression “Gender Recognition Act” occurs 14 times in the EqA and its explanatory notes, and the expression “gender reassignment” no fewer than 95 times. The relationship between the EqA and the GRA is both deliberate and intricate: no doubt there are some unintended consequences and difficult questions, but – particularly given that much of the relevant phraseology of the EqA is little altered since the Sex Discrimination Act 1975 – what is clear beyond any sensible doubt is that for the purposes of the EqA, “sex” means biological sex, except where modified for legal purposes by the operation of section 9 of the GRA. 

At the end of Chapter 6 (Criminal Justice), the authors deal very briefly with searching under the Police and Criminal Evidence Act 1984. They quote from the Metropolitan Police Service’s “Transgender Policy” which purports to allow trans-identifying officers to conduct searches of suspects of the opposite sex, but notes that since non-binary identities are not covered under the Equality Act, officers and staff who identify as non-binary will not be permitted to search the opposite sex. The authors’ legal analysis of this policy is confined to the single sentence, “Authors’ note: the last answer may need to be revised in the light of Taylor v Jaguar Land Rover.” 

This is inadequate. The policy quoted is unlawful insofar as it applies to intimate searches, since PACE s55(7) requires that “A constable may not carry out an intimate search of a person of the opposite sex.” The authors claim elsewhere in the book that, following Taylor v Jaguar Land Rover 130447/2018, “those with more complex gender identities are now held to be within the protected characteristic of gender reassignment.” There are a number of problems with this statement. First, a decision of an employment tribunal has no weight as precedent, yet White and Newbegin treat Taylor as if it were a binding authority. Secondly, having decided to undergo a process of reassignment and announced that decision, Taylor undoubtedly had the protected characteristic of gender reassignment on a perfectly conventional understanding of s7; so even if the judgment were capable in principle of being binding, it would not have the effect claimed. (Readers wishing to gain a fuller understanding of Taylor are directed to Maya Forstater’s excellent blog on the subject.) Third, and for the Criminal Justice chapter most pertinently, the fact that an individual has the protected characteristic of gender reassignment for the purposes of the EqA does not change their biological or legal sex. The authors do not explain how the EqA duty not to discriminate on grounds of gender reassignment could be thought to override the same-sex searching requirement in PACE. 

In Chapter 8 (Education), the authors say this about toilets in schools: 

Reliance is placed on the School Premises (England) Regulations (2012)… which specify the provision of separate toilet facilities for boys and girls over the age of 8 except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one person at a time. However, there is no definition of sex in the Regulations and whether a trans pupil can lawfully be excluded from the facilities which match their acquired gender is, as yet, untested… the question whether exclusion of a trans girls [sic] from toilets would be a proportionate means of a achieving [sic] a legitimate aim is untested in law. 

Sex is not defined in the Regulations; nor (more relevantly) are the related terms “boys” or “girls”. But these are ordinary English words that require no definition. A child cannot be granted a GRC, so there are no ticklish questions about “legal sex” and “biological sex” to get into here: the child’s sex is and can only be his or her biological sex. If a trans-identifying boy (a “trans girl” in the authors’ preferred terminology) is admitted to the girls’ toilets, those toilets are no longer separate facilities for girls: they have become mixed sex. The Regulations require separate facilities, so boys (however they identify) must be excluded from the girls’ toilets, and girls (however they identify) from the boys’. Moreover, it is not clear what the authors think is the relevance of the question whether exclusion of a trans-identifying boy from the girls’ toilets would be a proportionate means of achieving a legitimate aim: no such test is identified in the Regulations, which simply make separate facilities mandatory.

Chapter 12 is devoted to the question whether gender critical views are a protected belief for the purposes of the EqA. It seems odd that the authors thought this narrow question merited a whole chapter to itself; but odder still, given that they did not think it worth waiting for the judgment of the Employment Appeal in Forstater v CGD Europe [2021] 6 WLUK 104, which at the time of writing they note was expected within a few weeks. The predictable result is that the entirety of their detailed consideration of the first instance judgment is already out of date.

At Chapter 15 (Prisons), the authors discuss the case of R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin). The case was about the extent to which a man who was in prison for his part in the extended torture and murder of his wife was entitled to be supplied in prison with items said to be necessary to his recently-conceived desire to “live as a woman”. The judgment notes at ¶19 that he did not appear to have a diagnosis of dysphoria, and was reported to be “saying different things to different people”.

​​White and Newbegin summarise the essential facts and the outcome like this: 

“Whilst it was recognised by the court that there was no question of her being required “to live as a man”, she was housed in a male prison and was refused items such as a wig (she was bald) and tights. The decision to refuse these items on the basis of increased risk in the prison community was upheld. The prison service said that tights could be used as a ligature and were easily concealed. A wig, it was said could be used in an escape attempt. The judge recognised the sensitivity of the position but upheld the decisions taken.”

Reading that, one might think the prisoner’s requests were modest and reasonable. But the authors’ “such as” turns out to be capacious. At paragraphs 27 and 47 respectively, the judgment describes more fully the problem and the nature of the risks: 

“The particular problem asserted by the claimant is her access to prosthetic items – wigs, breasts and vaginas.”

“In relation to tights there is also a demonstrable security concern. The same applies to intimate prosthetics. With tights it is obvious they can be used for escape purposes and other dangerous illegitimate use. With intimate prosthetics the real issue of hiding items is pronounced. In order to alleviate this, the governor would have to institute regular and repeated intimate searches.”

If the authors’ sanitising account of the facts of Green is disquieting, even more so is their failure to mention a key part of the judge’s reasoning in the case. One of the issues was whether Green had suffered discrimination on grounds of gender reassignment, and there was argument about the characteristics of the comparator that should be used to test that question: should the comparator be a man who lacked the protected characteristic of gender reassignment, or a woman who lacked that protected characteristic? The judge did not think that a difficult question. As he put it (at paragraph 68): 

Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland… I find it impossible to see how a female prisoner can be regarded as the appropriate comparator.The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male.

This comparator question is of crucial importance to many of the contentious questions relating to the treatment of trans-identifying people. Both of the authors contributed to the Employment Lawyers Association’s response to the 2018 Government consultation on reform of the GRA, which (answering question 13 on single-sex and separate-sex services) describes the comparator question as going to the heart of the wider ideological debate about the nature of sex and gender. Their failure to discuss this aspect of Green is hard to comprehend.

Examples abound of analysis that is weak, tendentious or entirely missing, but one further instance is worth particular attention. At Chapter 9 (Employment), the authors comment on an example of a possible occupational requirement, given in the Explanatory Note to the EqA, to be a woman and not a transsexual person, even with a GRC, in order to work with victims of rape as a counsellor. They say this: 

[C]are should be taken to note the word “might”. For example, the situation may well depend on how well the trans person “passes”: if it is not possible to tell by looking at / listening to a trans woman that she is transgender then it is far less likely that the genuine occupational requirement would apply as compared with, say, a trans woman who does not pass as well and in a number of respects still looks male. 

The idea that “passing” is something that can or should ever be judged as a condition for employment is fraught with difficulty and embarrassment, both for anyone called upon to make such an invidious judgement, and for the trans person concerned. But even if that difficulty could be overcome, it doesn’t seem fanciful to think that the ability of a rape victim to detect when she is in the presence of a man may be heightened: her perception might not coincide with that of the manager. But more seriously than either of those objections, it should be self-evident that a rape victim who wishes to speak to a female counsellor should be granted that wish without question, and without any threat of subterfuge. It is difficult to imagine a more heartless message to convey to a rape victim than “The person you are sitting with, alone in a room, talking about your experience of rape, will either be a woman, or else a man who passes so well as female that you won’t be able to tell.”

Conclusion 

If the objective of the book was to increase understanding of the law in this area, it must be judged an abject failure. Even a reader with little prior knowledge will be struck by the regularity with which the authors simply give up on the task of analysis: 

“The law is, at present, hopelessly confused… Society (and lawyers and legislators) still have much thinking to do” (p.xxi). 

“The position in respect of the Equality Act… is far from certain” (p.34). 

“Legislation is urgently required to clarify these provisions otherwise case law will be needed to fill the gap” (p.55). 

“There does not appear to be case law on the point…” p.58.

“Whether a school should intervene to act in a way apparently inconsistent with a pupil expressing their gender identity would appear to be legally untested” (p.101). 

“Whether treatment of trans pupils such as excluding them from dormitory-style accommodation would be a proportionate means of achieving a legitimate aim remains untested” (p.102).

“…. these provisions provide no guidance” (p.209).

“… this will remain a controversial area in which further legal challenges may be anticipated.” 

In some of these cases, there is genuine reason for uncertainty; in others, the law is clear enough, and the uncertainty imaginary. In both cases, readers looking for assistance will be disappointed by the authors’ repeated unwillingness even to attempt to provide it. If a pair of guides on a difficult mountain path were as consistently flummoxed as the authors of this book, their clients would be saying their prayers. In truth, there is little of either guidance or practical utility in White and Newbegin’s “practical guide”.

I am (even) more than usually grateful to the several “critical friends” from the Legal Feminist collective – and others beyond: you know who you are –  whose characteristically vigorous and forthright comments and editing and have improved this review beyond recognition from its first draft. 

More on “misgendering”

The judgment of the EAT in the Forstater v CGD Europe & ors UKEAT/0105/20/JOJ is prefaced – quite unusually – with a list of things that it does not mean. There had been hyperbolic predictions from some quarters (including the Respondent’s counsel) about the dire consequences of a ruling in Ms Forstater’s favour, so the disclaimers weren’t wholly misplaced. But they were ripe for parody, and Twitter and Mumsnet didn’t shirk the task. The Guardian writer Oliver Burkeman started it: “It’s important to emphasize that the ruling does NOT give Maya Forstater the right to come round and steal your plasma screen tv,” and presently there was a long and helpful list of all the things the ruling didn’t give Maya Forstater the right to do, from tipping her seat back on a short-haul flight to Düsseldorf to wearing armour in the Houses of Parliament. 

The list given by the EAT is shorter, running to only four items, and more prosaic. To summarise: 

  • The EAT isn’t taking a position on “the transgender debate”. 
  • The judgment doesn’t mean anyone can “misgender” trans persons with impunity.
  • It doesn’t mean trans persons aren’t protected from harassment and discrimination under the EqA. 
  • It doesn’t mean employers and service providers won’t be able to provide a safe environment for trans persons.

The first item is self-evident: the EAT was not asked to give its own view on the merits of Ms Forstater’s belief, and it would have been irrelevant to its task (and very surprising) if it had done so. The third item on the list is scarcely less obvious: of course trans persons retain the protection of the EqA from discrimination and harassment, just like everyone else. 

The fourth item is that the judgment doesn’t mean that employers and service providers will be unable to provide a safe environment for trans persons. This is closely related to the third, and scarcely less obvious: trans persons are no different from anyone else in that they are protected from unlawful discrimination and harassment on grounds of any protected characteristic – that is the mechanism by which employers and service providers are required to provide them with a safe environment. Harassment for the purposes of the EqA is defined as conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether a claim of harassment is made out, it must take into account both the subjective perception of the person who feels harassed, and the objective question whether it is reasonable for him to feel that way; as well as “the other circumstances of the case”. 

“Misgendering”

It is the second item on the list I want to take a closer look at:

This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case

There were plenty of hot takes on Twitter to the effect that the EAT had ruled that “misgendering” was unlawful harassment; or that even if it hadn’t, that it was possible to infer from the judgment that “misgendering” in the workplace would amount to unlawful harassment in almost all imaginable circumstances. I dealt with one of the latter here. 

What the judgment actually says is just that it doesn’t say anything about the circumstances in which “misgendering” will amount to harassment. The EAT sets that out at a bit more length at ¶104: 

That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation.

That’s worth some unpacking. 

The Claimant [cannot] go about indiscriminately “misgendering” trans persons with impunity.

That’s the bit that looks most like an assertion that “misgendering” is prohibited. But it needs to be read together with the next sentence: 

The Claimant is subject to the same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. 

The first thing to note is that those prohibitions are quite limited and specific. The EqA does not place a general obligation on all of us not to discriminate against – or even victimise or harass – others on grounds of protected characteristics in our daily lives. It operates in defined spheres: the workplace; provision of goods, services and public functions; education; and associations. So if your friend asks you to use zie/zir to refer to him from now on, and you decline, you may lose your friend, but he’s not entitled to sue you under the EqA for any variety of discrimination for “misgendering” him. If a celebrity who is obviously male announces publicly that he wishes to be referred to as a woman from now on, and you write about him using grammatically correct pronouns on Facebook or on your blog or in a comment piece in a national newspaper, he doesn’t have a claim against you under the EqA either: you’re not his employer, or providing him with a service, or running an educational establishment at which he is a student or an association he belongs to or wants to join. 

If your friend asks his employer to require all his colleagues to use his neo-pronouns, and it says no, that may be another matter: your friend’s employer is bound by the EqA in its dealings with him, so he could at any rate frame an intelligible claim against it. And if you work for the same employer as your friend, and you refuse to use his neo-pronouns in the workplace, you could be personally liable under the EqA if a tribunal decided that your conduct amounted to harassment. 

The rest of the EAT’s ¶104 just says that “misgendering” may sometimes be harassment, but that whether or not it is in any given case will depend on the surrounding circumstances. 

I want to provide some pointers to the circumstances in which I think that “misgendering” might – and might not – be regarded as harassment under the EqA. I’m going to do that by examining a series of scenarios (some of which appeared without analysis in my previous blog on the subject), and saying briefly which side of the line I think they fall, and why. But before I do that, a short observation about the word “misgender”, and the manner in which the EAT uses it in its judgment in Forstater. 

Quotation marks in the EAT’s judgment

 The word (including “misgendered” and “misgendering”) appears 14 times in the judgment (leaving aside its appearance in direct quotes from the employment tribunal’s judgment), in the following distribution: 

“misgender” (double quotation marks): 5

‘misgender’ (single quotation marks): 2

misgender (no quotation marks): 7 

There are also several occasions – notably at ¶90 – where instead of speaking of “misgendering”, the EAT refers more neutrally to a failure to use preferred pronouns. 

“Misgender” means “to gender wrongly”; its use to refer to a refusal to bend the rules of grammar on the request of a trans person is tendentious, to put it mildly. I infer from the EAT’s use of quotation marks that – whether instinctively or as a matter of deliberate calculation I cannot guess – it was disinclined to accept that tendentious implication uncritically. That may be a straw in the wind as to the EAT’s future treatment of complaints about pronouns.

Is it reasonable to insist your colleagues use your preferred pronouns?

One final preliminary point. The EAT in Forstater deliberately limited what could be inferred from its judgment, preferring to leave wider questions about “misgendering” for another day. In particular, it did not express a view on how reasonable it was – or in what circumstances it might be reasonable – for an employee to demand that his colleagues use language in referring to him that is both grammatically incorrect and psychologically unnatural. 

My view on this is that such a demand will rarely, if ever, be reasonable. 

I want to pause here, because what I have just written may strike some as shocking or heretical. So let me say it again, with greater emphasis. I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them. I don’t think anyone is entitled to exercise that kind of detailed control over other people’s speech, or make that kind of incursion into other people’s freedom of expression. I think it is truly amazing that we have arrived at a point where pointing this out may be widely regarded as a sign of bigotry. And yet, there is no natural limit to the extent of this power-grab, if once we accede to it. Some of the examples that follow demonstrate that. 

I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them.

Some scenarios 

I’m going to recycle some of the scenarios from my previous post on misgendering, as well as adding a few more. The purpose of the previous post was to demonstrate that it was too simplistic to claim that “misgendering” a colleague in the workplace would always be harassment, so in some cases I just offered them without analysis as examples of situations in which the answer wasn’t obvious. This time I’ll say what I think the answer is in each case. 

In each case John/Jen (referred to as “J”) is the trans employee, and Liz (L) is his colleague. J, who is married, makes his announcement on his first day at the office – the sales department of Zeitghost plc, an IT firm – at the staff meeting at which he is introduced to his colleagues. He’s in smart-casual masculine dress that day, but he explains that from tomorrow he will be consistently wearing women’s clothing, and hopes to embark on a process of medical transition over the coming months. He wants to be known as Jen. He mentions that his marriage is still happy, and his wife is supportive. A male colleague who has always had a friendly, jokey relationship with J asks, “Does this mean you’re a lesbian?” and J says “I suppose I must be.”

Scenario 1 

L is a Quaker. She says her commitment to the truth as she understands it is central to her belief, and although she is perfectly content to use J’s new name, she is not able in conscience to use grammatically inaccurate pronouns. She says she will do her best to accommodate J by rephrasing anything she says about him to avoid using pronouns at all where she reasonably can, but she warns that this will be easier in writing than in speech. J complains that by refusing to use his preferred pronouns, L is harassing him. 

Comment

L is entitled not to suffer discrimination on grounds of her Quaker beliefs. J is entitled not to suffer conduct by colleagues that has the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether conduct amounts to harassment of J, it must take into account both J’s perception and whether it is reasonable for the conduct in question to have the effect of violating his dignity (etc.). L’s entitlement not to suffer discrimination on grounds of her beliefs must be relevant to the analysis of whether it is reasonable for her conduct to have that effect. 

My view is that J’s expectation – that his preference to be referred to using female pronouns should trump L’s right not to be forced to use language in a way she regards as untruthful – is unreasonable.  He may, subjectively, feel harassed; but I think the extent of his proposed incursion into L’s rights means that the answer to the question whether it is reasonable for him to feel harassed is considered should be an unequivocal “no”.  Note, though, that although this is my confident view of the correct interpretation of the EqA, it can’t be assumed that an employment tribunal would necessarily agree. On balance, I think on these facts L would probably prevail in the end, but it could well require an appeal.

Scenario 2

L has gender-critical views, but she doesn’t feel confident to express them openly in the workplace. She says nothing when J makes his announcement, but in the months that follow, she avoids using any pronouns to refer to him. Mostly, she manages that quite smoothly, but occasionally it makes her sound a bit stilted. 

After a few months, J notices that L is avoiding using any pronouns to refer to him. He raises a grievance, saying that this shows that she doesn’t accept him as a woman. He says this has the effect of creating a degrading and humiliating environment for him. 

Comment 

In this scenario, it is not enough for J that L avoids using masculine pronouns for him: he is aggrieved by her refusal to use feminine pronouns. 

This scenario seems to me the one most likely to arise in real life. Most people with gender-critical views will not be seeking to pick a fight with a trans-identifying colleague; but they may feel quite strongly about their own entitlement to draw a line short of active assent to a belief system which they reject. It may feel to them as if adherents to the dominant belief system in their workplace are demanding from them a humiliating gesture of submission. 

I think facts similar to these are likely to give rise to bitterly fought discrimination cases in the employment tribunals in the months and years to come. I can’t offer HR departments much comfort, either: if they back L, J may sue; but if they back J, L may sue. J may have the enthusiastic support of his trade union, which L will probably lack; then again, L, lacking union support, may be driven to crowd-fund for her legal fees, adding a lot of adverse publicity to the employer’s woes. On balance, backing L is probably the more prudent course for employers, as well as being the right thing to do.

Scenario 3

L has gender-critical views, which are well known to her colleagues. When J makes his announcement, she says “I have no wish to offend you, and I’m happy to call you Jen if that’s what you would like. But I am not prepared to refer to you using female pronouns, because I don’t want to signify assent to a belief system I don’t accept.” 

Comment 

My view is that L is within her rights in this scenario, too, but I don’t feel any confidence that a tribunal would agree. This, too, is the stuff of test cases. 

Scenario 4

L is on the autistic spectrum. She is confused and upset by J’s insistence that he is now a woman called Jen, and being required to use what she thinks are the wrong name and pronouns for J causes her intense distress. 

Comment 

I think this case is clearer. The analysis is very similar to the case where L is a Quaker. J’s demand is unreasonable, and L’s inability or refusal to use his preferred pronouns cannot reasonably be characterised as harassment. If L is disabled within the meaning of the EqA, any attempt to force her to comply with J’s demands is likely to be disability discrimination. 

Scenario 5

L is a child-abuse survivor. When she was ten, her abuser, who was in his mid-20s, groomed her by saying that he was really a teenager in his heart – he’d always been lonely as a child and just wanted another child to play with. L believed him, and at first she liked him and felt a bit sorry for him. He was obsessed with Harry Potter, just like her, and they’d played make-believe games together. L is a lesbian. 

On hearing J say that he supposes he is a lesbian, L suffers a severe PTSD reaction. She goes off sick for a couple of weeks. Her fit note just says “stress”, and when she returns to work she conducts herself as in variation 2: she ducks the whole issue in J’s presence, but refers to him by grammatically accurate pronouns in his absence, and it gets back to him. 

J complains of harassment, and HR calls L in for a meeting to explain herself. L breaks down in tears and explains what lay behind her reaction to J’s announcement. She says she has been horrified by make-believe games ever since being abused as a child. She says that she has no wish to upset J, and she would never describe his transition to his face as “make-believe,” but in truth that is how she experiences it. She says if the employer insists she has to refer to J using female pronouns, she will have no option but to resign. 

Comment

This is a somewhat more difficult situation for HR to deal with, because although J’s demand is grossly unreasonable as applied to L, they can’t explain to J why that is so without disclosing highly sensitive confidential information about L. 

My advice to Zeitghost in this situation would be that they should apologise to L, and tell J that he is at liberty to think of himself and express himself how he chooses, but he is not entitled to require his colleagues to use his preferred pronouns. If J brings an employment tribunal claim and they want to explain the full circumstances that led to their decision, they will need to ask the tribunal for an anonymity order to protect L’s privacy. 

Scenario 6

This time, J has announced that he is non-binary, and his pronouns are zie and zir. 

L says she’s busy at work and in her personal life, and she has no intention of learning a load of made-up grammar in order to refer to J. 

Comment 

I think J’s demand is unreasonable, and L’s response – even if the grammar isn’t actually terribly complicated, and “zie” and “zir” are just to be swapped in for “he” and “him” – is forgivably short. Again, though, I am not confident that in the current climate a tribunal would necessarily agree. 

Scenario 7

This time, J has announced that he has a complex non-binary identity. He says his pronouns are are “zoi, zer, zin, zim” in the vocative, nominative, accusative and dative cases, respectively; and his possessive adjective is “zein/zoiner” in the third person and “zoir” when addressing him. He passes a short handout around explaining the grammar. (Some of his colleagues are relieved to learn that his possessive adjectives are required to agree only in number, but not also in gender, with the noun to which it refers.)

L’s response is as above. 

Comment 

If you didn’t agree with me on the zie/zir scenario, what about J’s more complicated demands in this one? Do you think it’s ok for zin to require zoiner colleagues to grapple with zein invented grammar? And if not, where exactly do you draw the line? 

Scenario 8

When J makes his announcement, L says that she holds gender-critical beliefs, and is not prepared to pander to his delusions. She makes a point of calling him “John,” and referring to him using male pronouns when referring to him in meetings, whether in his presence or not, and in emails to the team. She says things like “Just like a man!” any time he does anything that she regards as stereotypically male behaviour, and frequently talks of his “male privilege.”

Comment

This is what harassment looks like. L is going out of her way to cause J distress and humiliation. Her employer must put a stop to her behaviour at once.

The Protection From Harassment Act 1997

Finally, it’s worth noting that in Forstater, the EAT is referring only to harassment as a form of discrimination under the EqA. There is also an offence, and a civil wrong, of harassment under the Protection From Harassment Act 1997. No doubt “misgendering” could be performed in a manner that would give rise to liability under the PFHA. Detailed comment on what that would involve is a matter for a separate blog; for now it’s sufficient to comment that the threshold is high: the ordinary annoyances, affronts and upsets of everyday life will not cross it.

Conclusion 

“Misgendering” is a concept that offers the employers of trans-identifying people nothing but trouble, from all sides. Pronouns are a part of language that we normally use almost entirely unconsciously and automatically. Putting them on permanent manual override imposes a cognitive cost – as is obvious from the regularity with which even committed allies stumble when trying to comply. It demands that attention be paid to something that we can normally do with no attention at all. I suggest above that the demand for ungrammatical pronouns is a power-grab, so perhaps the difficulty and the call on conscious attention is part of the point. 

“Neo-pronouns” are the perfect reductio ad absurdum: if a trans-identifying male is entitled to “she/her,” why isn’t a non-binary person entitled to “they/them”? And if “they/them”, why not “zie/zir” or “xe/xem/xyr”? And if a non-binary person is entitled to neo-pronouns that substitute one-for-one for English pronouns, what possible justification could there be for saying that they can’t borrow the more complex grammar of another language – or invent their own? What rational limit could there ever be to their entitlement to hijack their colleagues’ attention with awkward and unfamiliar grammar? 

Far from accepting that failure to use a trans-identifying individual’s preferred pronouns will always or normally amount to harassment, my view is that – unless done aggressively and with intent to harass – it almost never will. The very concept of “misgendering” is a menace: it should be carefully wrapped in quotation marks, and disposed of as hazardous waste.