Author: Naomi Cunningham

Sensible people and the law going bonkers

How sensible is the law when it locks up vulnerable female prisoners with violent men who say they are women?

Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

That would be more reassuring if the law had not already been very bonkers indeed for some years.

The case of double rapist Adam Graham, otherwise known as Isla Bryson, has been hitting the headlines since his conviction on 24 January this year. Graham was initially remanded for sentencing to Cornton Vale women’s prison, before he was moved to a men’s prison in response to a public outcry. How did that come about, and was it a brief anomalous moment of bonkersness before sensible people reverted to being sensible?

Separate prisons for men and women 

Separate establishments or parts of establishments for male and female prisoners have been maintained in the UK since 1823, when the Gaols Act 1823 provided “In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.”  The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):

Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.

The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which supplement the Standard Minimum Rules, lay particular stress on physical and psychological safety at paragraph 9:

In its resolution 61/143 of 19 December 2006 entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender-based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women… The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account.

The current position in domestic law for England and Wales is less definite. It is to be found at rule 12 of the Prison Rules 1999, made under the Prisons Act 1952:

(1) Women prisoners shall normally be kept separate from male prisoners

Interestingly, the Prisons and Young Offenders Institutions Scotland Rules 2011 say:



126.—(1) Female prisoners must not share the same accommodation as male prisoners.

(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.

Despite these provisions, the principle of single-sex prisons has been quietly eroded since men who had had genital “reassignment” surgery started to be imprisoned with women by the 1980s (Biggs, 2020). In 2009, the prison authorities were still holding the line that surgery was a pre-requisite for transfer to a women’s prison.

That was already a significant departure from “people being sensible”. A man does not become a woman by having his testicles removed, nor by having his penis inverted into a surgically-created cavity as a “neo-vagina”; nor by having implants or taking hormones to create the appearance of female breasts. A violent man who has undergone some of those treatments may present less of a threat to women of certain particular kinds of crimes than an unmodified man, but he will retain his advantages of size and strength. Rape is only one of the ways that men terrorise women.

In any event, women’s wish for bodily privacy from men is not solely or even chiefly about demonstrable threat. It is about deep-seated taboo, and in some cases about trauma-induced fear. It is humiliating for a woman to be required to undress in the presence of a man, and for some women it will also be terrifying even if the particular man poses no risk. A woman traumatised by male violence may reasonably be hypervigilant in the presence of any man.

Genital surgery cannot reasonably be expected to make a difference to this. Why would it? Many women will object strongly to being expected to undress in the presence of men with whom they are not intimate. Few of those can be expected to feel any more comfortable undressing in the presence of a man who has had genital surgery. We do not wish to see male genitals in the women’s changing room; but we may well have a wish at least equally strong not to see the site of surgical removal or remodelling of male genitalia. Medical treatment is a private matter between patient and physician. It is not our business whether a man has had genital surgery or not, and we do not want it made our business.

These are considerations to which the sensible people who decided to start moving men into women’s prisons appear to have been oblivious. 

But the law – or at any rate the administration of the law by sensible people – got more bonkers than that, much.

Mark (aka Karen) Jones

In 2009, Mark Jones, a male prisoner who had been granted a GRC but had not yet had genital surgery, brought judicial review proceedings challenging the prison service’s refusal to move him to a women’s prison. NHS policy at the time was to make “living as a woman” for two years a pre-requisite to surgery, and did not recognise “living as a woman” in a men’s prison as sufficient.

Jones’s convictions were for the manslaughter of his boyfriend, and for a terrifying attempted rape of a female stranger. He was evidently difficult to manage in prison. A report from his own expert supported the proposal to transfer him to the female estate on the basis of an expectation of a deterioration in his behaviour if his wishes were thwarted:

[The claimant] needs to control the threatening external world by imposing [his] own order and when this is not possible [he] resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements . . .

. . . As [the claimant’s] desperation to control [his] environment mounts, [he] experiences a heightening degree of narcissism or self-concern. [H]e is increasingly liable to experience aggressive and destructive impulses.  

[emphasis supplied] 

Argument in the case ( B v Secretary of State for Justice [2009] EWHC 2220 (Admin)) focused on Jones’s article 8 rights, and the cost to the prison service of the (possibly extended) period of segregation in a women’s prison which was thought likely to be necessary before he could be allowed to “mix with and form friendships with other women [sic] as she [sic] would choose to do”. 

The closest the court’s reasoning, or any material referred to in the judgment, came to considering the human rights of the women who were to be locked up with a violent, narcissistic and sadistic rapist is to be found in three short passages from the evidence. Mr Spurr, the Chief Operating Officer of the National Offender Management Service referred at paragraph 56 of his statement to a number of factors he said were relevant to the decision, including “concerns over how the female population would react to her [sic] generally, and also specifically if they became aware of her [sic] index offence”.

At paragraph 64, Mr Spurr said:

I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant’s risk to herself [sic], NOMS must also bear in mind the risk she [sic] poses to other prisoners.

Dr Barrett dealt dismissively with any unhappiness that female prisoners might feel about the company they were to be required to keep:

I would say that I suspect that caution will probably lead to her [sic] being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she [sic] is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her [sic] able to cope with the less prolonged, more avoidable, travails of the civilian world.

The interests of the female prisoners who were to be locked up with Jones were not represented, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

The court was persuaded. The judge held that holding Jones in a men’s prison interfered with his personal autonomy as protected by article 8 of the European Convention on Human Rights in a manner going beyond what imprisonment was intended to do, and that the prison service had failed to provide sufficient justification for the interference. He was accordingly transferred to a women’s prison to serve the remainder of his sentence. 

There were only two parties present or represented in court: Jones himself, and the Secretary of State for Justice. The interests of the female prisoners who were to be locked up with Jones were not represented by any interested party or intervener, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

Adam Graham (aka Isla Bryson) and Scottish Prison Service Policy

Anyone still cherishing the idea that “the law is sensible people” might regard the judgment of the court in B as a high-water mark of bonkersness, and look forward to it being swiftly corrected at the next opportunity. They would be disappointed by what happened next.

The Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was adopted in 2014. It says under the heading “Policy key principles”:

The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.

That is a policy under which Mark Jones would have been automatically assigned to women’s prison simply on the strength of his self-identification as female. He would not have been put to the trouble of seeking surgery. 

Adam Graham/Isla Bryson’s initial placement in a women’s prison was wholly consistent with that policy, and should have surprised no-one.

FDJ v Secretary of State for Justice (2021)

The first (and so far only) attempt to persuade the High Court to give some weight to female prisoners’ human rights in deciding where to place male prisoners who identify as women was made in FDJ v Secretary of State for Justice [2021] EWHC 1746 (Admin).

FDJ served a sentence of imprisonment between October 2016 and June 2020, at HMP Bronzefield, a women’s prison operated by Sodexo. She sought judicial review of MOJ policies which allowed male prisoners who had been convicted of sexual or violent offences to be allocated to women’s prisons if they asserted a female gender identity and/or had been granted a GRC.  FDJ gave evidence that she had been sexually assaulted by “J”, a male prisoner who had convictions for serious sexual offences against women. He also had a GRC declaring him to be a woman.

FDJ challenged two prison policies, referred to in the judgment as the “Care and Management Policy” and the “E Wing Policy”. The former included this:

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women.

Section 9 reads:

(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Those words seem to have been interpreted by the prison service as imposing a duty on it to treat a man holding a GRC as if he were a woman (and vice versa).

This betrays a fundamental misunderstanding of section 9, which has a much more limited effect. It confers a status: it deems to be true, once certain conditions are met, something that is not true. It does not purport, in itself, to attribute consequences to the legal fiction it creates except in relation to privacy of information. If it did, the consequences would need to be defined, and supported by a carefully thought-out account of what it is to be “treated as a woman” and in what contexts the law could properly require such treatment; and it would need an enforcement mechanism. In general, after all, where the law makes provision about the different treatment of men and women, it does so not by requiring it, but by prohibiting it. 

In truth, apart from the privacy provisions, the GRA is better understood as an ancillary enactment about the interpretation of other enactments than as the kind of legislation which in itself requires people to do things, or not to do things.

As Choudhury J confirmed in Forstater v CGD [2021] IRLR 706 at para. 97, “for all purposes” at section 9 means “for all legal purposes”. The GRA does not itself, for example, compel anyone to think of a man who holds a GRC as a woman, or to treat him as such for social or dating purposes, or to ignore his true sex when providing him with sex-specific medical treatment or screening, or to give him access to women-only spaces, etc. If and to the extent that section 9 of the GRA confers on a man a positive right to be treated as a woman (or vice versa) it must do so through the medium of some other enactment or common law rule which attaches concrete consequences to a person’s legal status as a man or a woman. The obvious example (according the ruling of the Outer House of the Court of Session in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90) is the Equality Act 2010.

The E Wing Policy considered in FDJ also proceeded on the assumption that any male prisoner who had a GRC must be housed in a female prison unless the wholly exceptional circumstances in which a female prisoner would be held in the male estate applied in his case.

FDJ in her challenge argued that these policies were unlawful because they indirectly discriminated against women contrary to art. 14 of the Convention read with arts. 3 and/or 8, and contrary to section 29 of the Equality Act; and that the prison service, in formulating its policy, had failed to take account of exceptions in the Equality Act permitting discrimination on grounds of both sex and gender reassignment. But she did not take the point that the policy misunderstood the effect of section 9 of the GRA by treating it as in itself conferring positive rights about treatment by other people; on the contrary, her counsel is recorded at para. 68 of the judgment as conceding that it does. (That concession finds some faint support in an obiter remark in Green v Secretary of State for Justice [2021] EWHC 1746 (Admin), para. 68, but the remark is better understood merely as an acknowledgment – foreshadowing the For Women Scotland case – that a GRC deems a person to have changed sex for the purposes of any comparison in a sex discrimination case under the Equality Act.) 

The court proceeded on the basis that paragraphs 26 and 28 of schedule 3 to the Equality Act permitted — but did not require — men and women to be housed in separate prisons. (There is a curiosity here, which is that it is not self-evident that schedule 3, read literally, is applicable at all to the performance of public functions like those of the prison service. But the assumption that schedule 3 was applicable to the allocation and management of prisoners has been made not only by a powerful Divisional Court in FDJ but also by the Court of Appeal in Coll v Secretary of State for Justice [2017] 1 WLR 2093, a case about the more restricted provision of approved premises for the accommodation of female prisoners released on licence than for male prisoners. That being so the point can probably be regarded as settled for all practical purposes.)

FDJ’s argument was that allocating prisoners to the estate corresponding to their gender identity instead of making full use of the schedule 3 permission to hold male and female prisoners in separate establishments had a disproportionately adverse effect on female as compared to male prisoners. That was because male prisoners in female prisons increased the risk of sexual assault to which female prisoners were exposed, whereas female prisoners in male prisons did not (or would not) increase the risk of sexual assault to which male prisoners would be exposed. The Secretary of State was therefore called upon to justify his policy. He could not do so because there were less intrusive measures which he could have taken to care for and manage male prisoners who identified as women.

The Secretary of State argued that the single-sex exceptions in the Equality Act should be used in a manner that is compatible with the art. 8 rights of transgender prisoners, and relied on B v Secretary of State for Justice.

Importantly, FDJ did not challenge the correctness of the decision in B (Mark/Karen Jones’s case), nor did she argue that there should be no men in women’s prisons. She argued instead that the Secretary of state should have struck a different balance between the rights of men who say they are women to be treated as women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.

The court accepted as valid and understandable the fears of female prisoners held with male sex offenders, but declined to interfere with the balance that the prison service policies had struck. Paragraph 83 reads as follows:

The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women’s prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis. 

This, to my mind, is the heart of the matter. By limiting herself to arguing that convicted male sex offenders should be excluded from women’s prisons, FDJ had put herself in an impossible position. If it is accepted that the rights of some men to “live as women” entitle them to be held in women’s prisons, decisions about which men should be admitted, and which should not, become exactly the kind of delicate and sensitive judgements in which the courts will be understandably slow to interfere. 

No men in women’s prisons? 

So was the court right that it was “not possible to argue that the Defendant should have excluded from women’s prisons all transgender women”?   

The schedule 3 exceptions deal with situations in which, for privacy, decency etc, it is necessary to provide services separately for women and men. Even assuming that the FWS2 decision is correct and sex in the Equality Act means sex except where modified by the application of a GRC, those exceptions provide expressly for the exclusion of all men – including men with GRCs – from women’s services or spaces, where circumstances justify it. The Explanatory Note to the Act gives counselling services for victims of rape as an example; prisons too are an obvious case where a blanket rule is likely to be justified.

Despite the existence (and accepted applicability) of those express exceptions, the court in FDJ seems to have assumed – without hearing argument on the point, but perhaps obedient to the earlier judgment in B – that their use could not be defended in relation to prisons. 

No doubt some men with GRCs would like to be treated for all purposes as if they were women, even in those cases where there is a plain necessity to exclude them from something provided specifically for women. Possibly exclusion will cause them upset, increased dysphoria, rage or even anguish. But as the court in FDJ acknowledges at paragraph 76, it is also understandable that women imprisoned with men may suffer acute fear and anxiety. The qualified art. 8 rights of male prisoners who say they are women may be engaged; but so too are the qualified art. 8 rights and the unqualified art. 3 rights of female prisoners.

Even if the art. 3 rights of female prisoners can be disregarded so that the balance needed is simply between the art. 8 rights of female prisoners and those of male prisoners who say they are women, the numbers involved should be noted. Placing one man in a women’s prison in order to give effect to his art. 8 rights will infringe the art. 8 rights of all the women with whom he is imprisoned.

The schedule 3 exceptions

With those points in mind, we can consider paragraphs 26 and 28 of schedule 3 to the Equality Act, and ask whether it really is impossible for the prison service to make use of them: 

Paragraph 26

(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—

(a) a joint service for persons of both sexes would be less effective, and

(b) the limited provision is a proportionate means of achieving a legitimate aim.

Paragraph 28

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

It is clear that in relation to prisons, a “joint service” would be less effective; and that the limited provision – that is, the provision of separate prison accommodation for men and women – is not merely a proportionate means, but the only possible means of achieving the legitimate aim of providing a humane and safe environment for female prisoners, respecting their privacy and dignity, and complying with international standards. That is the reason for the existence of separate men’s and women’s prisons, and it is – necessarily – ample justification for the exclusion from women’s prisons of all male prisoners without GRCs, including those who self-identify as women. 

So far as male prisoners with GRCs are concerned, paragraph 28 applies. Under paragraph 28 the question assumes the prior existence of separate services for persons of each sex and simply asks whether the exclusion of men with GRCs from the women’s service is a proportionate means of achieving a legitimate aim. But once again, and for exactly the same reasons, the exclusion of men with GRCs is in pursuit of the legitimate aim of providing a safe, humane and dignified  environment for female prisoners, and is not merely a proportionate means but the only means of achieving that aim. 

Once the arguments are set out plainly, away from the noise of the thought-quelling chant “trans women are women” and in defiance of the related insistence that we speak and write of men who say they are women as “trans women” and refer to them with female pronouns, the result is clear.

Conclusion

The law in this area has already gone very bonkers indeed. Adam Graham’s initial placement in a women’s prison was not an anomaly, swiftly corrected when it came to light; it was a routine decision in conformity with a policy that had been in place for 9 years. A more forthright challenge to the presence of men in women’s prisons using clear language and centring the human rights of female prisoners cannot come too soon. Let’s hope that this time, the courts will be sensible.

New clause 15A of the Gender Recognition Reform (Scotland) Bill: a chocolate fireguard? 

The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK. 

Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation. 

There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.

If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill. 

At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above. 

 Clause 15A says: 

“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective. 

So this new clause does precisely nothing. 

The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that. 

That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it. 

For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020. 

A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act. 

This problem can be solved in various ways, but clause 15A isn’t one of them. 
______________________

Naomi Cunningham is a barrister specialising in discrimination law.  She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee.  She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.

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.