Author: Naomi Cunningham

SUBMISSION AND COMPLIANCE: risks for Stonewall Champions

Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.

Stonewall is an LGBT charity and lobbying  group that started small, edgy and rebellious in 1989.  It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.

Stonewall’s employer programmes

Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme. 

More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé;  Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.  

It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single one of the top 100 employers on the Workplace Equality Index is also a Diversity Champion.

Qualifying for the Workplace Equality Index 

So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers?  Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”

The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections: 

1. Policies and benefits

2. The employee lifecycle

3. LGBT Employee Network Group 

4. Allies and role models 

5. Senior leadership 

6. Monitoring 

7. Procurement 

8. Community engagement 

9. Clients, customers and service users 

10. Additional work 

Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for.  The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.

Sampling the submission 

Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks: 

Does the organisation have a  policy (or policies) which include the following? Tick all that apply. 

A. Explicit ban on discrimination based on sexual orientation

B. Explicit ban on discrimination based on gender identity and gender expression

C. Explicit ban on bullying & harassment based on sexual orientation

D. Explicit ban on bullying & harassment based gender identity and gender expression

E. None of the above

The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies. 

There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean.  If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it. 

The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.” 

Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.

Question 4.5 asks: 

Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?

The University describes the training: 

A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.

Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.

… 

We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.

This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around. 

There are pages and pages of this stuff.  The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.

Feedback 

One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply.  This sample from section 1 (“Policies and benefits”) is representative: 

[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.

Submission without reservation

You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this: 

  • You pay for lots of Stonewall training. 
  • You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training. 
  • You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way. 
  • Stonewall set you a lengthy open-book examination on how well you’ve done that. 
  • You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc. 
  • Stonewall mark your submission and give you feedback on areas on which you could improve your compliance  with their every demand, very likely involving more Stonewall training. 
  • You do the same again next year. 

It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?  

Why are serious organisations full of serious grown-up professionals willing to submit to these time-consuming indignities?

What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?  

The banner on the “submission portal” says it all, really:

Legal and reputational risks

You might think employers would discern a significant reputational risk – not only from being  associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride. 

But there are concrete legal risks too.

Judicial review of policies 

If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies.  (Though your staff may care; I’ll come to that shortly.)  

But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review.  You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.  

In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court. 

A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance. 

In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.

Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”  

These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be in than the reality of how the law is.

Judicial review of participation in Stonewall’s schemes 

Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make  a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both. 

A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review. 

That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:  

Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk. 

As a public body, we should know what’s going on with the CPS. 

Has Stonewall trained CPS?

In fact, thanks to M Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’  If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.”  Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.

As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:  

Has the organisation done any further work in the past year to improve the working environment for LGBT staff?

The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all  functions, private or public. 

In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion: 

The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation. 

The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.”  Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well. 

In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.

Discrimination claims 

Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.

Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim. 

If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that. 

Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further: 

The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.

Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.  

But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief.  If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.

If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system. They are not entitled to do that: disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)

Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man. 

There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.”  It is the only equality policy the University has which is specific to a single protected characteristic. 

Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff. 

Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status. 

In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women.  And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.  

Workplace health and safety obligations

Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.

Duties to service clients, service users etc.

The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful: 

  • A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
  • A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex. 
  • A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a  new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision. 
  • A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault. 
  • An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.  
  • A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison. 
  • Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that  they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a  school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.  

Conclusion 

Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly. 

If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.

But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm. 

Don’t submit to Stonewall. 

Puberty blockers and parental consent

The decision of the High Court in Bell v & anor v The Tavistock & Portman NHS Foundation Trust & ors [2020] EWHC 3274 (Admin) has given rise to both jubilation and outrage. Detransitioners and their gender critical allies feel vindicated by judicial recognition that treatment of children with puberty blockers is experimental and dangerous; trans activists characterise the decision as an attack on the fundamental rights of all trans people.  

The Court’s decision

On the face of it, given the scope of the decision, both reactions are surprising. The court didn’t actually decide that Keira Bell had been rushed into treatment that she wasn’t able to understand, or order the Tavistock to pay her compensation for the permanent damage to her body caused by the treatment she received. It didn’t even order the Gender Identity Development Service (GIDS) at the Tavistock to stop treating children with puberty-blockers, or to change the information it gave them before it started treatment. What it decided was that teenagers under 16 will very rarely have capacity to give informed consent to treatment with puberty blockers, and children of 13 and under almost never. And that even in the case of young persons of 16 or 17, it may be necessary to seek court authorisation to proceed with treatment. 

But children often receive medical treatment for which they lack capacity to give their own informed consent. An infant needing an operation can’t consent: its parents typically consent on its behalf. A child of primary school age may be able to argue more fluently than its parents would always wish, but still may not be equipped to weigh up the pros and cons of serious medical treatments. So what’s the big deal, if children lack capacity to consent to puberty blockers? Why can’t their parents just consent on their behalf, in the usual way?

The Tavistock’s policy

Paragraph 47 of the judgment quotes from a letter sent by the Tavistock’s lawyers in response to the initial threat of litigation: 

Although the general law would permit parent(s) to consent on behalf of their child, GIDS has never administered, nor can it conceive of any situation where it would be appropriate to administer blockers on a patient without their consent.

In context, it is clear that they are not saying merely they wouldn’t administer blockers to a child who didn’t want them: but that they wouldn’t administer blockers except to a child who had capacity to consent on his or her own behalf to the treatment. In other words, the Tavistock’s own policy was (and is) that parental consent isn’t enough: the informed, effective consent of the child patient is required. That’s why the court’s decision that children will very rarely be able to give such consent matters so much: if the Tavistock won’t act on the basis of parental consent alone, then children won’t be treated unless either they can themselves validly consent, or a court decides that the treatment is in their best interests. 

What’s special about treatment with puberty blockers?

The question I find interesting here isn’t really a legal question. It is this: what is it that’s special about treatment with puberty blockers that makes the Tavistock think that parental consent isn’t good enough? If a child needs a vaccination to reduce the risk of a potentially serious childhood disease, parental consent is good enough. If a child needs a filling to deal with tooth decay, or an extraction to deal with an overcrowded mouth, the same. If a child needs surgery to pin a broken bone, the same again. 

Parental consent is good enough for most medical treatment because its necessity or desirability can be established by objective evidence. Tooth decay and broken bones can be seen with an x-ray; the risks of mumps, measles etc. (and the benefits of vaccination) are well-established by epidemiology. But if a child with the body of a girl says she is so sure that she is really a boy that she wants to be treated with puberty blockers to ensure that she doesn’t mature physically as a woman, there no blood test, no visible symptom, no scan, no x-ray that can confirm her condition. How are parents, teachers, therapists and doctors to know whether she is truly trans (assuming for the purposes of argument that there is such a thing – or if even if there isn’t, at least so intractably dysphoric that radical body modification offers her the best hope of a flourishing life); or temporarily caught up in a teenage craze; or expressing distress in response to childhood abuse, homophobic bullying at school, or a traumatic bereavement or abandonment, or the pervasive sexism and misogyny of the society in which she is growing up?

One might think that these were the kinds of difficult questions with which clinicians would grapple earnestly before agreeing to set children on a path to medical transition and lifelong patienthood. What’s going on here? What are the causes of this child’s dysphoria? What are her chances of growing out of it with natural puberty? If treated, what are the chances that she will later regret the treatment? 

Astonishingly, one would be wrong. Even more astonishingly, it seems that the clinicians who have guided the development of the GIDS would not even regard these as valid questions. Bernadette Wren, Consultant Clinical Psychologist at the GIDS until her retirement in 2020, posed herself these questions in a 2014 paper:   

Can ‘postmodern’ ideas about the non-fixity and instability of gender serve the perplexed clinician? Can we forego the grounding of our ideas in demonstrable certainties? Operating with a postmodern notion of gender, can the clinician justify irreversible physical intervention?

Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents, Feminism & Psychology 2014, Vol. 24(2) 271–291

In the abstract of the same paper, she writes: 

In particular, how do we justify supporting trans youngsters to move towards treatment involving irreversible physical change, while ascribing to a highly tentative and provisional account of how we come to identify and live as gendered? I conclude that the meaning of trans rests on no demonstrable foundational truths but is constantly being shaped and re-shaped in our social world.  

[emphasis supplied] 

This is consistent with Wren’s understanding of postmodernism, of which she says: 

It argues that we cannot properly speak of objective and universal truths because it recognises that we can never stand outside the conceptual frameworks we are trying to explain.

In a later article Debate: You can’t take politics out of the debate on gender-diverse children, Wren candidly admits that there is little reliable evidence to draw on when making decisions about the treatment of gender dysphoric children: 

In this field of practice… studies are still few and limited in scope, at times contradictory or inconclusive on key questions. Professionals and families must navigate the options with limited reassurance about how to proceed in the face of changing and challengeable clinical evidence. 

Child and Adolescent Mental Health 25, No.1, 2020, pp.40-42

But that does not seem to her to be a reason not to give young people what they ask for: 

[U]nder UK law, we have increasingly come to think that enabling young people to experience some forms of self-determining freedom is a social good (Alderson, 2017), an idea interlinked with the thesis that a measure of authentic self-knowledge can be achieved, even by children and adolescents. This is the permissive culture in which young people – including those who are gender diverse – may be allowed considerable freedom to make their own mistakes. Besides, young people today are entering an era of medical care when intervention on and into the body becomes increasingly commonplace. Twenty-first century medicine offers treatments that are supportive of identity projects as well as responsive to pathology. 

[emphasis supplied] 

Alarming though this is, it does at least make perfect sense of the GIDS’ unwillingness to accept parental consent as a substitute for the young person’s consent when treating children or adolescents with puberty-blockers: to do so would be fundamentally at odds with the philosophical underpinnings of the service. Parental consent would be rendered acceptable by a firm evidence base for the treatment proposed. But puberty blockers are not provided because there is convincing clinical evidence that they are needed (or even likely) to alleviate distressing symptoms or effect a full or partial cure for a pathology: on the contrary, it is admitted that the evidence base for treatment is thin tending to non-existent. The conclusion to the 2014 article that “the meaning of trans rests on no demonstrable foundational truths” goes further, suggesting that even a search for such evidence would be misconceived.  Instead, treatment is provided because children and young people – who should be enabled to experience self-determining freedom, including the freedom to make their own mistakes – ask for it. 

No evidence of benefit

It makes an alarming kind of sense of something else, too. The court in Bell repeatedly expressed surprise at the Tavistock’s inability to provide evidence about the effects and outcomes of treatment with puberty blockers, noting – in particular – at paragraphs 23 and 24 that it hadn’t been provided with the results of a research study started some nine years earlier at the Tavistock, which it had requested but been told was unavailable because one of its authors had yet to respond to issues raised in the peer review process. On the face of things, that was quite extraordinary: the study was centrally relevant to the matters discussed in the judicial review, and even if it was still going through the lengthy process of peer-review and hadn’t been finalised for publication, it undoubtedly existed in a near-final form which could have been provided to the court had the Tavistock chosen to provide it.  (It was finally published on the day the High Court’s judgment was handed down.)

But if the service was run by postmodernist-leaning clinicians who regarded “truth claims” with suspicion and saw their task not as relieving the suffering of patients with distressing pathologies, but instead as facilitating their young clients in the pursuit of identity projects, what use would they have for clinical evidence? 

Friendly fire from the Good Law Project

The Good Law Project on its crowd-funding page Legal Defence Fund for Transgender Lives announces a proposed challenge to the Tavistock’s policy:

The Tavistock will be invited – or sought to be compelled – to review its position in relation to whether to accept parental consent. In practice success on this action would remove, in many or most cases, the practical barrier to reatment posed by the Bell decision.

If the Good Law Project gets the High Court’s permission to pursue this, the likely result will be that the Tavistock is forced to explain – in detail, and in public – the reasons why it “cannot conceive of any situation in which it would be appropriate to to administer blockers on a patient without their consent.” That will shine further light on the absence of any convincing evidential basis for these treatments, and on the startling philosophical underpinnings of the GIDS’ practice. It promises to be a bruising encounter for both parties.

With thanks to Heather Brunskell-Evans’ Transgender and Body Politics, Spinifex 2020 for alerting me to Bernadette Wren’s writing.

The Curious Incident of the Lawyers Who Didn’t Argue

On 13 October, I published a short piece here entitled I’d like to have an argument, please. It was an invitation to any practising or academic lawyer who disagrees with my “gender critical” stance on the interaction of trans rights and women’s rights to enter into a relaxed and mutually respectful email dialogue with me, exploring our disagreement with a view to publication in due course. 

Public statements decrying the toxicity of this debate are becoming routine, and there is some real justification for those laments. But there is a debate that needs to be had: far-reaching changes to the law are sought, and opposed by gender critical feminists as creating dangerous and undesirable incursions into women’s rights. We can’t find out who is right by silencing one side or the other as bigots: we need to test the arguments. 

Lawyers, in general, are an argumentative crew – in court, in their workplaces, and over their dinner tables. In general you might think that robust but civilised public argument as a way of testing ideas wouldn’t be a hard sell to them. It is after all our thing. 

But not on this subject, apparently. In my own circle, friends – including lawyers – who think I am wrong about this simply won’t talk to me about it. 

So I issued the invitation publicly. The Legal Feminist Twitter account tweeted out I’d like to have an argument, please to its 16.3K followers several times over the days that followed its publication. I’ve emailed the link to colleagues whom I know or believe to differ from me on this, to ask them if they might engage, or know of anyone else who might. The Discrimination Law Association emailed the invitation to all its members. 

The  Employment Law Bar Association declined my request for help finding a candidate on the basis that they don’t “tend to publicise any individual members’ projects.” The Employment Lawyers’ Association decided not even to consider my request until after a working group on a related subject has completed its task. 

Finally, from the Legal Feminist Twitter account, I tweeted to several of the big beasts of legal Twitter to ask them if they would amplify the message. With one honourable exception, they neither gave me the amplification I sought nor politely declined to do so; they just ignored me. 

The response to my invitation – which has been widely circulated notwithstanding the failure of many of my efforts to get it amplified – has been a deafening silence. 

This is a strategy feminists have met before. We say it politely; we are ignored. We say it again; we are ignored. We say it insistently; we are ignored. We start to get a bit cross; we are ignored. We yell. “Aha,” they say; “Bad faith! We can’t be expected to engage with you – you’re rude and screechy!” It’s a strategy men have used to sideline women since time immemorial. “TERF” is the new “harridan.” 

One young barrister (whom I shall call Andrea) from a prominent human rights Chambers did respond. Since she is the only lawyer who has even done me the courtesy of trying to  explain why she considers this project doomed, I’ll address her points in some detail.

Andrea compared my invitation to a picture of a man sitting behind a table with a banner reading “Male privilege is a myth. Change my mind,” and followed up:

I’m not really sure you can argue for freedom of debate, while dictating to the other side of that debate that they are not allowed to hold or express certain views you find distasteful…

This was peculiar, because there was nothing in my invitation that sought to dictate anything of the sort. On the contrary: much of the point of the invitation is to push back against widespread attempts – which have already met with some success, in particular in an employment tribunal’s decision (pending appeal) in Forstater v CGD – to place the views I hold beyond the limits of what it is permissible to say or even think. 

When I emailed Andrea a first draft of this article for comment, she explained: 

I read the whole premise of your introduction as being that the discussion needed to be of an appropriate and agreeable tone, meaning (I assumed) that if someone said the GC view was transphobic that would immediately be rejected as ‘not playing by the rules’ of the conversational contract. That is why I consider the invitation to be far from neutral, but to involve you dictating to the other side of the debate what they are allowed to express. Apparently, it is not “OK” in a civilised debate for me to say I believe a view to be transphobic. That doesn’t sound like open and fair discussion to me.

That didn’t make matters any clearer. I had said nothing to suggest that a discussion of whether the GC view was transphobic was off-limits: on the contrary, that is exactly the kind of question I was hoping to discuss. Andrea had read the call for respectful debate as in itself necessarily implying that I would seek to exclude certain valid questions. My original invitation had ended:  

I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.

Andrea also took exception to the fact that no trans person was to be involved in the debate. When I countered that there were trans lawyers who could have come forward, she said that she wholly understood why a trans person would not want to have this discussion. This is a splendid bind: I must not have a public debate with one other person that touches on trans rights if the other person is not trans; but at the same time, I can’t reasonably expect any trans person to be willing to debate with me. Gotcha. 

But even without the bind, it would be a bad point. It would be unsatisfactory if a public body or a charity or a Parliamentary committee were to discuss these matters without involving all stakeholders, but (as I’d have thought was tolerably obvious) I am none of those things. 

Andrea added: 

[T]here is something of a generational divide on this, meaning it is likely to be a junior barrister in debate with a senior barrister. This is professionally risky for someone trying to establish themselves at the bar in circumstances where potential leaders in cases are likely to disagree with you…

I am fairly senior, at a little over 25 years’ call, and reasonably established; I’m lucky to be a member of a good set of chambers. But if I’m an object of terror to any junior member of the Bar, they have chosen the wrong profession. We all have to be willing to disagree publicly and robustly with more senior members of the Bar on a regular basis; and – newsflash – there are barristers much scarier than me out there. Or if the point is that it might be career-limiting to take the gender uncritical position in public, that sits oddly with the readiness of so many young lawyers to do exactly that on Twitter. 

In any case, although there is probably some correlation between GC feminism and maturity, there are plenty of senior lawyers who disagree with me on the subject. And as I had already pointed out: the exercise actually represents a much lower risk for a junior lawyer who stands to win “plucky beginner” credit whatever the outcome of the debate than for a prominent trans ally with an established reputation. Years ago, I worked at the Free Representation Unit, supporting volunteers at the very beginning of their careers in providing pro bono representation in employment tribunals. In those days, plucky beginners willing to take on senior juniors or even QCs were never hard to find. I doubt that’s changed. 

So what’s going on here? Why won’t anyone have this conversation with me? 

If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

Is it that gender critical views are so extreme or unusual that they don’t merit being taken seriously enough for debate? Far from it; they are mainstream. I used to amuse myself from time to time, at social events full of lawyers, by eliciting a belief in the biological reality of sex from senior, and socially conservative, male colleagues, and then acquainting them – to their bemusement – with the fact that this meant they were now officially Trans Exclusionary Radical Feminists. 

Is it me? Am I just too terrifying an opponent to take on? I really don’t think so. My professional life would be one long pushover if that were so.

Or is it that lawyers are too peaceable, modest and publicity-shy to want to conduct a public argument on a topical subject? Really? 

In answer to my first draft, Andrea said: “It does not indicate anything about the strength or credibility of a person’s views that they choose not to engage.” 

That may be true of any given individual: this one is too emotionally engaged to relish a public debate; another simply doesn’t care enough about the issues; the next lacks capacity this month; the next but one genuinely believes that these are matters that it is indecent to debate; yet another would have loved to, and clears his throat to begin, but then recalls that he hasn’t cleaned behind his radiators in ages – and so on. 

But it’s not one particular UK-based gender uncritical lawyer who has declined this debate, nor even a handful; it’s all the hundreds or more likely thousands who are aware of the invitation. There’s some force in play here more systematic than a series of unrelated impediments. 

I’m driven to the conclusion that even those who espouse the non-GC view vociferously – whether inTwitter spats, blog posts or lengthy, heavily-footnoted journal articles –  know at some level that their position is indefensible. 

I’m a decent enough lawyer, but there are plenty better. I know what it is to be intimidated by the intellectual fire-power on the other side. Nevertheless I wholeheartedly relish the prospect of this debate: I am fearless of anyone, however distinguished or brilliant they may be, because I am so sure of my ground. The opposing positions are so riddled with logical fallacies, circular arguments and flat-out idiocies that none of my gender uncritical colleagues – not one single one of them – has the stomach for  trying to defend them publicly in friendly rational dialogue with me. Moreover, the big beasts of legal Twitter whom I approached seemed not merely not to want to take part in the argument themselves: they didn’t want to do anything to help it to take place.

There’s a risk in saying that. “Aha!” they will say, “This proves what we suspected all along: you’re not approaching this in good faith. You don’t want the amiable respectful conversation you say you want at all – you just want someone to jeer at and score points off so you can look clever!” 

So let’s look that one straight in the eye. Of course I like looking clever in public. Who doesn’t? Of course I like winning arguments. What lawyer doesn’t? Of course I am convinced that I am right – or I wouldn’t be trying to pick this fight. And on this subject, it is true that I can’t at present imagine how I could be persuaded otherwise. But I could be wrong. Believe me, I know that I am fallible. My factual beliefs have been changed by evidence before now, and my opinions by persuasive argument – and I sincerely hope they will be again. And I promise you this from the bottom of my heart. If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

If your argument is nonsense from beginning to end, #NoDebate is indeed your safest strategy. It’s an intellectually dishonest strategy that does our profession no credit at all. 

Am I wrong? Well, the offer still stands.   

This piece was originally published in The Lawyer on 23 November 2020.

“I’d like to have an argument, please”

Various of the great and the good (Keir Starmer for one, and David Isaac for another) have expressed dismay over the level of heat and unpleasantness in the ongoing debate over trans rights and how – or whether – they conflict with women’s rights.

I share that dismay. It does seem to be difficult to get a civilised conversation going on this subject.

It’s a subject I find interesting. I have read a lot about it, discussed it with friends and colleagues, thought a lot about it. My views have evolved over the last few years. My position – as anyone who has read anything I’ve written on this blog will know – is now unmistakably “gender critical.”

I have plenty of people to talk to about all this: the rest of the Legal Feminist team are a wonderful bunch – clever, funny, well-informed, brave and diverse, and it’s been a joy to get to know them and count them friends. And they have put me in touch with other people it’s been a privilege to interact with. The gender critical bubble is a lovely friendly supportive thing.

But something’s missing… damn it, I’m a lawyer. I do like a good argument! But also, I genuinely want to understand the opposing position.

I have been trying on and off over the last few years to persuade various lawyers – friends and/or colleagues – who are on the other side of this debate to engage with me on it. To tell me why I’m wrong, so that I know what I’m up against; so that their ideas and mine can be tested by robust friendly argument.

It’s not usually difficult to persuade lawyers into an argument. Indeed, the problem is usually the opposite one (try getting a bunch of barristers to agree on a new Chambers logo, for instance, and you’ll see what I mean). But on this issue, all the lawyers I know are strangely reticent. I’ve emailed friends and said “I really wish you’d engage with me on this – can’t you tell my why I’m wrong?” I’ve tried friendly approaches to colleagues, and lawyers on the other side of this debate I vaguely know, and said “How about a private email debate, in strict confidence until and unless we both agree to publish?” No takers.

So I’m putting it out here instead. Will a practising or academic lawyer on the other side of the debate agree to discuss this with me? What I’m proposing is an email exchange, initially in private and with no particular urgency – because what I want to achieve is so far as possible a friendly relaxed dialogue. But I propose, too, that we should agree at the outset that at the end of an agreed period – say a year? – either of us should be free to publish the exchange.

Obviously we each take a risk in that. It’s possible that our respective bubbles will each be sure that we have “won” the debate, and both of us will emerge from it claiming (or even if we are too polite to claim, anyway sensing) “victory.”

But it’s also possible that my arguments or yours are reduced to rubble. I’m willing to take that risk. Are you?

It’s possible that my arguments or yours will be reduced to rubble, in public. I’m willing to take that risk. Are you?

If you’re willing to play, please identify yourself (real name please, and a link to a professional profile) in a comment. If there’s more than one offer, I suppose I’ll have to work out how to make a choice, but at any rate I promise I won’t aim to choose the least formidable foe. I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.



Lawyers speak up for the biological reality of sex

This statement was published at Unherd on Friday 25 September 2020. If you are a UK solicitor or barrister or an academic with substantial connections to the UK and would like to add your name, please get in touch.

Proposals to amend the Gender Recognition Act to bring in self-ID have now been formally dropped. But self-ID is being widely implemented in practice by public and private bodies, and any questioning of such policies is increasingly framed as hateful; see for example the Liberal Democrats’ definition of transphobia, published last Saturday.

We are lawyers and legal academics. Some of us specialise in discrimination law; all of us are personally opposed to arbitrary discrimination on grounds of sex, race, sexual orientation, pregnancy or maternity, disability, age, marital status, gender reassignment or religion or belief. We believe that all people should be treated with dignity and respect, and should be able to live their lives free from unlawful discrimination, abuse or harassment.

We also believe that sex is biological, and (in humans) immutable: we do not believe that it is possible for a human being literally to change sex. We think it self-evident that biological sex has material consequences. We think there are circumstances in which it is necessary to draw distinctions between (natal) women and trans women.

We are surprised that any of this needs saying. But in the face of escalating efforts to make these unremarkable beliefs a matter for shame and secrecy — or loss of livelihood, party discipline, public or even judicial opprobrium — we wish to make it public that they are our beliefs.

Signed by:

Prof Allessandra Asteriti, Jessica Atkinson, Pippa Banham, Dr Ruthanna Barnett, Helen Bennett, Karen Bevilacqua, Susan Bruce, Rebecca Bull, Thomas Chacko, Naomi Cunningham, Peter Daly, Joanne Deveney, Deborah Evans, Eileen Fingleton, Rosalind Fitzgerald, Prof Rosa Freedman, Charlotte Godber, Clare Gould, Caroline Gutteridge, Victoria Hewson, Francis Hoar, Rachel Horman-Brown, Deborah Hummerstone, Carol Jackson, Karen Jackson, Amanda Jones, Elizabeth Kelsey, Adam King, Donal Lawler, Belinda Lester, Clare Lowes, Audrey Ludwig, Lucy Masoud, Tessa McInnes, Emma McNulty, James Mendelsohn, John AP Moir, Adrienne Morgan, Barbara Muldoon, Simon Myerson QC, Anthea Nelson, Helen Nettleship, Maureen O’Hara, Adam Ohringer, Ros Olleson, Clare Page, Anya Palmer, Sarah Phillimore, Tim Pitt-Payne QC, Dr Hannah Quirk, Prof Peter Ramsay, Barbara Rich, Rachel Rowles Davis, Chris Sheridan, Angela Smith, Amy Stroud, Emma Stuart King, Paris Theodorou, Elizabeth Todd, Harry Trusted, Catherine Urquhart, Nina Vallins, Merry van Woodenberg, Janette Wand, Emily Watson, Anna Whetham, Prof Robert Wintemute, Gudrun Young 

The beliefs set out in this statement are our individual beliefs.

Troubling with Butler

I hadn’t read any Judith Butler until a couple of days ago – partly I think on the back of an unexamined assumption that I wasn’t clever enough.

But then a friend with whom I was trying to pick an amiable fight about women’s rights and trans rights told me that Butler’s interview in last Tuesday’s New Statesman encapsulated their views, and sent me a link. So I took a deep breath and read it.  This blog post is a slightly edited version of the comments I sent in response. (Sam Leith has done a more erudite job over at Unherd.) 

 __________________________________________

I’m going to quote bits from the interview, followed in each case by my comments, and focusing on the passages that I find most questionable.  To some extent I’m cherry-picking, but I think I quote enough of the article to give a fair representation of what she is saying.

I want to first question whether trans-exclusionary feminists are really the same as mainstream feminists. If you are right to identify the one with the other, then a feminist position opposing transphobia is a marginal position.

She sets up an opposition here between “trans-exclusionary feminists” and “a feminist position opposing transphobia.” But that assumes – without troubling to prove – a proposition that neither I nor any other GC feminist I’ve ever spoken to would accept: that not accepting that trans women are literally women is necessarily transphobic.  All the GC feminists I know oppose transphobia.

I think this may be wrong. My wager is that most feminists support trans rights…

Yes – including me and all the GC feminists I know (which is quite a lot).

… and oppose all forms of transphobia. 

Yes to this too, so long as you give “transphobia” its common sense meaning of fear of and/or hostility to trans people. But I detect an expanded meaning in her “all forms” to take any factual disagreement about the nature or best treatment of gender dysphoria, or the variety of phenomena that fall under the ‘trans umbrella.’ If it’s transphobic not to believe that trans women are literally women, then yes – guilty as charged. I don’t believe that.

So I find it worrisome that suddenly the trans-exclusionary radical feminist position is understood as commonly accepted or even mainstream. I think it is actually a fringe movement that is seeking to speak in the name of the mainstream, and that our responsibility is to refuse to let that happen. 

What is this ‘trans exclusionary radical feminist position’? She seems to have added transphobia into the mix without defining it. This is a straw man. I’m sure there are some  feminists who are properly transphobic, but they are indeed fringe. I don’t know one.

…[W]e can see that a domain of fantasy is at work, one which reflects more about the feminist who has such a fear than any actually existing situation in trans life. The feminist who holds such a view presumes that the penis does define the person, and that anyone with a penis would identify as a woman for the purposes of entering such changing rooms and posing a threat to the women inside. It assumes that the penis is the threat, or that any person who has a penis who identifies as a woman is engaging in a base, deceitful, and harmful form of disguise. This is a rich fantasy, and one that comes from powerful fears, but it does not describe a social reality…

In other words, anyone who thinks that it is dangerous to let male-bodied people self-identify into women-only spaces is guilty of a transphobic assumption that all trans women are sex-offending ‘cis’ males in disguise, and their only purpose in entering women’s spaces is to offend. This is a familiar move in the debate: “If you won’t let me into the ladies’ it means you think that because I’m trans I must be a perv! Transphobe!”

But that misses the point.   Sorry, I’m going to rant a bit here.

The point is male violence, especially but not exclusively male sexual violence. We don’t want to exclude trans women from the spaces where we are undressed and vulnerable because they are trans, but because they are biologically male. They are members of the half of humanity that poses a far greater threat to women than the other half.

We want to exclude males because we are afraid of them. And we are right to be afraid of them. We don’t want to exclude trans women because we think they are more likely than any other male-bodied person to be violent offenders; but because there is no reason to think they are any less likely to be violent offenders. Men are unwelcome in women-only spaces not because we think all men are sex offenders, but because we know that almost all sex offenders are men.  

And remember that we are not just spontaneously afraid! We are taught from early childhood that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence; with the barely-concealed message that it’s our fault if we fail. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm. And we learn the hard way that these fears that have been deliberately inculcated in us are justified. We are followed, leered at, flashed, groped, cat-called; and that’s those of us who get off lightly. Every woman has stories of male abuse.

We are systematically trained in fear.

And then we are told that we must lay aside, at a moment’s notice, the fears we have so obediently learned as soon as a person with a male body asserts a female identity.

Does this give you any insight into why we are so angry?

Let me make it even plainer. There is an attempt to force male bodies into female spaces where they are not welcome; and when we say “no,” that is met with rage, entitlement, abuse and threats of violence  – attempts to overbear our consent by force. There are unmistakable echoes of rape. When it comes to attempts to force women who have asked for a female health care provider to accept a trans woman to undertake an intimate procedure, the echoes become deafening. 

I am not aware that terf is used as a slur.

I find it difficult to forgive this. Is JB really unaware of the prevalence of abuse like “die in a fire, TERF scum,” “punch a TERF,” and (much) worse?    

I wonder what name self-declared feminists who wish to exclude trans women from women’s spaces would be called? If they do favour exclusion, why not call them exclusionary? If they understand themselves as belonging to that strain of radical feminism that opposes gender reassignment, why not call them radical feminists? 

That strain of radical feminism that does what? Caution about the ‘only affirm’ approach, especially in relation to children, for sure; and, speaking for myself, vehement and anguished opposition to treating unhappy children with puberty blockers. But opposition to gender reassignment per se? I’m not aware that that’s a thing at all.

My only regret is that there was a movement of radical sexual freedom that once travelled under the name of radical feminism, but it has sadly morphed into a campaign to pathologise trans and gender non-conforming peoples. My sense is that we have to renew the feminist commitment to gender equality and gender freedom in order to affirm the complexity of gendered lives as they are currently being lived.

Sweeping up “trans and gender non-conforming people” together like this is odd. I was gender non-conforming as a child, and in many ways I still am (as are many GC feminists). I don’t do cosmetics, or heels; I don’t own a hair-dryer; I’ve barely worn a skirt this millennium; I’ve always worn my hair short. I think femininity is a tedious time-consuming performance, and honestly I can’t be bothered.

And where anyway is the campaign to pathologise trans people? Every GC feminist I know wants trans people to live lives free of discrimination.

But I’d go further. Isn’t this projection? Who is really doing the “pathologising” here? Those of us who say “Dress how you like, follow your interests, you don’t have to fit into any set of stereotypes that are uncomfortable for you”? Or the people who want to treat gender non-conformity in children with powerful cancer drugs? The clinicians who would try to understand and ease the psychological distress of gender dysphoria and help the sufferer to live at peace in the body they have – or those who proceed direct to the conclusion that the body is wrong and must be fixed (“converted,” you might reasonably say) with surgery and hormone treatment?  

… Feminism has always been committed to the proposition that the social meanings of what it is to be a man or a woman are not yet settled.  

Well – in the sense that we don’t accept that being female (or male) should be allowed to limit anyone’s choices of career, interests, dress etc.  We tend not to think that sex should have much in the way of “social meanings” (i.e. gender) at all.

… It would be a disaster for feminism to return either to a strictly biological understanding of gender or to reduce social conduct to a body part ….

This is very confused. Gender, as I understand the word – and as I thought most educated people understood it – is the social performance. So no, I don’t have a biological understanding of gender; that would be a contradiction in terms. And who wants to reduce social conduct to a body part? No feminist I know. We don’t advocate a strictly biological understanding of gender. We want to abolish gender! We think it’s a set of regressive stereotypes.

… or to impose fearful fantasies, their own anxieties, on trans women…   

I’ve already ranted about this. “Fearful fantasies” is infuriating, though: those very fears that have been drummed into us all our lives.   

Their abiding and very real sense of gender ought to be recognised socially and publicly as a relatively simple matter of according another human dignity.

Well, up to a point: we can acknowledge and respect trans people’s desire to be treated for most purposes as if they were the sex they identify into. But there are limits to that, rightly enshrined in existing law, which are necessary for the privacy, dignity and safety of women and girls. 

The trans-exclusionary radical feminist position attacks the dignity of trans people. 

I can’t help noticing that she doesn’t explain how. Is it an attack on the dignity of a trans woman not to believe that she is literally a woman? If so, then I must plead guilty – because I do not believe that.  But do I need to share people’s beliefs in order to treat them with respect?  Is it an attack on the dignity of Catholics that I don’t believe that the consecrated host is literally the body of Christ? If not, why is this different?

As I remember the argument in Gender Trouble (written more than 30 years ago), the point was rather different. First, one does not have to be a woman to be a feminist…

I agree, though I accept that not all feminists do.

… and we should not confuse the categories.

I can get behind this. Let’s not confuse the categories.

Men who are feminists, non-binary and trans people who are feminists, are part of the movement if they hold to the basic propositions of freedom and equality that are part of any feminist political struggle. When laws and social policies represent women, they make tacit decisions about who counts as a woman, and very often make presuppositions about what a woman is. We have seen this in the domain of reproductive rights. So the question I was asking then is: do we need to have a settled idea of women, or of any gender, in order to advance feminist goals?  

Do we have to have a settled idea of what a fish is to set up a fish and chip shop? I would say yes. If a fish and chip shop sells nothing but Hello Kitty pencil cases, its customers will be confused, and disappointed.

Q: What do you have to say about violent or abusive language used online against people like JK Rowling?

I am against online abuse of all kinds. I confess to being perplexed by the fact that you point out the abuse levelled against JK Rowling, but you do not cite the abuse against trans people and their allies that happens online and in person. 

I’m not aware of any significant level of abuse against trans people and their allies by feminists – certainly nothing remotely approaching the abuse that was directed at JKR. Are you? Or is she talking about abuse of trans women by men? Because if so, to suggest by that means there is “abuse on both sides” in this way is fancy footwork, to put it mildly.

I disagree with JK Rowling’s view on trans people, but I do not think she should suffer harassment and threats. Let us also remember, though, the threats against trans people in places like Brazil, the harassment of trans people in the streets and on the job in places like Poland and Romania – or indeed right here in the US. 

She does indeed seem to be speaking of harassment of trans women by violent men!

So if we are going to object to harassment and threats, as we surely should, we should also make sure we have a large picture of where that is happening, who is most profoundly affected, and whether it is tolerated by those who should be opposing it. It won’t do to say that threats against some people are tolerable but against others are intolerable.

I don’t think anyone has said that. Have they? No, scratch that – plenty of people have said threats (and violence) against ‘TERFs’ are tolerable, because TERFs are as bad as Nazis (etc.) I can provide examples if need be, but I’m sure you know this is true. Can you think of any examples of GC feminists saying that threats against trans people are ok?

JB: … If trans-exclusionary radical feminists understood themselves as sharing a world with trans people, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more trans-exclusionary radical feminists. But feminism would surely survive as a coalitional practice and vision of solidarity. 

If Hello Kitty exclusionary fish and chip shops understood themselves to be sharing a world with Hello Kitty enthusiasts, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more Hello Kitty exclusionary fish and chip shops. But this would be awkward, because if you actually wanted fish and chips, all you’d be able to get would be Hello Kitty pencil cases. Back in the real world, fish and chip shops sell fish and chips, and feminists campaign for the rights of women.

It is painful to see that Trump’s position that gender should be defined by biological sex, and that the evangelical and right-wing Catholic effort to purge “gender” from education and public policy accords with the trans-exclusionary radical feminists’ return to biological essentialism. It is a sad day when some feminists promote the anti-gender ideology position of the most reactionary forces in our society.

This is just “nasty people agree with you so you must be wrong.” I don’t think it merits a reply, do you?

JB: I suppose a debate, were it possible, would have to reconsider the ways in which the medical determination of sex functions in relation to the lived and historical reality of gender. 

Eh? The “medical determination of sex”?

Biological sex is a binary like life/death is a binary. There are very, very rare cases (of both) that may on some measures be said to be borderline, and where you might actually need a medical determination – and even where medics might disagree. But in the vast majority of cases, the biological sex of a human being is very readily determined.Try this thought-experiment: imagine you took a ward of newborn babies, and gave the task of sexing them to a doctor and a five year old child.  In how many cases do you think their conclusions would differ? (Geese, in my experience, are more difficult: I can’t tell with certainty until they either start laying eggs or shagging their sisters, but to be honest at that point it’s pretty clear even with geese.)

I had gathered a daunting impression of Judith Butler as an intellectual heavyweight. That was before I read this interview; I won’t trouble with her again.

‘Trans customers: A guide for door supervisors’

This guidance document produced by the Security Industry Authority and published on the Home Office website in October 2018 has recently been publicised by @ripx4nutmeg.

There’s already an excellent thread taking it apart here, so I’m mainly adding my voice to points already well made elsewhere. I’m going to do that in the form of a series of quotes from the document, followed by my comment.

It has been written in consultation with trans people and groups as well as security industry operatives.

Comment There is no mention of consultation with any group representing the interests of women.

Take at face value what a reasonable person is telling you about what they need and who they are.

Comment How do you tell whether a particular person is reasonable? If someone who is obviously a man tells you he is a woman, does that give you any clue?

Don’t expect a trans person to look or sound a particular way.

Comment Ah, apparently not. This seems to mean – and certainly may be read as meaning – that trans people need not make any concessions to dressing as or looking like members of the opposite sex in order to claim, irrefutably, to be trans. So if a large muscular man dressed in masculine clothing and wearing a beard tells you that he is in fact a woman, the previous quote tells you that you should take what he tells you at face value.

Allow the customer to choose whether they want to be searched by a male or female member of staff.

Comment Think a bit about what this means. There are no rights without corresponding duties, so if your customers have a right to be searched by a male or female member of staff, then your staff must have a duty to perform those searches. If you’re a business owner, you’d do well to take employment law advice before complying with this guidance. You may risk indirect discrimination, sexual harassment or constructive dismissal claims from your female employees if you require them to search any male customer who states a preference to be searched by female staff.

If a trans person says that a particular toilet is appropriate for them, then that is the appropriate toilet for them.

Comment Business owners should take legal advice before complying with this guidance, too. If your signage indicates separate male and female toilets, you are representing to your female customers that the female toilets will only be used by other women. That may be essential to their feeling safe and/or comfortable using those toilets. Women being in general substantially  more vulnerable to male violence than vice versa, a woman who is upset – or made to feel that she can’t use your services at all – because you have ceased to provide female-only toilets may have an indirect discrimination claim against you. If she has suffered harm – e.g. voyeurism or an assault – because of your policy, she may have other claims against you.

It is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment.

Comment This is true in general (subject to exceptions), but not relevant to the guidance above. Excluding a trans woman from the women’s toilets isn’t discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not welcome in the ladies, but because of their physically male sex. Schedule 3 to the Equality Act exempts justifiably sex-segregated services from the general prohibition on direct sex discrimination; and the indirect discrimination provisions of the same Act make it legally risky, at least, not to make use of the Schedule 3 exemptions where they are needed.

For example, this means that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action being taken against the pub, club or venue you work at.

Comment This is unfortunately true, because trans people have been told over and over by those who should know better (including, shockingly, the EHRC ) that they have stronger claims to female-only services and spaces than they do.

There are two points to note here. The first is that ‘a risk of legal action’ is not the same thing as ‘a credible risk of successful legal action.’ The second is that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action against your pub, club or venue – but so too may exposing your female customers to the risks associated with letting male-bodied people use your women’s toilets.

Consult a discrimination lawyer for guidance on which risk is the greater. Consult your conscience on whether to prioritise the safety and dignity of your female customers, or the feelings of your male customers. 

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

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

What did the employment tribunal decide? 

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

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

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

The tribunal dealt with the latter point shortly: 

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

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

Did the employment tribunal get it right? 

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

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she he hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her his gender reassignment, we ask how the Council would have treated someone the same as her him in every respect, except that they weren’t going through gender reassignment; that is to say, a man without the protected characteristic of gender reassignment.  

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

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

Was there a detriment?

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

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

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

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

Was there a valid GOQ defence? 

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

Does the law say that trans women are women?

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

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

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

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

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

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

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

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

Sex, gender and fair competition in sport

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

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

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

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

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

The definition: “gender-affected activity” 

Section 195(3) defines the expression “gender-affected activity.”  If the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other, it’s a gender-affected activity.  

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

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

Subsection (1): sex discrimination 

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

Subsection (2): gender reassignment discrimination  

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

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

Which kind of discrimination is it? 

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

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

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

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

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

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

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

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

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

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

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

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

[2] In fact, it undoubtedly will.

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

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

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

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