Disagreeing with a Woman: Threats of Rape and Violence

On 4^th June 2021 the Daily Telegraph published an article on concerns about the Stonewall Equality Diversity Champions programme. The article included a couple of short quotations from me. On 7^th June 2021 I received a long, intense email addressed to my work email account from a reader of the piece who disagreed vehemently with what I had said.

After expressing some general concerns and criticisms of my character, knowledge, legitimacy, family history and ethics, the writer opined that he (I presume) would be able to change my opinion if he were given the opportunity. He proposed to change my mind through rape and violence – conduct that would result in more than 10 years in prison if it took place. Included were 3 separate photos illustrating different young women being whipped and sexually assaulted.

I am sure that nothing written in this email was written with the knowledge, approval or consent of Stonewall. I have no doubt that Stonewall would never condone threats of sexual violence addressed to those who criticise or disapprove of Stonewall. This email demonstrates, however, a wider problem in British life. Women who are in any way visible – and this was an article in the Daily Telegraph, not a section of a primetime television show – attract a degree of misogyny, threats, sexual imagery and proposed sexual violence that is utterly unacceptable.

Of course this is #notallmen. It is a very small number of men and I am sure the vast majority would never direct such images of rape and violence against women no matter how strongly they disagreed with their opinions. But there is a small, noisy minority of men who do behave in this way. All surveys of women who are MPs, journalists, television presenters, columnists or otherwise publicly visible demonstrate that they attract disproportionately aggressive and misogynistic responses such as these.

Emails of this kind can amount to criminal offences – depending on the context, content and the number of threats, offences could include harassment, contrary to the Protection from Harassment Act 1997, malicious communications, contrary to the Malicious Communications Act 1988 or Communications Act 2003, making a threat to kill, contrary to the Offences Against the Person Act 1861, making a threat to commit criminal damage, the Criminal Damage Act 1971, or blackmail, contrary to section 21 Theft Act 1968. Identifying an offender is not always easy with emails, of course.

Of course, this is not really about the women who are the subject of these kinds of threats. The man who made threats of sexual violence to Joanna Cherry did not know her, any more than my correspondent yesterday knows me. This is about those men, not about the women who are the subject of the threats. It points to an inadequacy and threatened insecurity in the men themselves, rather than in their targets.

But aggression and unpleasantness of this kind deters women from participating in public life. Nobody, of either sex or any opinion, should be subject to threats in this way. My particular correspondent chose the anonymity of a ProtonMail address and cannot be traced. But when men who have behaved in this way can be traced, it should be made apparent that such behaviour is always unacceptable. Perhaps such men should realise they do no good to the causes they claim to support when they act in this manner.

No woman reading a message like this thinks, “Oh, of course, this charming gentleman threatening rape seems a normal and sensible chap, maybe he’s got a point.” Instead, they think merely of his inadequacies and failings.

Everybody in the UK, particularly, in this instance women, deserves better than this.

https://www.telegraph.co.uk/news/2021/06/03/stonewall-advises-organisations-use-parent-has-given-birth-help/

Legal risks for Stonewall members

Why is Stonewall losing members?

The LGBT lobbying group Stonewall seems to be in the news daily at the moment, losing major employers from its ‘Diversity Champions’ scheme, criticised for misleading advice, and damaged by friendly fire from its CEO, Nancy Kelley, who compared dissent from its orthodoxies to anti-Semitism.

From edgy, rebellious beginnings in 1989, Stonewall had grown to become a large and powerful charity with an annual income of over £8M, and an enviable level of access to the Establishment. Its flagship quality mark scheme for organisations, Stonewall Diversity Champions, is a means by which it has persuaded many public and private sector bodies to part with substantial sums of money to be intensively lobbied. A glittering list of heavyweight employers in a wide range of sectors – government departments, NHS trusts, professional regulators, universities, magic circle law firms, household name retailers and many more – had signed up.

But the scheme now seems to be unravelling fast, with new departures announced daily. Why?

The problem, in a nutshell, is that although Stonewall purports provide organisations with advice on complying with the law on equality and diversity, in reality it has been pursuing its own law reform agenda in the guise of ‘training.’ The fact that Stonewall doesn’t have a detached impartial interest in all of the 9 protected characteristics defined by the Equality Act is not in itself a criticism: it is after all a focused lobby group with a particular constituency, and it is entitled to privilege that constituency in its work. But employers and public authorities have different priorities and duties. They’re not entitled to privilege the interests of groups defined by one or two specific protected characteristics over all other groups. If they do – and still more, if they allow themselves to be guided by a pressure group’s retelling of the law as it wishes it were, rather than the law as it is – they are likely to act unlawfully.

The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions creates a wide range of legal risks. What follows aims to provide an indication of some of the kinds of legal problems that organisations may face.

Employment discrimination

Single-sex toilets, etc

Stonewall has widely promulgated the notion that self-identification as trans has legal consequences, and that trans-identifying males are automatically entitled to access women-only spaces. In reality, so far as the Equality Act is concerned, a trans-identifying male without a GRC remains legally male, and can lawfully (and as we shall see, often must) be excluded from any legitimate women-only space; and a trans-identifying male with a GRC may be excluded where it is justifiable.

Employers that accept the Stonewall interpretation of the law and permit trans-identifying males to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims from their female staff. 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, and/or to put female adherents to some religions at a particular disadvantage compared to people who do not share that religion. In either case, the employer will be required to show that its policy is a proportionate means of achieving a legitimate aim. That will be difficult, particularly in light of employers’ duties under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide separate facilities for men and women.

No doubt the great majority of trans-identifying males present no actual threat to women; but some proportion of males do present a threat to women, and there is no reason to expect that proportion to be smaller in the case of the subgroup of males who identify as women. If women suffer sexual harassment as a result of such policies, employers may be vicariously liable for that harassment.

Expanded definition of ‘transphobia’

Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if Stonewall’s definition 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.

One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassignment; 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, and at those times staff can’t simply be asked to ignore it. 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-identifying male 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.

Occupational requirements raise further problems. It is lawful to restrict certain jobs to one sex or the other, if being either male or female is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. So, for example, a department store is 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 a store decides that those jobs can be given to trans-identifying males, then at least arguably they will have destroyed the legal basis on which they restricted them to women in the first place; a man might apply, and sue for discrimination if he is unsuccessful. There is in general no defence of justification for direct discrimination, so an employer that has deprived itself of the shelter of the occupational requirement provisions may find resisting the claim difficult.

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. The only trans people the law regards as having changed sex are those who have been granted a GRC. 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.

Judicial review

Public bodies are bound by the public sector equality duty at section 149 of the Equality Act, and are generally required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which they make decisions, in the performance of their 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. Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s policy relating to trans-identifying males 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.”

In 2021, the campaign group Fair Play for Women successfully challenged the decision of the Office for National Statistics to issue guidance permitting Census respondents to answer the question about sex with their self-identified gender rather than their legally-defined sex.

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 than the reality of how the law is.

In addition, there may be challenge to a public body’s membership of Stonewall’s schemes. An application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage early this year, because 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. But the judge doesn’t seem to have been shown material demonstrating 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. In truth, Stonewall’s interest in the activities of its Champions extends well beyond their role as employers, as is demonstrated by a wealth of material now in the public domain thanks to a FOIA campaign. The failure of one 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.

Some concrete examples

There are real dangers for organisations in signing up to any equality and diversity quality-marking scheme that focuses exclusively on one or a small number of protected characteristics. Some of the following possible scenarios are grave in the extreme, but none of them is fanciful:

A swimming pool opens its women-only sessions to trans-identifying males 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-identifying male wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the duration of a three-year 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-identifying male who does not have a GRC. The NHS Trust’s policy is to treat trans-identifying males 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-identifying male. The patient 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.
Maria is a social worker employed by a local authority that has committed itself wholeheartedly and visibly to the Stonewall schemes, with allyship training, rainbow lanyards, a procurement policy, active social media accounts, and a commitment to buy-in at all levels of the organisation. Maria’s caseload includes 3 girls in their early teens who have recently started to say that they identify as boys. One of them has asked her about how she can get ‘top surgery,’ and another has recently started binding. Maria’s managers tell her that she should refer these children to a local charity for trans youth. Maria looks into the charity, and is horrified by its ‘only affirm’ approach and its record of encouraging young people to transition. She asks her managers for guidance about alternative sources of support for these children which may explore with them the reasons for their sudden identification as trans, and whether it is possible to resolve their dysphoria or come to terms with their bodies as they are. Maria is disciplined for transphobia and for promoting conversion therapy. She brings a whistle-blowing claim against her employer.
A firm of solicitors adopts writes the Stonewall definition of transphobia into its policies, and in its effort to rise up the Stonewall league table, it sets up a working group to draft a response to a government consultation on reform of the GRA. A female solicitor co-opted onto that working group raises a concerns that self-identification would undermine women’s rights, in the course of which she points out that a GRC doesn’t actually change a person’s sex: it only creates a legal fiction to that effect. A trans colleague complains, and the solicitor is put through a disciplinary procedure on a charge of gross misconduct in the form of harassing her colleague by expressing transphobic views. The disciplinary hearing exonerates her, but the process causes her to take time off work with stress and anxiety. She complains to an employment tribunal of direct discrimination on grounds of her gender critical beliefs, and indirect sex discrimination.
Alex, a child with autism and learning disabilities, is being educated at a mainstream school where children routinely call their teachers “Sir” or “Miss.” His class teacher transitions during the course of the school year, leaving at the end of the autumn term as Mr Hawthorn and returning at the beginning of the spring term as Miss Hawthorn. Alex can’t understand the transition, and continues to call Ms Hawthorn “Sir.” He becomes confused and distressed when told that he must now say “Miss.” The school insists, and Alex’s distress increases until he starts refusing to go to school. Alex sues (through his parents) for disability discrimination.
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 police officer who is a trans-identifying male is permitted to carry out a full search of a female detainee, which the detainee experiences as a terrifying and humiliating sexual assault. The police officer is prosecuted; superior officers face disciplinary charges; and the force faces a civil claim for breach of the detainee’s Article 3 right not to suffer humiliating or degrading treatment.
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. Chris, a 17-year-old trans-identifying male wants to join the girls’ First Fifteen. Chris 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 Chris to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite Chris has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.

Membership of the Stonewall Champions or Workplace Equality Index schemes is capable of leading to a significant legal problems for organisations of any kind, in any sector. Depending on the nature of their functions, it may cause them to discriminate against employees, infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm. Organisations should think very carefully – including conducting an equality impact assessment which takes full account of the impact on any policy changes on groups defined by reference to all other protected characteristics before they incur these risks. Organisations that have signed up should conduct a careful review of their policies and practices to make sure that they have not been led into a misunderstanding or misapplication of the law.

Open letter to mySociety

Dear mySociety

#DontSubmitToStonewall FOIA campaign

We are the two groups involved in this campaign: it was launched by Naomi Cunningham on this blog in February, and analysis of the information and related policy work is now being undertaken by Sex Matters. We have read your notice of 24 May responding to multiple complaints, and we are pleased that you have resisted the attempt to close down our collective public transparency project. Thank you for allowing the requests – and the substantial amount of information disclosed as a result – to remain on your site; and for staying true to your goal of helping citizens to understand how power is wielded, and acting together to challenge abuses of power.

We read your report Who Benefits From Civic Technology? highlighting the tendency of civic technology platforms to have predominantly male user bases. As you note, civic technologies lower the barrier to individuals engaging with public bodies, but women face more barriers than men both offline and online. One of those barriers is that when women speak up in the public square they are often shouted down, piled on and unreasonably criticised and harassed.

But we note that this report ignores sex, talking instead about “genders,” and describes users as “identifying as Male” and “identifying as Female”. We don’t believe that being a man or a woman is simply a matter of identity; sex matters. We also note that the vast majority of the volunteers who run WhatDoTheyKnow are men.

The report says, “If platforms have disproportionate usage by one gender, there is potential for the gender associated with lower usage to be marginalised, or at the very least, have issues relevant or important to their gender marginalised.” It gives an “example” that women are more likely to push buggies or shopping trolleys and are concerned by broken pavements, whereas men are more concerned by potholes damaging their cars.

Women are more concerned by the replacement of sex by “gender identity” in public life, because it is predominantly women who are suffering the associated harms: the sexist reinforcement of gender norms, the impact on women’s safety, privacy and dignity, the destruction of women’s sport, and the threats to our ability to discuss the reality of women’s lives.

Our campaign provides a real life example, and a real world test of your commitment to sex equality. Some women ventured onto your site and organised a campaign to crowdsource related FOI requests. They used a memorable phrase (not unlike “Fix My Streets”) and the common internet device, the hashtag. They appear to have been targeted by multiple complaints aimed at silencing them, calling their legitimate FOI requests vexatious or hateful. The CEO of the powerful organisation about which they were concerned also complained about them publicly.

After careful consideration you found nothing that came close to “unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, discriminatory or profane” content” in the requests, nor were they vexatious. But rather than dismissing the coordinated complaints themselves as vexatious, you felt compelled to distance yourself from the female campaigners using the site and to remove their hashtag. That damaged our ability to coordinate organic community action; the core purpose of MySociety.

Like you, we support the rights to equality and freedom from harassment for transgender people. We also support the rights of women not to be discriminated against based on their sex, to retain control of their bodily privacy and personal boundaries, and to have access to single-sex spaces and services. These are modest and reasonable demands, upheld and enshrined in the Equality Act 2010; and yet, because we defend them – and argue that the law as it now is should be correctly interpreted and applied – Stonewall and its fellow travellers seek to demonise us as hateful bigots.

The intention behind the hashtag was to make it easy to find requests, and to allow participants to check whether a public authority had already been covered: we had no wish to inconvenience or hound organisations with repeated requests.

We are indeed seeking to exert pressure on public bodies to reconsider their involvement in the Stonewall scheme which we believe is inconsistent with the Nolan Principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership (Sex Matters is calling for a public inquiry).

We are not seeking to do this through making nuisance or vexatious requests – but by using FOI to uncover the nature and extent of Stonewall’s influence, in order to promote scrutiny and debate. We believe this is wholly in line with the spirit of “What Do They Know” which exists to create collective knowledge and allow people to act together as citizens and communities empowered by access to information. Indeed the new “projects” feature is designed to do just that, and we hope to develop a campaign in future using it.

Rather than banning the use of hashtags, you could regard this as a helpful model for anyone else contemplating a similar collective FOI campaign. We hope that you will reinstate the hashtag, and reflect on how the dynamics that drive women out of the public square (both real and virtual) have been replicated on your platform by the vexatious complaints you received. Or, if you wish to operate a general prohibition on explicitly campaigning hashtags, you could substitute a more blandly informative hashtag; #Stonewall or #DealingsWithStonewall would do.

We hope you will post a link to this response (or the response in full) on your website, and we would be happy to continue this discussion with you.

Yours faithfully

Legal Feminist

Sex Matters

To Boldly Go – Why “going beyond the law” risks unlawful discrimination

Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.

The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An activist’s dream.

It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.

However, this may be a trap for the unwary.

Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.

The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.

A group of academics and students from the University and elsewhere promptly responded in the form of an Open Letter to the Vice Chancellor. Some are from the Law School and others are human rights academics. It is attached here: https://twitter.com/SVPhillimore/status/1395429598331129861/photo/1

It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”

It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?

What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.

The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.

The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged.

Yet in equality law, recognising and balancing conflicts of rights is bread and butter practice. There is plenty of caselaw from Ladele v Islington BC https://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html to Lee v Ashers Bakery Case https://www.supremecourt.uk/cases/uksc-2017-0020.html .

Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “

Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.

As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.

Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”

I have previously set out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.

There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers to address long-standing underrepresentation was flawed and discriminated against a white man.

So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.

AEA v EHRC: An Explanation

There has been a lot of interest in human rights circles about this case and its refusal of permission to judicially review the guidance relating to single sex services. We will look at what the case was about and what the refusal to allow permission might mean. We start by introducing the parties.

The Claimant

The Claimant was Authentic Equity Alliance (“AEA), a community interest company established in 2018 to promote the personal and professional development of women and girls.

It was asking for permission for the courts to determine whether or not the EHRC’s (below introduced as the Defendant) guidance relating to single sex services was lawful.

The Defendant

The Defendant to the claim was the Equality and Human Rights Commission, (EHRC) a statutory non-departmental public body established by the Equality Act 2006. On its website it advertises itself in the following terms:

As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

Its job is to provide guidance and expertise on equality law. To that end it has produced various codes and documents, including the Statutory Code of Practice for Services, Public Functions and Associations (“the Code”), which is the authoritative guide to interpretation of the Equality Act.

Principal area of concern

AEA’s claim against the EHRC focused on one paragraph of the Code:

[Text: If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful when the exclusion is a proportionate means of achieving a legitimate aim.]

The Question of Lawfulness

The excerpt from the EHRC’s code which is copied out above relates to the Equality Act which allows service providers to run women only services (in Schedule 3). The Equality Act starts from a position of non-discrimination – the majority of services are available to everyone regardless of the nine protected characteristics – but accepts that there will be exceptions to this rule. Many of these are uncontroversial. It would be remarkable for someone to suggest that the Brownies are not entitled to discriminate on the basis of age, for example.

Justified Women Only Services

Women only services are exceptions to the starting point of non-discrimination and they are allowed under the conditions set out in Schedule 3.

Broadly (we paraphrase and are not delving into technical details here)

Requirement 1

It is lawful, and will not be sex discrimination, to offer single or separate sex services (SSS) when this is a proportionate means of achieving a legitimate aim (Paragraph 26 – 27 )

Requirement 2

it is lawful, and will not be gender reassignment discrimination, to offer SSS, if the conduct in question is a proportionate means of achieving a legitimate aim. (Paragraph 28)

The Substance of the Claim

The claim that was brought was, as the judge said at the end, complicated. A simplified – possibly oversimplified – summary is this:

Prescriptive Inclusion: The “Must” Approach

The Claimant, AEA, said that the phrase in the COP “should treat transsexual people according to the gender role in which they present” had wrongly led service providers to think that they must treat people according to the role in which they present. The Claimant provided evidence of various bodies which had adopted this position (as discussed below).

The Defendant, EHRC, said that

the COP said “should,” not “must,”
that exceptions were available, and
that the bodies which had adopted the “must” position had not expressly said that they had had regard to the COP. On that basis, the EHRC said that those bodies cannot have been led, or misled, by the COP, as none of them mentioned it.

In fact, the EHRC said, a policy that said a service provider ‘must’ treat people according to the role in which they present would be “directly inconsistent” with the COP.

In other words – other bodies may well be making this unlawful assertion, but it ain’t us guv.

The EHRC suggested that if other bodies had unlawful policies, these should be challenged directly, rather than holding EHRC itself responsible for bodies which should have followed its guidance, but either did not do so or misunderstood it – although naturally, the EHRC was not willing to concede that anyone had been misled in the absence of a smoking gun in the form of a policy which said “and we got this off the EHRC Codes Of Practice”. This, as we will come to shortly, is important.

Extent of Justification Required

The Claimant said that if a service provider meets the first requirement (paragraphs 26-27 of schedule 3) and identifies that providing a woman only service is a ‘proportionate means of achieving a legitimate aim,’ it need not meet the second requirement (paragraph 28 of schedule 3) in order to lawfully provide a female-only or male-only service.

The ‘proportionate means of achieving a legitimate aim’ having been once identified for the purposes of providing the service at all to the exclusion of persons of the opposite sex, there was no need to re-invent the wheel by identifying it again for the purposes of excluding a person of the opposite sex who also had the protected characteristic of gender reassignment.

The EHRC said that this was wrong. It said that the AEA’s analysis didn’t account for those who had lived ‘for many years’ in an acquired role and yet had not, for whatever reason, applied for a GRC. It might be reasonable to include such a person notwithstanding that they were legally male, while it might be equally reasonable to exclude someone with a GRC who was legally female.

At this stage the parties’ arguments essentially converged. Both parties were arguing that a GRC was not relevant to the provision of a single sex service.

Whether Appearance is a factor

The court examined the situation where a person using a woman only service is “visually indistinguishable” from a woman and what this means in law.

This phrase’s provenance is from a case which predates the Gender Recognition Act (“GRA”), A v CC West Yorks. It was about a transsexual MTF police officer who argued that she had suffered discrimination because she was refused employment, as she would not able to search female prisoners. [For the avoidance of doubt, the court held that Ms A “appeared in every respect to be a woman” – this is not a case in which Ms A asserted a gender identity at odds with appearance which would, nevertheless, today bring her within the scope of the Equality Act. The case was brought because a prohibition on conducting searches would alert her colleagues to her trans status, which was not known to them. There is absolutely no suggestion that she was seeking inappropriate contact with female prisoners. ]

The House of Lords held that sex could include “the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.” This was all decided under the provisio that the GRA would consider and address the issue of legal sex.

Times have changed. The GRA is now in force. We no longer assume that gender reassignment means “a post-operative transsexual” and we now understand intimate searches to be something to which a person consents, not to which they object – albeit lack of consent may be no obstacle where the relevant PACE requirements are satisfied.

However personal appearance is a factor which both parties acknowledged as relevant when providing a single sex service and applying the exceptions. In a situation satisfactory to nobody, personal appearance is relevant when assessing whether excluding a transwoman from a woman only service is a proportionate means of achieving a legitimate aim.

The decision

The Judge decided that AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His job was not to decide what the correct interpretation of the law was at this stage. All he had to do was decide if AEA’s claim was “arguable” – that is, was it arguable that the EHRC’s guidance was so wrong as to be unlawful.

He decided it was not, for the following reasons:

On the first argument, he agreed that the COP said “should,” not “must.” He pointed out that the guidance extends to just four paragraphs and is intended to be a brief summary not a detailed legal analysis. After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable. Although it is not detailed, it is not intended to be an exhaustive guide.
He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive. We look at this below.
On the second argument, he agreed with the EHRC that even if a service has met the first requirement by showing it needs to be a single or separate sex service in order to exclude men, nevertheless, it must also meet the second requirement to exclude transwomen where necessary.
It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.
In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate. Someone who is genuinely visually indistinguishable will be unlikely to cause challenge or consternation on accessing a SSS, even if they should choose to do so. Focus on a person’s physical appearance is likely to be experienced as demeaning by both the subject and the person required to make the assessment.

THE EHRC’s Stance on Single Sex Services

It would have been significant if the EHRC had been forced to change its guidance, but the refusal of permission means that the existing situation continues – but with the welcome clarity that the EHRC has acknowledged that there are instances where refusing access to a person of the opposite sex is perfectly reasonable and not phobic.

The EHRC made two important concessions:

It distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women,
It made clear that in its view that a women only service is permissible and the correct approach is more nuanced with a starting point of inclusion but recognising that exclusion can be justified (due to being a ‘proportionate means of achieving a legitimate aim’).

What does all this mean?

EHRC agrees that women only space does not have to include anyone who is male at birth, and described prescriptive inclusion policies along the lines of self-ID as “directly inconsistent” with the Code of Practice.

And where should these cases be brought?

The judge strongly agreed with the EHRC that a better challenge would have been brought by an individual service user against an individual service provider, rather than in the abstract at the level of the EHRC and the AEA.

Whilst a reasonable view in law, this is a sad outcome for both trans and feminist service users and for service providers engaging with SSS policies. Women’s services such as crisis centres, refuges and support groups are overstretched and ill positioned to sustain lengthy legal battles.

Some of the Misleading Public Guidance

The policies which AEA had pointed to as containing misleading guidance included

SIA’s “Trans Customers: A Guide for Door Supervisors;”
ACAS, “Gender reassignment discrimination: key points for the workplace”;
the Metropolitan Police’s Trans Policy;
Cambridgeshire and Peterborough NHS Foundation Trust, “Transgender guidance for Trust staff and service users;”
Aviva, “Transitioning at Work Employee Guidelines;”
Hr024, “Transgender Employees Experiences and a Guide for Employers;
Swim England, “Guide to engaging trans people in swimming”
Citizens Advice, “Single-sex and separate services for men and women” (NB the February 2021 version is accurate)
The Law Society, “Transition and change to gender expression template” (NB this DOES reference EHRC, although was dated November 2020 so this version may postdate the litigation)
YHA, “Transgender Guest Equality Policy (2019)”
Stonewall, “An Introduction To Supporting LGBT Children And Young People: A guide for schools, colleges and settings”
Stonewall, “Delivering LGBT-Inclusive Higher Education”
GIRES “Equality and Diversity Transgender Policy Guide for Employers 2015”
GI, “Trans Inclusive Residentials, A Free Resource for Youth Workers, Schools and Organisations”
GEO and GI, “Providing services for transgender customers. A guide”

all of which envisage that a person must, in some cases from the moment they announce an intention to transition, be allowed to use shared private facilities of their preferred sex. In many of these policies there is no hint that the authors were aware that exclusion may be justified where it is a proportionate means of achieving a legitimate aim.

EHRC said that there was no evidence that the authors of such policies had been led or misled by EHRC, and that the COP provided adequate guidance explaining that exclusion could be justified.

Here is what EHRC said in its skeleton argument about these documents:

“… insofar as the AEA’s primary objection is to guidance suggesting trans-persons must be allowed to access the SSS of their acquired gender, that is directly inconsistent with the COP. As set out below, the COP makes clear, in terms, that trans-persons can be excluded from a service where that is justified, and, indeed, the EHRC has taken steps to bring that to the attention of service-providers whose guidance erroneously suggests trans-persons must always be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others. A striking feature of the present litigation is that, if the AEA or others affected have identified guidance or practices of other public or private bodies’ that does, in fact, reflect incorrect statements of law, it is not clear why they are not being pursued. Instead, a claim has been brought in relation to the EHRC’s COP which simply does not contain the alleged errors.” [emphasis added]

It might be considered remarkable that quite so many bodies have apparently developed policies without regard to EHRC’s express intervention and also its statutory Code of Practice, but there we have it. Policies and guidance which say a person must be allowed to access the SSS of their acquired gender without reference to possible exceptions is “directly inconsistent” with the COP, and the EHRC will correct service providers whose guidance is “erroneous” in that respect.

What happens next?

Everyone who provides a single or separate sex service should ensure that they have good legal insurance. It seems likely that as a result of this litigation, women will take action against the individual service providers whose guidance is erroneous, and that more trans people will take action against SSS when they feel that they have been wrongly excluded. As these cases progress up from the county courts to the High Court and Court of Appeal, general principles will be developed through case law as to what a ‘proportionate means of achieving a legitimate aim’ looks like in practice.

Organisations offering a SSS also need a policy on how, and when, they will apply the exceptions. It will not be enough simply to say “this service is female only.” The policy must set out why the SSS is justified at all and then must say that admission of transwomen is or is not likely to be justified. A blanket ban is likely to be unlawful: the rather far-fetched example was given of a transwoman with her children approaching an otherwise empty women’s refuge in the middle of the night. The policy must envisage the improbable as well as the routine.

Finally, we need more research. Many women avoid mixed space and we hypothesise they will simply self-exclude quietly, leading service providers to become complacent about the need for single sex services. “Our service is unisex,” they say “and we see no women here who have a problem with it, therefore it is unproblematic.” Women who have stopped using a service because it became mixed, or who avoid coffee shops with unisex loos, need to make this known. Service providers need good research to rely on when deciding whether a SSS is justified in order to meet women’s needs. If the service already has an inclusive or conversely an exclusive policy it will not be enough to simply consult with existing service users – it will be necessary to identify potential users too because the policy will have defined the existing service user group.

SINGLE SEX CYCLING

British Cycling has posted a consultation on their proposed ‘Transgender and Non-Binary Participation Policy’. We take a look at the parts of the Equality Act 2010 that are relevant to single-sex sporting events and highlight some of the issues we consider relevant to the consultation response.

The policy can be accessed here:

Responses to the consultation are invited by way of a survey available here:

Legal Definitions

The Equality Act 2010 defines a “transsexual” person as someone who “is proposing to undergo, is undergoing or has 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”. That person will then have the ‘protected characteristic’ of “gender reassignment”. The term ‘transexual’ is now considered to be outdated and ‘transgender’ is typically used instead, but there is no legal difference in the terminology. A person does not have to have had any form of surgery or hormonal treatment to acquire the protected characteristic of gender reassignment.

A person may have the protected characteristic of gender reassignment without their legal sex being changed from that which was recorded on their birth certificate at birth. It is only where a person has a Gender Recognition Certificate (‘GRC’) issued under the Gender Recognition Act 2004 that their legal sex is officially changed. Fewer than 5,000 of the estimated 600,000 transgender people in the UK have been issued with a GRC. It is not necessary for a person to have had any form of surgery or hormonal treatment in order to obtain a GRC, but they will have had to evidence to the satisfaction of a specialist panel that they have lived as their acquired gender for at least two years and that they have a medical diagnosis of gender dysphoria.

The Equality Act creates a starting point that discrimination on the grounds of sex is unlawful. It then goes on to create exceptions to this starting point that make it lawful to discriminate in a variety of specified circumstances. For our purposes the relevant exceptions are “gender-affected” sports (section 195) and single-sex services, which includes the provision of changing facilities and of recreational sporting activities (schedule 3 paragraphs 27 and 28).

Sport

Similar to section 19 of the Gender Recognition Act 2004, section 195(3) of the Equality Act 2010 defines a “gender-affected activity” as

“a sport, game or other activity of a competitive nature in circumstances in which 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 sex as competitors in events involving the activity.”

Section 195(1) provides that it is not unlawful to discriminate on the basis of sex in relation to a person’s participation in a “gender-affected activity”. This means that it is permitted for an event organiser to hold separate competitions for male and female competitors or to run separate classes for either sex within the same sporting event.

If a sport is deemed to be a “gender-affected activity” it is lawful to limit or refuse a transgender person entry to a particular competition if it is “necessary to do so to secure … (a) fair competition, or (b) the safety of competitors”.

This would mean that it would be lawful for British Cycling to refuse to admit all transwomen entry to a female-only competition if it was considered that the effects of going through a male puberty would create a residual biological advantage in a transwoman competitor (such as height, cardio-vascular capacity, muscle mass), notwithstanding that the competitor had demonstrated suppressed testosterone levels for the required 12 month period. This would be lawful regardless of whether or not the transwoman holds a GRC. A failure to take these factors into account could found a claim by female competitors for indirect discrimination.

It would be unlawful to prevent a transwoman from competing in an ‘open’ or men’s category competition.

Services

The exceptions in relation to the provision of services are relevant to non-competitive cycling events and to the provision of changing facilities at an event, whether competitive or not.

Non-Competitive Events

It is lawful to hold single-sex recreational events such as a ‘women only’ cycling event, whether as a one-off or as a regular program.

Paragraph 27 of Schedule 3 provides that it is lawful to provide a single-sex service where

“a joint service for persons of both sexes would be less effective, and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services”, provided that it is a “proportionate means of achieving a legitimate aim”.

Increasing women’s participation in cycling, and in sport generally, is a legitimate aim. Given that there are a vast number of events that are open to men and/or people of both sexes, it is proportionate to hold women-only events to create a more female-friendly atmosphere.

When the single-sex provisions are properly relied upon, it becomes lawful to exclude all male people from that event. This would include transwomen who do not hold a GRC.

It can be lawful to exclude transwomen who do hold a GRC, but the justification for doing so has to be more finely balanced. This is set out in paragraph 28 of Schedule 3. Exclusion from the event would not be on the basis that the person’s legal sex is male, but rather, it would be on the basis that they are transgender. Factors that are relevant to the proportionality exercise can include, for example, whether the event is aimed at women who share particular religious beliefs that limit socialisation with males outside their family.

A woman who felt unable to take part in a ‘women only’ event that was open to transwomen, because of her religious or other protected belief, or because she has previously been a victim of male violence could potentially bring a claim for indirect discrimination.

Alternatively, if a transwoman is excluded from an event for women only because she is perceived as male (notwithstanding her legal status), that is at least arguably sex discrimination (not gender reassignment discrimination), and permitted by paragraph 27 of schedule 3.

Changing Facilities

The same provisions in schedule 3 paragraphs 27 and 28 apply to single-sex changing facilities, whether they are provided at a competitive or recreational event. It is lawful to exclude males as a class from women’s toilets and changing facilities where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”

It may also be lawful to exclude a transwoman who holds a GRC from those spaces on grounds of gender reassignment where it is proportionate to do so. Such considerations may be whether the facilities are communal as opposed to fully-enclosed cubicles. The legitimate aim of encouraging more women into sport should be given particular weight. The impact on women who have suffered sex-based violence and trauma from males must be counted. The needs of all women to privacy, dignity and a sense of safety when changing is reasonable aim that cannot be achieved by compelling them to undress in close proximity to bodies readily perceived as male.

Alternatively, it may be more straightforward simply to characterise that exclusion as discrimination on grounds of perceived sex, which will always be lawful provided the initial conditions for the provision of a single-sex or separate-sex service are met.

Response to Consultation Questions

Q1: Definitions

· Birth Gender: the gender that a person is assumed to be when they are born. This is usually based on the Sex they are assigned at birth.

Comment:

This is not a term recognised in law. It conflates the concept of ‘gender’ with the recording of a person’s sex at birth. It adds nothing in terms of clarity to the definition of ‘sex’ below. This definition should be removed. Where relevant the appropriate term would be “sex recorded at birth”.

· Self-Identified Gender: the gender that the person identifies as, opposed to that which is assigned at birth, their ‘Birth Gender’.

Comment:

This is muddled:

– Sex is recorded at birth, gender is not.

– As above, ‘Birth Gender’ adds nothing to the definition of ‘sex’.

– It conflates the situations of people who are transgender by virtue of ‘self-identification’ with those who have legally changed their sex upon the issuance of a GRC. Their status’ are legally distinct.

Suggest amending to:

Self-Identified Gender: the gender that the person identifies as, opposed to the sex recorded on their birth certificate.

· Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’ and including indeterminate Sex.

Comment:

‘Indeterminate sex’ is an inappropriate term. People with chromosomal anomalies that result in Differences of Sexual Development (‘DSD’) are still recognised as being either male or female.

To properly recognise people who have been issued with a Gender Recognition Certificate, suggest amending to:

Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’, or their ‘legal sex’ as recorded in their Gender Recognition Certificate.

· Transgender: a person whose Gender Identity is different from their physical Sex at birth. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Comment:

This definition is broader than the protected characteristic of ‘gender reassignment’ in the Equality Act. The Act requires that a person is “proposing to undergo, is undergoing or has 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”. Merely identifying as being of a different gender from one’s birth sex is not sufficient to bring a person under the definition of this protected characteristic. Given that this would form the basis for deciding whether an individual is protected from discrimination and the application of single sex exceptions, this requires precision and therefore suggest amending to the legal definition:

Transgender: a person proposing to undergo, is undergoing or has 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. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Q2: Membership

The following amendments are suggested:

· “gender other than that assigned at birth” amend to “gender other than their sex as recorded at birth”

· “for sporting purposes” amend to “for the purposes of British Cycling events and activities”

· “obtain British Cycling Race Membership in their Self-Identified Gender” amend to “obtain British Cycling Race Membership in their Self-Identified Gender or legal sex as recognised by a Gender Recognition Certificate”.

At present the policy does not expressly consider transgender people who have a GRC and who have already changed their legal sex; it appears as it only requires a person who does not have a GRC to present medical evidence that they meet the conditions set out in paragraph 5. As there is no medical condition attached to the issuance of a GRC, the policy must make it clear that both self-identified transgender people and those who hold a GRC must satisfy the medical requirements.

· “their membership shall be in their Self-Identified Gender rather than the Sex assigned at birth” amend to “their membership shall be in their Self-Identified Gender or reassigned Gender pursuant to a Gender Recognition Certificate rather than the Sex recorded at birth”

Q 3: Recreational Activity

This section of the policy, in conjunction with the provisions relating to membership in section 2 allows any male person, even if he is not actually transgender, full and unfettered access to women only cycling events and to women’s toilets and changing rooms provided at those events. All that is required is that he signs a declaration that for “sporting purposes”, he wishes to be treated as if he is female. He does not have to show that he in any way ‘lives as a woman’ or even that he is actually transgender.

The policy fails to apply the single-sex exceptions as contained in schedule 3 of the Equality Act. Failure to provide appropriate single-sex facilities would unlawfully discriminate against women who attend, or wish to attend an event. It is also contrary to British Cycling’s stated aims of increasing the participation of women in the sport.

Q4: Competition

This policy should be worded with greater clarity.

In relation to licences to complete in the female category there is no specification of how the reduction of testosterone has to be evidenced. Is it sufficient to produce a Medical attestation demonstrating that the required hormone levels were met 12 months prior to the date of application? Must this also be evidenced at a date and shortly prior to application and if so, within what time? Is evidence in the intervening period required? How often must testosterone levels be monitored thereafter- is an annual test sufficient?

If a competitor is issued with a female race licence but then fails to evidence that they have kept their testosterone reduced to the correct level in the subsequent 12 months, what happens to any titles, prize money etc that they may win during that period?

In relation to licences to complete in the male category there is no reference to the Therapeutic Use Exemption certificates that would be required in relation to a transman injecting testosterone.

Q 4 Other Comment

Public Sector Equality Duty

British Cycling is likely to be bound by the requirements of section 149 of the Equality Act 2010 – the Public Sector Equality Duty. This applies to some private organisations if they carry out a “function of a public nature”. British Cycling is funded in part by public funds, and exercises delegated powers from Sport England. Its role as a governing body for the sport, including its role in the selection and management of national teams means that it is likely to be deemed meet this criteria.

It therefore has a duty:

“in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is obliged to consciously direct its mind to these obligations and to evidence that it has analysed its policies to ensure compliance with the Equality Act. This would involve taking proper consideration of the rights and views of people of all protected characteristics. British Cycling should carry out an equality impact assessment, informed by a proper consultation with its members to assess the impact of this policy on people of all protected characteristics and particularly on women, including women of minority ethnicities and religions.

Emma Stuart King

Defining Domestic Violence: An Urgent Note of Concern regarding the Domestic Violence Bill

SUMMARY

1. There are deficiencies in the drafting of the Bill that; a) could prove counter-productive and allow the use of protection notices to be weaponised against the real victims of domestic violence; and b) create a risk that vulnerable people who lack capacity or who have a mental impairment may be unfairly criminalised.

2. The definition of “domestic abuse” is insufficiently defined and likely to result in inconsistent and ineffective policing.

3. There are a lack of procedural safeguards to address the following:

i. To ensure that the complainant is at a genuine risk of suffering emotional or physical harm;

ii. To prevent abusers from making false or exaggerated reports in order to obtain a powerful mechanism by which to control their victim;

iii. To prevent abusers from claiming they are being subject to psychological or emotional abuse in respect of behaviour on the part of their victim which is engendered only by the abusive behaviour (the ‘nagging wife’ complaint);

iv. To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct.

4. It is proposed that significant changes be made to the Bill to address these problems. In addition:

i. s 30(5) additionally should prevent the making of a protection order against a person who for reason of their disability is unable to understand the consequences of, or to moderate their behaviour.

ii. s 34(1)(a) to comply with the Equality Act 2010 and the Human Rights Act 1998 additionally should prevent the imposition of restrictions that conflict with a person’s “other protected belief”.

SUMMARY OF THE PROCEDURE

5. Legal Feminist is concerned by the process for the making of a domestic abuse protection notice and a domestic abuse protection order under Part 3 of the Bill. This provides for a procedure as follows:

i. A domestic abuse protection notice may be issued where a senior police officer has ‘reasonable grounds for believing’ that abuse has occurred and that it is necessary to issue a notice to protect the victim from domestic abuse (s 20(3)&(4));

ii. Where a notice has been issued, the police must within 48 hours make an application to the magistrates for a domestic abuse protection order (s 26(3));

iii. The magistrates will make such an order when satisfied, on the balance of probabilities, that the abuse complained of did occur and that it is necessary and proportionate to make the order to prevent domestic abuse or the risk of domestic abuse from occurring (s 30(1)&(2));

iv. Before making a notice or order the wishes of the victim and views of the alleged perpetrator must be considered but are not determinative of the decision (s 22(1) & s 31(1));

v. It is not necessary for the victim of the abuse to consent to the making of the notice or order (s 22(4) & s 31(3)).

vi. As to the content of an order, s 33(1) provides that:

“A court may by a domestic abuse protection order impose any requirements that the court considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse.”

vii. A person commits an offence if without reasonable excuse they fail to “comply with any requirement imposed by the order” (s 37(1)). The offence is both summary and indictable, with a penalty of a fine and/or maximum of 12 months imprisonment for the former and 5 years for the latter (s 37(5)).

6. The definition of “domestic abuse” is set out in s 1. This section contains the totality of the definition.

1 Definition of “domestic abuse”

(1) This section defines “domestic abuse” for the purposes of this Act.

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” 5 if—

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive. 

(3) Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological,  emotional or other abuse; 

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

PROBLEMS

7. We consider this section to be problematic, for the following reasons:

i. Defining “abusive” behaviour as “other abuse” is circular in its reasoning;

ii. There is no necessity for proving that the ‘victim’ of the behaviour finds it abusive;

iii. There is no requirement that the ‘perpetrator’ understands (or should reasonably understand) that the behaviour is abusive;

iv. There is no requirement to show that any further instance of domestic abuse has occurred following the making of an order, as the offence lies only in breaching the conditions of the order; such conditions may be ‘any’.

8. Legal Feminist highlights two potential scenarios in which the lack of requirement to prove either the perception of the ‘victim’ or of the ‘perpetrator’ could result in unintended and unjust consequences:

i. Use by perpetrators of domestic abuse to further persecute their victims.

9. Members of Legal Feminist are familiar with the current use and misuse of Domestic Abuse protections and how domestic abusers manipulate the system so that victims often end up re-victimised by the very system which was designed to help them. [2]

10. Not all victims of domestic abuse are silent victims. Many women[1] do shout back, argue, complain etc or even at times attempt to defend themselves physically. Such attempts at resistance do not reflect the power imbalance or mean that they are not ‘properly’ victims of abuse at the hands of their violent male partner.

11. It would become possible in this scenario for the abuser to report to the police that he has been struck on one occasion by his female partner and to persuade the police to issue a protection notice. Whilst the police are obliged to take into account any representations made by the alleged perpetrator (in this case the woman), they are not obliged to seek out any representation or to properly investigate or challenge the account given by the alleged victim (in this case the man). On production to court, the magistrates can proceed to issue a protection order even if the man does not attend (it is not possible to for a summons to be issued for his attendance s 26(8)(b)). They can find on the balance of probabilities that abuse has occurred without any investigation as to whether the man truly suffered any emotional or physical harm, and without there being any investigation as to the background of the relationship that may have caused the woman to react as she did. The making of a protection order would then be a powerful tool that the abusive man could use to control the actions of the woman.

12. This risk of misuse becomes increasingly difficult to guard against when the ‘abuse’ complained of is “psychological, emotional or other abuse”. Complaints of controlling behaviour may in fact be explained by the fact that the man is frequently absenting himself without explanation because he is being sexually unfaithful, or is spending scarce family money on gambling, alcohol etc. Women writing for organisations such as transwidowsvoices.org have recorded that when transitioning to a female identity their male partners have accused them of emotional abuse when they have referred to them by their male name or allowed their children to call him ‘dad’.

13. Where a woman is a victim of domestic violence, she may not be ready to reveal that this is the case, fearing for her own or her children’s safety, or due to financial or accommodation worries. She may prefer to take the consequences of accepting the protection order rather than incur the wrath of her male partner by revealing to the police or magistrates the truth of their relationship. The proposed procedure risks pushing her into a situation for which she is not ready and which may in fact be harmful to her interests.

14. Procedural safeguards need to be built in to ensure that the alleged victim is truly at risk of suffering emotional or physical harm and to prevent the process from being abused.

Criminalisation of Vulnerable Adults

15. The combined factors of the lack of requirement of intent to abuse and the negation of a requirement for consent by the victim leads to the potential for the criminalisation of vulnerable adults with behavioural or learning disabilities.

16. For many adults with such disabilities, home is a safe place where they can vent their feelings of anxiety and frustration that they have to work hard to conceal from the outside world. This often is expressed by verbal outbursts and other behaviour that may in other be considered to be abusive. Whilst there is certainly more scope for providing support to the family members who live with such vulnerable adults, it is unlikely to be in the interests of either party to criminalise the vulnerable adult and may cause considerable upset to the family members.

17. We recommend that at s 30(5) the wording is amended to state “or who for reason of disability is a) unable to comprehend that their behaviour is abusive, or b) is significantly impaired in their ability to moderate their behaviour to refrain from the abusive conduct.”

Legal Feminist

15 March 2021

[1] We recognise that people of either sex can be a perpetrator or victim of abuse, but for simplicity give examples here of typical patterns of male abusive behaviour against a female partner.

[2] One of the barrister members of the Legal Feminist collective has been involved in four separate public law cases involving the existing Domestic Violence Prevention Notice (“DVPN”) regime. She stresses that these cases may not be typical or representative of the use of DVPNs; as in general few DVPNs end up as public law cases.

In each of these four cases, a DVPN was served upon a woman. In each case, the woman had previously been the complainant in a domestic violence case in the criminal courts, or the beneficiary of a non-molestation / occupation order in family law, or both.

In two of the cases, the service of the DVPN meant that both the woman and her child(ren) had to leave their home immediately to go to a hotel or hotel. In the other two cases, the woman left alone (one had no children, in the other case, the teenage children remained at home). It is noteworthy that the police had not completed the paperwork properly in two of the cases. In one case, no reason was given for the issue of the DVPN at all

Legal Feminist holds serious concerns that in at least some cases, the police have issued a DVPN against a woman who has already been a victim of domestic abuse, affecting children as well as women.

Sex Based Rights: A Remedy To Sex Based Wrongs

What are “sex based rights”? What do women mean by the phrase – and do we even have them?

A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.

What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.

They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.

Blackadder misinterprets the Equality Act when Baldrick relies on the single sex exceptions

So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.

So the ordinary rule for services is that everything is mixed sex, except where

“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.

S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.

It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.

In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.

Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).

(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)

Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.

And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.

So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?

The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”

The nineties were a particular hotspot for such arguments, as the marital rape case (R v R [1991] UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”

The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”

Indeed, men’s rights activists such as Diana Thomas (writing in 1993 as David) insisted that it was really men who suffered sex based oppression – including by being ‘provoked by neurotic women into committing date rape’.

None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”

What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”

This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’

For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.

If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.

For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.

While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”

While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.

While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.

Suspended sentencing: the case of Javed Miah

This is a blog about sentencing, and outrage, and outrageous sentencing.

In particular, it’s about this case of sexual assault perpetrated by a stranger, reported in the Mirror as “Dad who attacked woman walking home at night avoids jail as he ‘would lose his job.’”

The facts are thrown into particularly sharp relief this week, in the wake of the abduction and murder of Sarah Everard. The defendant, Javed Miah, walked behind the victim and bumped into her, asking her the time. After following her for a minute, he groped her bottom, pushed her to the ground, and moved his hand from her crotch up to her chest. The victim managed to connect an emergency SOS call on her mobile phone at which point he ran away.

Miah was given a six month sentence, suspended for two years. He will also have to complete 250 hours of unpaid work, complete the sex offenders rehabilitation programme, and sign the sex offenders register for seven years.

Women are justifiably outraged. How can a man push a woman to the ground, commit a sexual assault, seemingly intent on worse and yet walk free from court?

Other commentators can point you towards the Sentencing Guidelines and point out that the judge has followed them. The Mirror reported that the judge called the attack ‘sustained.’ That would make it a Category 2, Culpability B offence, carrying a one year starting point with a range of a community order to two years custody. With both the logic and the emotion of a Sudoku puzzle, the starting point of one year is then adjusted up for location and timing (alleyway, after dark), then down for previous good character and remorse, ending at a 9 month sentence. A further 30% off is applied for a guilty plea, bringing it down to six months. The judge must then consider mitigation and whether or not the sentence can properly be suspended. Any sentence of 2 years or less is capable of being suspended – and there are good reasons for this: if someone loses their home, job, relationship and future prospects they are more, not less, likely to reoffend. Feed the data here into the OASys machine and we have a defendant who has a secure relationship – ding! – with a job – ding! – and a home – ding! – and children, meaning community ties – ding! – which all feeds into the assessment of a low risk of reoffending.

So yes, assuming from the limited information in the reports that it was correctly categorised, the magistrate has applied the guidelines correctly. The defendant pleaded guilty, so we don’t even need to get into whether the prosecutor has done their job well: plainly they have. Defence lawyers are often blamed for ‘getting their client off the hook,’ but since this defendant had pleaded guilty, we can blame the defence for nothing more sinister than effective mitigation, which is the right of the most egregious criminal in the land. And of course, it would be absolutely wrong to suggest the judge was entitled to sentence the defendant for what he (probably) would have done if not for the victim’s actions, rather than for what he did do. We do not sentence people for things they didn’t do – even if we think they might have done had they had the opportunity. This is fundamental to the rule of law.

And yet.

The purpose of this blog is not to reassure readers that the system is infallible. It is to make plain that the disquiet felt by women at sentences like this is not because women have failed to understand how the guidelines work, but because the guidelines do not reflect the terror that this type of offending causes to women going about our daily lives. We can reassure readers that such sentences are not the result of outright bias or corruption – but we would, ourselves, prefer an assurance that the Sentencing Guidelines will be updated and improved.

“Conversion Therapy”: The Trojan Horse Returns

The words ‘conversion therapy’ to most people, evince the spectre of homophobic practices whose purpose is to ‘relieve’ a person of their sexual orientation, and replace it with something more acceptable to others or, occasionally, themselves. It is an attempt to alter an objective fact (sexual orientation) in order to realise a subjective belief (most commonly that homosexuality is a sinful moral choice). Legal Feminist is implacably opposed to such practices.

But current calls for the prohibition of conversion therapy are not confined to the protection of sexual orientation. The phrase has been repurposed. For the purposes of this campaign, the term ‘conversion therapy’ has been extended to include treatment for gender dysphoria, and in particular any treatment that fails to immediately affirm gender identity. This elision of gender identity and sexual orientation is a linguistic sleight of hand, designed to confuse the natures of the two. No discussion can flourish, no debate can find resolution, when the language used between the participants is not shared.

Other than in the most self-conscious academic circles, it is uncontroversial that every person has a sexual orientation. Sexual orientation – whether homosexual, heterosexual, bisexual or asexual – is almost universally accepted as a fact of people’s lives; any moral, religious and political arguments about it relate to its internal diversity rather than any question of whether it exists. A broad consensus has been reached that an attempt to change a person’s sexual orientation is neither realistic nor humane.

It is, however, far from uncontroversial to state that every person has a ‘gender identity’. The concept of gender identity cannot be taken as a commonly agreed fact of human life, any more than the concepts of God, transubstantiation or reincarnation. Those who believe in such things are entitled to hold and express their beliefs without suffering unlawful discrimination, but that entitlement does not confer the status of fact on those beliefs. To approach the rights that attach to belief in any other way would lead to an intractable set of conflicts.

Some people sincerely believe in gender identity. Others have given the matter little or no thought. Still others positively reject it, holding that the concept of gender identity is based on outmoded stereotypical expectations of how women and men should look and behave. The concept of being ‘transgender’ (as opposed to ‘transsexual’ or ‘transvestite’) is a relatively new one, and one whose meaning and scope are problematically vague. It is instructive that in the 2017 Memorandum of Understanding on Conversion Therapy in the UK (Version 2), signed by a number of therapeutic bodies, sexual orientation was defined with commendable clarity:

‘sexual orientation refers to the sexual or romantic attraction someone feels to people of the same sex, opposite sex, more than one sex, or to experience no attraction.’

By contrast, the best the authors could do by way of a definition of gender identity was painfully circular:

‘gender identity is interpreted broadly to include all varieties of binary (male and female), non-binary and gender fluid identities.’

Sexual orientation is a fact, gender identity is an idea. People who identify as trans must be protected from any coercive attempts to change their beliefs. But those who call for a ban on ‘conversion therapy’ in respect of gender identity are seeking to ensure a state mandate for a solely affirmative model of treatment of those presenting with gender dysphoria. That model is predicated on an expectation of interference. It is, if not unique, a peculiar treatment model that accepts, with total incuriosity, a patient’s self-diagnosis. Its foundation is an acceptance that the person has indeed been ‘born in the wrong body’, and must be recognised as the sex they believe themselves to be, without exploration of why they feel that way, or whether social norms are the real problem. It anticipates, and drives the individual towards, medical intervention, in the form of puberty blockers and cross-sex hormones. It frequently leads to irreversible surgical intervention in the form of elective mastectomy of healthy breasts, phalloplasty, the creation of a neovagina, breast implants, facial feminisation and so on.

Sexual orientation conversion therapy is a harmful form of interference, driven by the desire to subjugate reality to a subjective belief; a ban is a prohibition on that interference and the prevention of consequential harm. By stark contrast, a ban on anything other than the affirmative model of gender identity treatment would compel interference with objective fact in order to realise a subjective belief. It is precisely the irreconcilable nature of these two creatures which the misuse of language is designed to conceal.

The foreseeable legal and practical difficulties with the introduction of any legislation made on the basis of this conflation should give long pause for thought. For most individuals (ie: those who are not bisexual or asexual), the process of transition between a male and a female ‘identity’ will amount to a conversion of that person’s sexual orientation. This is not meaningless, or trivial; it can be seen in action in Iran, where gender transition is used as a ‘cure’ for homosexuality. The fact that the tenets of gender identity ideology are both embraced and legally enforced by a country with as poor a record on freedoms and human rights logically calls into question the endlessly repeated claim that the notion of gender identity is inherently progressive or liberal. It is not.

The law governs our obligations and restrictions, and must be expressed with absolute clarity. It must be readily intelligible to those not burdened with legal expertise and, in its prohibitive aspects, should never seek to rely on a presumed consensus in order to operate properly. A statutory prohibition which elides the fact of sexual orientation with the belief of gender identity is freighted with confusion, internal contradiction and the wholly predictable possibility of long, costly, distressing litigation whose only beneficiaries will be lawyers.

The battle lines have been drawn across the bodies of children. Proponents of the affirmative model advocate a pathway which enjoys the support of little reliable or objective evidence. They brook no contradiction that a child’s preference for toys, clothing and behaviour traditionally attributed to the opposite sex is a proper diagnostic basis for serious, life changing and sometimes irreversible treatment.

With a grey, depressing ineluctability, those juvenile bodies are overwhelmingly female. The recent spike in young people identifying as transgender most markedly affects teenaged girls, already a particularly vulnerable cohort. On the basis of information from the Tavistock NHS Clinic, referrals of young people have increased from 72 in 2009 to 2,590 in 2018, although this cannot represent the overall numbers because so little data is available from private clinics. The paucity of reliable data in this area (including the numbers of people identifying as trans, engagement in any process of transition, medical intervention – whether prescribed or not, surgical intervention, desisting and de-transition) should be treated as a cause for the greatest concern and caution, rather than a basis for legally enforcing an ‘affirmative’ approach.

The proposed restrictions on clinical and therapeutic practitioners will be draconian: treatment to address gender dysphoria will be confined to those who believe in gender identity and are prepared to relinquish any critical enquiry into their patient’s reported difficulties. The enforcement of an exclusively affirmative approach ignores a number of factors which are, or may be, highly relevant in assessing a patient’s suitability for medical/surgical treatment. Girls with neuro-diverse conditions such as autism, ADHD and ADD frequently suffer from profound discomfort with the social behaviour and expectations traditionally regarded as ‘feminine’; compounding this, they are frequently diagnosed late, or missed entirely because the prevalent diagnostic model is still based on male symptoms.

The high incidence of eating disorders and self-harm amongst teenaged girls cannot be ignored when an assessment is being made of a patient’s sense of alienation from their own body. Peer pressure (particularly in the context of a heavy reliance on social media), and social contagion are also highly relevant factors which need a great deal more scrutiny before the purely affirmative approach can be regarded as safe. The decision-making process for people under 25 should also be firmly placed in the context of their neurodevelopment; the frontal cortex of the brain is not fully developed until the early-mid 20s, leaving young people vulnerable to a limited capacity for consequential thought. Decisions which are both life-changing and potentially irreversible need to be taken with the greatest of care and the most reliable and balanced information possible. The affirmative-only approach not only falls far short of fulfilling this need, it advocates away from doing so.

The same voices to call for the affirmative-only approach are swift to dismiss the experiences of those who desist or de-transition as statistically insignificant. It is an easy claim to make, but difficult to back up with anything other than rhetoric. Those who detransition often don’t return to the therapists and doctors who originally treated their dysphoria. Because the experience of transition is treated by proponents of the affirmative model exclusively as a cause for celebration, and is heavily defended from any more enquiring approach, it is likely that vulnerable children and teenagers will feel a powerful reluctance to ‘come out’ about their change of heart, and an even greater reluctance to bring that decision to someone in authority who so clearly advocates for transition as being overwhelmingly beneficial in its nature. Consequently, the gaps in gathering crucial data about those who de-transition or desist are too significant to make any reliable assessment. Enforcing a model when the rates of success and failure are entirely unknown, and the metric of success and failure remains both nebulous and ideologically driven, is reckless in the extreme.