Garden Court Chambers is a prominent and highly regarded set of barristers’ chambers based in Lincoln’s Inn Fields, London. Garden Court prides itself on its “progressive” attitude to law: for example, its members will defend but not prosecute, in common with other “progressive” sets. Its motto, “Do right, fear no one,” reflects its stated commitment to “fighting your corner, no matter how formidable the opponent might seem”.
So how has such a set found itself at the heart of a legal challenge from one of its own barristers, who accuses it along with Stonewall of discriminating against her as a woman and a lesbian?
Stonewall has recently attracted some accusations of homophobia for quietly redefining “sexuality” to mean an attraction to a gender, not a sex. Stonewall’s definitions, from their glossary, are these:
Homosexual: This might be considered a more medical term used to describe someone who has a romantic and/or sexual orientation towards someone of the same gender.
Gender: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth
Gender identity: A person’s innate sense of their own gender, whether male, female or something else (see non-binary below), which may or may not correspond to the sex assigned at birth.
So for Stonewall, being L, G or B has nothing to do with a person’s sex, but rather means one is attracted towards a person’s “innate sense” of masculinity or femininity “which may or may not correspond to the sex assigned at birth.”
The idea that femininity is innate in women – and by extension, that unfeminine women are not women, and that the culturally determined status of women globally is not attributable to patriarchy but innate to women ourselves – is offensive to many women. Many lesbians (and gay men) are aghast at the proposition that sexual orientation derives from some sort of soul-based echolocation and disregards biological sex.
One of those women is Allison Bailey, a criminal defence specialist at Garden Court, who is herself a lesbian. She sets out in the background to her action that she is the daughter of Jamaican immigrants, a survivor of childhood sexual abuse and an active anti-racism campaigner who spent a night in a San Francisco jail for a peaceful protest in the wake of the acquittal of the officers involved in the beating of Rodney King – in summary, a woman who would seem to typify Garden Court’s ethos.
She was involved in setting up the LGB Alliance in 2019 to advance and protect the rights of lesbians, gay men and bisexuals to affirm themselves as attracted to members of their own or both sexes. LGB Alliance dissents from Stonewall’s position on the definition of homosexuality, accusing Stonewall of homophobia. That has upset Stonewall.
So far, so perfectly ordinary: private citizens are well within their rights to be involved in whatever social and political voluntary work they wish within permissible legal confines, without interference from their employers or their colleagues.
However, when Allison tweeted in support of the LGB Alliance immediately following its first public meeting, Garden Court hastily put out a disclaimer distancing itself from Allison and her views, instigated a disciplinary procedure, and (she alleges), restricted the flow of work to her, causing her income to drop considerably. Allison says this was done under pressure from Stonewall.
In her fundraiser, she sets out how in response to her Subject Access Requests, her chambers replied with four lever arch files of documents, while Stonewall blandly denied any correspondence about her. That, as she knew from the documents her chambers had provided, was untrue. She pursued the inquiry, and this has resulted in her bringing an action against both Garden Court and Stonewall.
The legalities of the action are worth considering. She alleges that Garden Court discriminated against her as a woman and as a lesbian, so on the basis of the two protected characteristics of sex and sexual orientation. At the same time, she says that Stonewall engaged in “prohibited conduct” under s.111 of the Equality Act by instructing, causing or inducing Garden Court to discriminate against her. We are not aware of any other s.111 case that has been reported, so this may be a legal first.
This week, Stonewall and Garden Court applied to the tribunal to strike out her claim. To succeed, they would have had to show that Allison’s claim was unarguable – that it was so ill-founded that it stood no prospect of success at trial. When a strike out application is heard, the judge has to take the Claimant’s case “at its highest” – because if it cannot succeed even at its highest then it is unarguable.
Garden Court filed a 120 paragraph witness statement in support of its contention that the claim was unarguable. A cynic might suggest that anything that takes 120 paragraphs to refute or undermine is plainly arguable. Garden Court argued that the claim could not succeed on merits, and Stonewall argued that the s.111 point could not succeed as there was no relationship that could meet the requirement of instructing, causing or inducing. Allison asked for permission to amend her claim.
In order to establish whether a claim is arguable or not it is inevitable that some of the evidence will have to be referred to. During this hearing, it emerged that Stonewall had leaned hard on Garden Court, writing emails which were characterised by the judge as a “threat” of reputational damage to Garden Court, including that for Garden Court to continue to support Allison “puts us in a difficult position with yourselves”, that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people”, and that Garden Court must take disciplinary action against Allison or, as summarised by her barrister, face the reputational consequences.
Unsurprisingly, the judge concluded that it was at least arguable that this was “inducing” Garden Court to take the steps against Allison Bailey which it did. She also concluded that the Diversity Champions Scheme provided the requisite relationship, and that Allison had a “more than reasonable” argument that the steps taken amounted to discrimination. She refused the strike out application and granted the application to amend.
It remains to be seen whether the Employment Tribunal will conclude in June that the actions of Garden Court and Stonewall were actually unlawful rather than merely astonishing.
In the meantime though, the question arises as to how much power and influence a charitable organisation should have over individuals with whom it disagrees. Even the most zealous defender of the Stonewall position would, we think, baulk if equivalent pressure were applied by another large and well regarded charity firmly embedded in the establishment – for example, the Church of England. If the Church were to lean as hard on an employer (or chambers) to disown a member for setting up an LGB organisation, there would quite rightly be uproar from Stonewall’s supporters. No charity, no matter how well intentioned, well financed or well regarded, should be able to use a diversity scheme to exert pressure which is at best (on Stonewall’s case) intrusive and at worst (on Allison’s case) unlawful.
However, Jackie Weaver, who acted as clerk for the meeting, is not an officer of the parish council. She is the CEO of the Cheshire Association of Local Councils, a branch of the National Association of Local Councils (“NALC”) who represent and provide training and support to their membership of parish councils. National Association of Local Councils (nalc.gov.uk)
While Jackie Weaver did not have authority to call the meeting, she was there supporting two councillors who did have lawful authority to call an extraordinary meeting where the chair refused to do so.
Handforth’s Democracy Problem
It seems that the councillors’ actions became necessary because the chair of the council had suspended the original clerk (also called the “proper officer”) who would normally set the agenda and summon councillors. It is said that he appointed himself as interim “clerk”, allegedly making unlawful decisions on behalf of the full Council. If this is correct then he effectively removed his fellow councillors’ democratic right to vote on decisions as a result of refusing to summon them to a meeting. Handforth Parish Council
How Parish Councils Work
Whatever “Aled’s Ipad” may have insinuated, Jackie Weaver would not only have read and understood the Parish Council’s Standing Orders, but may have had some involvement in writing/reviewing them, as her employer, NALC, publishes the model “standing orders”, reflecting statutory requirements, adopted by many parish councils. Revised Model Standing Orders – LALC – LALC
A parish council is an arm of government, albeit the lowest tier, with responsibility for making lawful, transparent decisions to spend local tax-payers money in accordance with the law and for the benefit of those in the parish.
The decisions of a parish council are only lawful where they are made by a majority vote of full council at a properly convened, quorate meeting held in public (or where the full Council vote in this way to delegate specific powers to a committee of at least three councillors). Statute, as reflected in a mandatory provision of every parish council’s standing orders, prohibits decision-making powers being delegated to any single officer, including the chair. Decision-making by single councillors is unlawful. Decision-making between meetings – whether of the full Council or a committee or sub-committee – is unlawful. (Save for certain specific, limited, decision-making powers delegated by the full Council to the clerk, who is an employee, or “officer” of the council.)
Meetings regarding council business are held in public. While the public cannot vote, they can attend, read the background papers, and watch their councillors debate and vote. In certain circumstances, strictly limited by law, press and public may be excluded for specific agenda items. However, such votes will be recorded as such in the minutes, and where there is no blanket exemption, councillors must vote on whether exclusion is necessary or desirable.
The Limits of a Parish Council Chair’s Power
Like a jury, decision-making must result from a majority vote of all members present, each member must decide for themselves, and no single member (whether the chair of the council or the foreman of the jury) is the “boss” of the other members.
The additional powers of a parish council chair are limited to presiding over council meetings to ensure all councillors have the opportunity to speak, taking votes of fellow councillors (sometimes with a casting vote), and signing minutes. The additional powers of a jury foreman are limited to taking the vote of fellow jury members and communicating this to the judge.
If a jury foreman suggested he had the power to declare people guilty independently of the rest of the jury and/or outside of a courtroom setting in response to a judge, most people would find this implausible. In contrast, however, the limits of the power of individual parish councillors, particularly the chair of parish councils, are not as widely understood.
Parish Clerks: An Independent Role
The union representing parish clerks, The Society of Local Council Clerks (“SLCC”), advises clerks that their primary responsibility is to advise the council on whether its decisions are lawful, and provide unbiased information to councillors before they debate and vote. Officially, the role requires the clerk to take instructions from the council as a body, as the clerk is not answerable to any individual councillor (not even the Chair). The clerk is supposed to demonstrate independence, objectivity and professionalism with regard to council business. It is also the clerk, as the council’s responsible financial officer, who must vouch for the lawfulness of the Council’s decisions when signing the financial and governance statements for the annual audit.
However, while on paper they are the chief officer (albeit often the only officer) of a parish council, in practice clerks are often isolated, sole employees, working part time hours for amateur bosses, many of whom are retirees, who have nothing to lose from acting beyond their powers. They have no job to lose; and they are playing with the house’s money, or at least funded by local council tax payers money and/or relying on insurance claims to cover any consequences.
When Parish Councillors Go Rogue
While unlawful decisions may have adverse consequences for the council itself, as far as councillor misconduct is concerned, there is a “light touch” framework for local government ethical standards under the Localism Act 2011. The Standards Board for England was abolished on 31 March 2012, and from that date English local authorities were no longer required to have standards committees to adjudicate on breaches and decide upon sanctions. The Act also removed the ability for councillors to be suspended or disqualified for a range of misconduct issues.
The Committee for Standards in Public Life highlights the adverse consequences arising from the current lack of effective sanctions available to underfunded district council monitoring officers. The cost of investigating a breach of the councillors’ code of conduct may be disproportionate to the benefits (which may now be limited to publicising the breach, requesting an apology or requesting training is undertaken), even where there are no confidential issues which prevent publicity of the breach.
In any case, both parish clerks’ and district council lawyers’ resources and working hours tend to be budgeted on the basis of the time it takes to do things when councillors are listening to advice from clerks and monitoring officers, abiding by their Code of Conduct and endeavouring to act lawfully. Allocated working hours and budgets tend not to take into account the time necessary for resisting the making of, or taking remedial action after, unlawful decision-making.
An SLCC survey of part-time Clerks revealed that, taking into account the hourly rate of pay and actual hours worked compared to contracted hours, there are a disturbing number of council clerks who are working for less than the minimum wage. An SLCC survey of monitoring officers indicated that 11% of those who responded were unable to commit resources to supporting parish councils with councillor behaviour issues with a further 49% only becoming involved when there is a complaint.
Jackie Weaver’s Intervention is a Privilege Not a Right
While NALC offer vital training and support to councillors and clerks where councillors vote to spend money on membership and training, it is important to realise that – rather than her being “parachuted in” from a higher tier of local government – Jackie Weaver’s services were available to the Handforth Parish Council only because councillors voted to pay for membership of the Cheshire ALC. Not all councils have the undoubted benefits of NALC guidance and resources.
Whilst this zoom video looks like it was scripted by the late, great Victoria Wood, these people are our politicians. They have signed a Code of Conduct and hold public office. They are not the cast of “Inside Number Nine” or members of a hobby group arguing over how to spend their own subs. As members of a Council, they have control of public money.
The Parish Clerks’ Predicament
The clerk, or proper officer, is an employee of the Parish Council. Their absence from the meeting, because they had been suspended by the chair (reportedly acting unlawfully), was the catalyst for the now legendary intervention of Jackie Weaver.
An SLCC survey of 800 clerks suggests that 15% of parish councils experience serious councillor behavioural issues such as bullying and disrespect towards other councillors or the clerk, and 5% of parish councils experience these issues to the extent that they are unable to carry out some or all of their proper functions. SLCC were quoted in a 2019 Committee for Standards in Public Life report:
“The impact often includes serious ill health, loss of employment, loss of confidence and a long-term detriment to their personal and professional lives. The parish sector experiences a high turnover of staff each year. In some areas of the country this can be up to 20-30% of clerks and a large element of this can be attributed to the underlying behaviour issues. We are aware of cases where the issues are long standing and repeated year on year, with multiple cycles of behavioural issues, loss of personnel and recruitment taking place.”
Clerks may also be put under pressure to acquiesce to unlawful decisions by councillor(s). While this may not always manifest in the dramatic intervention of Jackie Weaver or her colleagues from the ALC, this should be of wider concern, both from a democratic and an employment law point of view.
Parish Clerks’ Pay and Conditions: A Feminist Issue
The vast majority of parish clerks are female. Many of them are women who need to seek out these flexible, local, part time jobs to fit around caring responsibilities. Like Jackie Weaver, they may be patient women trying to ensure compliance with the law. Unlike Jackie Weaver, their line managers may be their local equivalent of the Handforth chairman or “Aled’s Ipad”.
Handforth Parish Council documents indicate that the Chair and Vice-Chair had been preventing councillors meeting and voting for six months. Thus literally preventing democratic debate. While these disruptive men purported to be acting in accordance with the law (“Read the Standing Orders! Read them and understand them!”), they attempted to prevent debate by applying the law against public policy and without following democratic principles.
There is a principle that law should serve the public interest: “all enactments are presumed to be for the public benefit”…“this means that the court must always assume that it is in the public interest to give effect to the intention of the legislator, once this is ascertained.” Standing orders, and the statutes from which they derive, exist to enable democratic debate, not prevent it. Holding fast against the misplaced confidence of rogue councillors attempting to disrupt a meeting by shouting, as at Jackie Weaver, to read and understand (their misinterpretation) of the very laws which were drafted to enable debate is something that should be above a parish clerk’s (often de facto sub-minimum wage) paygrade, but unfortunately it too often is not.
Democracy – often represented by a lone, overworked, underpaid, female parish clerk – has to have authority over specious misinterpretations of the standing orders. But how, realistically, can this be achieved?
Democracy May Be The Only Solution
The Committee for Standards in Public Life concluded their January 2019 report by recommending reforms to improve standards in parish councils. In the meantime, the last effective sanction left to deal with parish councillor misconduct is the ballot box. You see, in one sense, it is right to say “Jackie Weaver has no authority” in that she has no authority to get rid of those rogue councillors permanently. Low voter turnout means that many parish council seats are uncontested and serial misconduct is allowed to continue. It is therefore up to electors to vote in local elections to remove rogue councillors, and scrutinise their parish council’s decisions. (Unlawful decisions of the Parish Council as a whole, can be brought to the attention of the council’s External Auditor during the annual audit process.)
Exercise your democratic rights. Get involved with local democracy by standing for election and voting in elections at every tier of government. Look at the NALC campaign to recruit a more diverse range of councillors. Elections — #MakeAChange (nalc.gov.uk)
Don’t make the mistake of assuming that the effective restoration of democracy by the likes of Jackie Weaver is inevitable or even likely. She is a rare and precious creature. Local government democracy needs more women of substance like Jackie Weaver. And it needs us all to be more Jackie Weaver, and assert our authority for the sake of democracy.
The response to my call for action, asking people to submit FOIA requests to public bodies asking them about their dealings with Stonewall, has been amazing – huge thanks to everyone who has taken part so far. Responses are starting to come in, so it’s time to provide some guidance about what to do next.
If the authority has provided all the information you’ve asked for, all you need to do is update the status of your request to “I’ve received all of the information.” That’s it – the information is now there for all to see, and you’ve made a significant contribution to bringing Stonewall’s influence over our public authorities out into the daylight. Thank you.
If the public authority has refused to provide the information, or provided partial or unsatisfactory answers, the next step is simple. You write back to them as soon as possible (but at any rate within 2 months) asking for an internal review.
You can do this through the Whatdotheyknow.com, by clicking on the “Actions” button at the bottom of the page showing your request, and then choosing “Request an internal review.” (Please do do it this way, rather than just emailing the body – so that the answer to the request for internal review is also displayed on Whatdotheyknow.com.)
That brings up a standard letter that goes like this:
Dear [public authority]
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of [public authority]’s handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
[GIVE DETAILS ABOUT YOUR COMPLAINT HERE]
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
Yours faithfully
[Your name]
So all you have to do is write something brief about why you are dissatisfied with the information provided in place of “[GIVE DETAILS ABOUT YOUR COMPLAINT HERE],” preview and check your message, and then send it. If the response to your request gives a reference number for future communications, paste that in – and if they give an email address for correspondence, add that in after “the person who conducts Freedom of Information reviews.”
It doesn’t actually matter very much what you write about why you are dissatisifed with the response. If they say they don’t have the information, and you don’t believe them, you could say that. If they say it would be too expensive to give it to you, and you don’t think that can be right, you can explain why. If they say the information is legally exempt from disclosure, and you think they are wrong, you could explain why you think that.
But really, the main thing is to get someone more senior to have another look at the decision – and to do the thing that you have to do to found a complaint to the Information Commissioner. If you write a persuasive argument and actually change their minds, so much the better – but it’s ok, too, just to write “I don’t accept that the information is exempt/too expensive to provide/ not held.”
I’ll do a worked example. Nottingham University has provided an unsatisfactory response to Ben Green’s request. So Ben could click on the “Actions” button, choose “Request an internal review,” and then complete the standard letter so that it looks like this:
Dear Nottingham University
Your reference 429001
Please pass this on to the person who conducts Freedom of Information reviews, info-requests@nottingham.ac.uk.
I am writing to request an internal review of your handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
Your answer to my request (3) claims that because the only communications received from Stonewall are generic communications sent to a large distribution list, it would be unduly costly to check all the inboxes in the University that might have received such communications. I do not accept that this is a real difficulty. I do not require to see multiple copies of the same generic communication as it has landed in many different inboxes: it will be perfectly adequate to examine a single inbox that is on the relevant distribution list, and provide copies of all the generic emails that have been received in that inbox.
I do not think your approach to this question is consistent with your duty under section 16 of the Freedom of Information Act to provide advice and assistance to me as a person who has requested information from you, and I would ask you to have careful regard to that duty in dealing with this application for review. In particularly, if you consider that taken literally my request would put you to excessive cost, but you can see a different way of formulating my request that would make it possible for you to respond in substance, then you should suggest that reformulation and offer to respond accordingly.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
Yours faithfully
Ben Green
If you have questions about how you should draft your request for an internal review, please post them here as comments, with a link to your request. I will do my best to answer them, or at least to answer enough of them to provide some general guidance. If in doubt, just write a very simple letter saying you are dissatisfied with the response, and want to request an internal review.
Many of the 850-plus Stonewall Diversity Champions are public authorities, which means they have to respond to requests under the Freedom of Information Act . So let’s ask them about their dealings with Stonewall – it only takes a couple of minutes.
My previous post suggested that Stonewall had gained an unhealthy level of influence over large employers, especially public authorities.
Many of the 850-plus Stonewall Diversity Champions are public authorities. That means they have to respond to requests for information under the Freedom of Information Act – which is how I was able to write in such boring detail (sorry) about Edinburgh University’s submission to the Workplace Equality Index.
One way of putting some pressure on public bodies to withdraw from these schemes is just to force them to reveal the detail of their dealings with Stonewall. So I’m proposing a simple campaign: let’s send all the public authorities on Stonewall’s list of “Champions” FOIA requests asking them for information. (Though I’m inclined to suggest leaving off the NHS at the moment, for obvious reasons.)
If you can spare a few minutes to participate, here’s what you do.
3. Go back to https://www.whatdotheyknow.com/. Type the name of your public authority into the search box. You may get a couple of results (e.g. searching for “GCHQ” returns “Government Communications Headquarters” and also “Intelligence and Security Committee”), but click on the name that best describes the one you’re looking for.
4. Scroll down the results page a short way to check that there hasn’t been a recent #DontSubmitToStonewall request made to that body. For example, if you search for “Northumbria University” and then click on the name of the body, this is the first thing you see:
So they’ve had a request already – they don’t need another. Choose a different public authority, and try the same thing again. You won’t have to scroll very far to be sure – any of these requests will have been made in the last couple of days.
(Stonewall’s list is helpfully divided into categories, and mostly it will be fairly obvious which are public authorities and which not: every single organisation categorised as “local government” is a public authority; none of those on the “consumer goods and retail” list is; most on “financial services” aren’t, but of course the Financial Conduct Authority and the Financial Ombudsman Service are. If in doubt, search on https://www.whatdotheyknow.com/ – if you find them, they’re a public authority; if you don’t, choose another.)
5. Once you’ve found a public authority that hasn’t yet had one of these requests, click on “Make a request” by their name.
6. The site gives you a blank request form starting “Dear [name of authority].” Underneath that, paste the following text:
This is a request under the Freedom of Information Act 2000 (FOIA). Please provide any information that you hold answering to any of the following descriptions:
1. Any application you made in 2019 or 2020 to be a “Stonewall Diversity Champion” or to be included on Stonewall’s “Workplace Equality Index,” including any attachments or appendices to those applications. Please redact personal details if necessary.
2. Any feedback you received in 2019 or 2020 from Stonewall in relation to either application or programme.
3. Any other communication you have received from Stonewall in 2019 or 2020 unless privileged or otherwise exempt from disclosure (but if you claim privilege or exemption in relation to any material, please say in broad terms what the material is and the basis on which you claim to be entitled to withhold it).
4. Full details of any equality impact assessment you carried out connected with any of these applications (including any equality impact assessment carried out prior to an earlier application of the same kind, if no further assessment was done).
5. Details of the total amount of money you paid to Stonewall (i) in 2019; (ii) in 2020, whether or not as payment for goods or services.
6. Whether you intend to continue your membership of any Stonewall scheme in the future, and if so which.
There’s also a box for a summary of your request above that, so paste in there:
Information about your dealings with Stonewall #DontSubmitToStonewall
Please do include “#DontSubmitToStonewall” to make it easy to find a complete list of these requests in the future, and also to help guard against the same authority getting lots of duplicate requests.
7. Ignore the warning that your request is getting long (it’s fine – it’s focused and perfectly fair), and click on “Preview your public request.” Check everything is in order – including the all-important hashtag. Once it is, click on “Send and publish your request.”
8. That’s it for now. I’ll post again in early March (when the responses to these requests should start coming in) with guidance about requesting an internal review, if your request is refused or not satisfactorily answered.
Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.
Stonewall is an LGBT charity and lobbying group that started small, edgy and rebellious in 1989. It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.
Stonewall’s employer programmes
Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme.
More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé; Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.
It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single oneof the top 100 employers on the Workplace Equality Index is also a Diversity Champion.
Qualifying for the Workplace Equality Index
So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers? Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”
The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections:
1. Policies and benefits
2. The employee lifecycle
3. LGBT Employee Network Group
4. Allies and role models
5. Senior leadership
6. Monitoring
7. Procurement
8. Community engagement
9. Clients, customers and service users
10. Additional work
Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for. The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.
Sampling the submission
Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks:
Does the organisation have a policy (or policies) which include the following? Tick all that apply.
A. Explicit ban on discrimination based on sexual orientation
B. Explicit ban on discrimination based on gender identity and gender expression
C. Explicit ban on bullying & harassment based on sexual orientation
D. Explicit ban on bullying & harassment based gender identity and gender expression
E. None of the above
The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies.
There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean. If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it.
The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.”
Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.
Question 4.5 asks:
Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?
The University describes the training:
A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.
Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.
…
We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.
This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around.
There are pages and pages of this stuff. The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.
Feedback
One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply. This sample from section 1 (“Policies and benefits”) is representative:
[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.
Submission without reservation
You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this:
You pay for lots of Stonewall training.
You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training.
You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way.
Stonewall set you a lengthy open-book examination on how well you’ve done that.
You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc.
Stonewall mark your submission and give you feedback on areas on which you could improve your compliance with their every demand, very likely involving more Stonewall training.
You do the same again next year.
It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?
Why are serious organisations full of serious grown-up professionals willing to submit to these time-consuming indignities?
What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?
You might think employers would discern a significant reputational risk – not only from being associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride.
But there are concrete legal risks too.
Judicial review of policies
If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies. (Though your staff may care; I’ll come to that shortly.)
But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review. You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.
In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court.
A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance.
In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.
Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”
These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be in than the reality of how the law is.
Judicial review of participation in Stonewall’s schemes
Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both.
A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review.
That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:
Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk.
As a public body, we should know what’s going on with the CPS.
Has Stonewall trained CPS?
In fact, thanks to M Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’ If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.” Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.
As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:
Has the organisation done any further work in the past year to improve the working environment for LGBT staff?
The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all functions, private or public.
In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion:
The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation.
The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.” Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well.
In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.
Discrimination claims
Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.
Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.
If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.
Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.
But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.
If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system.They are not entitled to do that:disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)
Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man.
There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.” It is the only equality policy the University has which is specific to a single protected characteristic.
Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff.
Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status.
In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women. And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.
Workplace health and safety obligations
Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.
Duties to service clients, service users etc.
The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful:
A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.
A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.
A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.
An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.
A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.
Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.
Conclusion
Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly.
If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.
But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm.
The decision of the High Court in Bell v & anor v The Tavistock & Portman NHS Foundation Trust & ors [2020] EWHC 3274 (Admin) has given rise to both jubilation and outrage. Detransitioners and their gender critical allies feel vindicated by judicial recognition that treatment of children with puberty blockers is experimental and dangerous; trans activists characterise the decision as an attack on the fundamental rights of all trans people.
The Court’s decision
On the face of it, given the scope of the decision, both reactions are surprising. The court didn’t actually decide that Keira Bell had been rushed into treatment that she wasn’t able to understand, or order the Tavistock to pay her compensation for the permanent damage to her body caused by the treatment she received. It didn’t even order the Gender Identity Development Service (GIDS) at the Tavistock to stop treating children with puberty-blockers, or to change the information it gave them before it started treatment. What it decided was that teenagers under 16 will very rarely have capacity to give informed consent to treatment with puberty blockers, and children of 13 and under almost never. And that even in the case of young persons of 16 or 17, it may be necessary to seek court authorisation to proceed with treatment.
But children often receive medical treatment for which they lack capacity to give their own informed consent. An infant needing an operation can’t consent: its parents typically consent on its behalf. A child of primary school age may be able to argue more fluently than its parents would always wish, but still may not be equipped to weigh up the pros and cons of serious medical treatments. So what’s the big deal, if children lack capacity to consent to puberty blockers? Why can’t their parents just consent on their behalf, in the usual way?
The Tavistock’s policy
Paragraph 47 of the judgment quotes from a letter sent by the Tavistock’s lawyers in response to the initial threat of litigation:
Although the general law would permit parent(s) to consent on behalf of their child, GIDS has never administered, nor can it conceive of any situation where it would be appropriate to administer blockers on a patient without their consent.
In context, it is clear that they are not saying merely they wouldn’t administer blockers to a child who didn’t want them: but that they wouldn’t administer blockers except to a child who had capacity to consent on his or her own behalf to the treatment. In other words, the Tavistock’s own policy was (and is) that parental consent isn’t enough: the informed, effective consent of the child patient is required. That’s why the court’s decision that children will very rarely be able to give such consent matters so much: if the Tavistock won’t act on the basis of parental consent alone, then children won’t be treated unless either they can themselves validly consent, or a court decides that the treatment is in their best interests.
What’s special about treatment with puberty blockers?
The question I find interesting here isn’t really a legal question. It is this: what is it that’s special about treatment with puberty blockers that makes the Tavistock think that parental consent isn’t good enough? If a child needs a vaccination to reduce the risk of a potentially serious childhood disease, parental consent is good enough. If a child needs a filling to deal with tooth decay, or an extraction to deal with an overcrowded mouth, the same. If a child needs surgery to pin a broken bone, the same again.
Parental consent is good enough for most medical treatment because its necessity or desirability can be established by objective evidence. Tooth decay and broken bones can be seen with an x-ray; the risks of mumps, measles etc. (and the benefits of vaccination) are well-established by epidemiology. But if a child with the body of a girl says she is so sure that she is really a boy that she wants to be treated with puberty blockers to ensure that she doesn’t mature physically as a woman, there no blood test, no visible symptom, no scan, no x-ray that can confirm her condition. How are parents, teachers, therapists and doctors to know whether she is truly trans (assuming for the purposes of argument that there is such a thing – or if even if there isn’t, at least so intractably dysphoric that radical body modification offers her the best hope of a flourishing life); or temporarily caught up in a teenage craze; or expressing distress in response to childhood abuse, homophobic bullying at school, or a traumatic bereavement or abandonment, or the pervasive sexism and misogyny of the society in which she is growing up?
One might think that these were the kinds of difficult questions with which clinicians would grapple earnestly before agreeing to set children on a path to medical transition and lifelong patienthood. What’s going on here? What are the causes of this child’s dysphoria? What are her chances of growing out of it with natural puberty? If treated, what are the chances that she will later regret the treatment?
Astonishingly, one would be wrong. Even more astonishingly, it seems that the clinicians who have guided the development of the GIDS would not even regard these as valid questions. Bernadette Wren, Consultant Clinical Psychologist at the GIDS until her retirement in 2020, posed herself these questions in a 2014 paper:
Can ‘postmodern’ ideas about the non-fixity and instability of gender serve the perplexed clinician? Can we forego the grounding of our ideas in demonstrable certainties? Operating with a postmodern notion of gender, can the clinician justify irreversible physical intervention?
Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents, Feminism & Psychology 2014, Vol. 24(2) 271–291
In the abstract of the same paper, she writes:
In particular, how do we justify supporting trans youngsters to move towards treatment involving irreversible physical change, while ascribing to a highly tentative and provisional account of how we come to identify and live as gendered? I conclude that the meaning of trans rests on no demonstrable foundational truths but is constantly being shaped and re-shaped in our social world.
[emphasis supplied]
This is consistent with Wren’s understanding of postmodernism, of which she says:
It argues that we cannot properly speak of objective and universal truths because it recognises that we can never stand outside the conceptual frameworks we are trying to explain.
In a later article Debate: You can’t take politics out of the debate on gender-diverse children, Wren candidly admits that there is little reliable evidence to draw on when making decisions about the treatment of gender dysphoric children:
In this field of practice… studies are still few and limited in scope, at times contradictory or inconclusive on key questions. Professionals and families must navigate the options with limited reassurance about how to proceed in the face of changing and challengeable clinical evidence.
Child and Adolescent Mental Health 25, No.1, 2020, pp.40-42
But that does not seem to her to be a reason not to give young people what they ask for:
[U]nder UK law, we have increasingly come to think that enabling young people to experience some forms of self-determining freedom is a social good (Alderson, 2017), an idea interlinked with the thesis that a measure of authentic self-knowledge can be achieved, even by children and adolescents. This is the permissive culture in which young people – including those who are gender diverse – may be allowed considerable freedom to make their own mistakes. Besides, young people today are entering an era of medical care when intervention on and into the body becomes increasingly commonplace. Twenty-first century medicine offers treatments that are supportive of identity projects as well as responsive to pathology.
[emphasis supplied]
Alarming though this is, it does at least make perfect sense of the GIDS’ unwillingness to accept parental consent as a substitute for the young person’s consent when treating children or adolescents with puberty-blockers: to do so would be fundamentally at odds with the philosophical underpinnings of the service. Parental consent would be rendered acceptable by a firm evidence base for the treatment proposed. But puberty blockers are not provided because there is convincing clinical evidence that they are needed (or even likely) to alleviate distressing symptoms or effect a full or partial cure for a pathology: on the contrary, it is admitted that the evidence base for treatment is thin tending to non-existent. The conclusion to the 2014 article that “the meaning of trans rests on no demonstrable foundational truths” goes further, suggesting that even a search for such evidence would be misconceived. Instead, treatment is provided because children and young people – who should be enabled to experience self-determining freedom, including the freedom to make their own mistakes – ask for it.
No evidence of benefit
It makes an alarming kind of sense of something else, too. The court in Bell repeatedly expressed surprise at the Tavistock’s inability to provide evidence about the effects and outcomes of treatment with puberty blockers, noting – in particular – at paragraphs 23 and 24 that it hadn’t been provided with the results of a research study started some nine years earlier at the Tavistock, which it had requested but been told was unavailable because one of its authors had yet to respond to issues raised in the peer review process. On the face of things, that was quite extraordinary: the study was centrally relevant to the matters discussed in the judicial review, and even if it was still going through the lengthy process of peer-review and hadn’t been finalised for publication, it undoubtedly existed in a near-final form which could have been provided to the court had the Tavistock chosen to provide it. (It was finally published on the day the High Court’s judgment was handed down.)
But if the service was run by postmodernist-leaning clinicians who regarded “truth claims” with suspicion and saw their task not as relieving the suffering of patients with distressing pathologies, but instead as facilitating their young clients in the pursuit of identity projects, what use would they have for clinical evidence?
The Tavistock will be invited – or sought to be compelled – to review its position in relation to whether to accept parental consent. In practice success on this action would remove, in many or most cases, the practical barrier to reatment posed by the Bell decision.
If the Good Law Project gets the High Court’s permission to pursue this, the likely result will be that the Tavistock is forced to explain – in detail, and in public – the reasons why it “cannot conceive of any situation in which it would be appropriate to to administer blockers on a patient without their consent.” That will shine further light on the absence of any convincing evidential basis for these treatments, and on the startling philosophical underpinnings of the GIDS’ practice. It promises to be a bruising encounter for both parties.
With thanks to Heather Brunskell-Evans’ Transgender and Body Politics, Spinifex 2020 for alerting me to Bernadette Wren’s writing.
Can children and young people give informed consent to being prescribed puberty blockers after a diagnosis of gender dysphoria? If so, what information do they need to give properly informed consent?
Introduction
Can children and young people give informed consent to being prescribed puberty blockers after a diagnosis of gender dysphoria? If so, what information do they need to give properly informed consent?
These were the important questions considered in Bell and Ors v Tavistock and Portman, with an interested party (NHS England) and interveners (UCH Trust, Leeds Teaching Hospitals Trust and Transgender Trend). It was heard, unusually for a judicial review, by three Judges including the President of the Queen’s Bench Division and a Lord Justice of Appeal.
The Claimants were a young adult who was prescribed puberty blockers by GIDS, and later cross-sex hormones, and a mother concerned about her daughter potentially being prescribed such drugs.The Defendant is the main clinic for the treatment of gender dysphoria in under 18s, known as “GIDS”. The NHS trusts who intervened are the hospitals which oversee the actual hormonal treatments, when patients are referred to them by GIDS.
What the Court was Not Deciding
This case has nothing to do with abortion in general, abortion for under 16s, or contraception. It has little to do with other forms of informed consent to medical treatment by under 18s, because of the very specific nature of gender dysphoria and its treatment. Gender dysphoria is a condition without physical manifestations, but treatment with puberty blockers causes physical changes that can be life-long and life-changing.
The court was not deciding whether puberty blockers for under 18s were a Good Thing or a Bad Thing. It was deciding whether GIDS’ own policy was lawful in light of the information and data available to GIDS.
Factual Findings Made and Facts Considered
The court considered witness evidence from many different people, including medical experts from GIDS, trans people under 18, and trans people over 18 who had previously been treated at GIDS.
In terms of GIDS’ own data and records, the court was clearly concerned that little systematic data was being recorded, considered and taken into account. For example, from 2011 to 2019, GIDS had no details of the ages of children and young people prescribed puberty blockers. It did not record co-existing conditions such as autism. It did not have data about the numbers of patients treated with puberty blockers who then went on to be prescribed cross-sex hormones or undergo surgery for dysphoria.
Surprising the High Court is not, in this context, a positive thing.
The court said more than once it was “surprised” that the Defendant did not collect this information. Surprising the High Court is not, in this context, a positive thing.
The court considered that the Defendant’s data and research did not distinguish between puberty blockers prescribed to younger children who were undergoing premature puberty, and puberty blockers prescribed for gender dysphoria to children and young people going through puberty at a normal age. The premature puberty use was the source of almost all the data in relation to puberty blockers.
On the Defendant’s own evidence, there was a paucity of data about the effects, benefits and disadvantages of treating gender dysphoria by puberty blockers. The UCL study which started in 2011 has still not published full peer-reviewed results. The court asked for such results, but did not receive them.There are not, apparently, any other comprehensive studies into such treatment. The interim paper produced by Dr. Carmichael, head of GIDS, “noted that there was no overall improvement in mood or psychological wellbeing using standardized psychological measures.”
For all these reasons, the court considered that the prescription of puberty blockers to those of a standard age for puberty as treatment for gender dysphoria was experimental.
The court also considered that the evidence, while not complete, indicated that a very large percentage of children and young people prescribed puberty blockers went on to take cross-sex hormones later. So a child’s consent to take puberty blockers could not be informed consent without an understanding of the overwhelming likelihood that it would lead to taking cross-sex hormones afterwards, and an understanding of the consequences of that decision.
The court considered, on the basis of the Defendant’s own evidence, that taking puberty blockers could not be said to be entirely reversible or without consequences. There was insufficient evidence about the consequences of long-term suppression of puberty, but there were possible risks for physical development (bone density, growth, height) and the psychological development which occurs during puberty. Data from children prescribed puberty blockers to prevent premature puberty did not assist in analysing this, because those children went through puberty at roughly the same time as their peers.
So a child or young person giving informed consent to taking puberty blockers had to understand and weigh the information about the likelihood of loss of fertility, loss of sexual function and enjoyment, and associated consequences as well as the risks to physical and psychological development.
Lastly, the court found there was a lack of clarity and consistency about the aim of treatment with puberty blockers, and how success could be assessed. There were references to a “pause”, or a time in which a child could think further and explore sex and gender identity. There were references to preventing distress and gender dysphoria caused by going through puberty in the child’s birth sex. There were also suggestions that it would be easier for a child or young person to transition through surgery after adulthood if puberty had not occurred.
If you don’t know what the aim of a treatment is, and don’t clearly have that aim in mind, it is hard to see how the success of a treatment can be assessed.
The Court’s Conclusions
The court decided that it was most unlikely that a child of 13 or under could understand, take in, and properly weigh the information about the effects and consequences of taking puberty blockers, including the likelihood of proceeding to cross-sex hormones. It was difficult to see how a child of that age could properly consider the issues of fertility, sexual function and pleasure, and life-long consequences.
The court’s conclusion was, therefore, that it was going to be very rare that a child was capable of giving informed consent to puberty blockers aged 13 or under.
The court concluded that 14 and 15 year olds were more mature, older, and it was possible that some under 16s would be capable of giving informed consent to treatment with blockers, but the court was “very doubtful” that many 14 and 15 year olds would be able to give such consent.
The legal position for 16 and 17 year olds in relation to medical treatment is different; there is a presumption of capacity. The court sounded a note of caution, however, stating that clinicians “may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court”: in other words, they may need to apply to the court to make a determination on a young person’s best interests. It is a warning to doctors prescribing such drugs that they must take great care.
GIDS and the Trusts were not criticised for the information they gave. The Court accepted that the written information to children, young people and parents tried hard to give full information that explained the potential consequences. The problem is not the information given but the ability of children and young people to understand and weigh it up.
In order to qualify for legal aid for family proceedings, women who have experienced domestic abuse must meet strict financial eligibility criteria, assessed on the basis of both their income and capital. This has led to women being denied legal aid on the basis of an interest in capital, usually the family home, which is jointly owned with the perpetrator of abuse, and which in practice they are completely unable to access.
In this case, GR had experienced serious physical, sexual and financial abuse from her ex-partner. She had obtained a non-molestation order without legal representation. At that hearing, on seeing her ex-partner for the first time, she vomited in court. She then sought legal aid in order to be represented in family proceedings concerning their children and in relation to the sale and division of the equity in the family home. At the time of her legal aid application her only income was Universal Credit. She was living in the family home with her two children, but was unable to borrow against the capital without her ex-partner’s consent. She had attempted to take out loans, but had been refused credit on the basis of her extremely low income. She had already sold jewellery and furniture to pay for limited representation in relation to an initial hearing concerning the arrangements for their children.
GR’s application for legal aid was refused on the basis of an assessment that she had a 50% interest in the value of the family home (disputed by her ex-partner), which put her well above the £8,000 threshold set out in the Civil Legal Aid (Financial Eligibility and Payment for Services) Regulations 2013 (“the Means Regulations”). Regulation 31 of the Means Regulations provides that in relation to the valuation of capital resources:
In so far as any resource of a capital nature does not consist of money, its value must be taken to be—
(a) the amount which that resource would realise if sold; or
(b) the value assessed in such other manner as appears to the Director to be equitable.
However, regulation 37 of the Means Regulations makes specific provision for capital in the form of an interest in land, and does not make provision for the equitable assessment provided for by regulation 31:
In calculating the disposable capital of the individual, the value of any interest in land must be taken to be the amount for which that interest could be sold after deducting, subject to paragraphs (2) and (3), the amount of any debt secured by a mortgage or charge on the property.
The case turned on whether the Legal Aid Agency could assess the value of GR’s share in the family home as nil on an equitable basis under regulation 31, or whether it was required by regulation 37 to value her share as the amount for which it could theoretically be sold. It was accepted that she could not borrow against the property, and that if she agreed to her ex-partner’s application to force the sale of the home, she would have agreed to the very thing that she required legal advice about. It was also accepted that if GR were to be granted legal aid, the ‘statutory charge’ would apply, which would mean that if she obtained any benefit, such as an interest in the home, as result of the proceedings, she would be required to repay some of the costs to the Legal Aid Agency. Any legal aid she did receive would effectively be a loan.
The Court heard that the Catch-22 position GR found herself in was a common one. The family solicitor who had helped GR apply for legal aid explained: “Whilst difficult to quantify, it is the case at Beck Fitzgerald that, on average, we cannot assist 1-2 clients per week in securing legal aid as the equity in the property they live in is considered by the Legal Aid Agency as an asset which they can access. This is irrespective of whether the property is occupied by the client and their children, thus providing a home and irrespective of whether the property is jointly owned by the client and the perpetrator of abuse. These clients are unable to take out loans, are on a low income and often, the question of sale/occupation of the family home is the subject matter of the dispute.”
The organisation Rights of Women also provided evidence of the way in which the financial eligibility criteria enable perpetrators of abuse to continue to exercise control through the family courts, explaining that: “It is well recognised that abusers will use any means they can to continue to control the victim of their behaviour following the end of the relationship. Preventing them from accessing legal advice would be an easy way to do so.”
The Court found that the Legal Aid Agency was wrong to say that it had no discretion to make an equitable assessment of the value of a capital resource, and that by taking that approach, some people on low incomes would be prevented from having fair and effective access to justice. In order to prevent that from happening the discretion in regulation 31 could be applied to the valuation of any resource of a capital nature, save for the valuation of money.
This means that in any case where an applicant for legal aid has an interest in a capital resource, the Legal Aid Agency will now have to assess that interest on an equitable basis, taking into account the applicant’s ability to access that interest, and their ability to represent themselves effectively. In domestic abuse cases, where it is established that women are disadvantaged in legal proceedings if they are forced to represent themselves against the perpetrator of that abuse, it will increase access to justice, and ensure that more women are able to access legal representation.
On 13 October, I published a short piece here entitled I’d like to have an argument, please. It was an invitation to any practising or academic lawyer who disagrees with my “gender critical” stance on the interaction of trans rights and women’s rights to enter into a relaxed and mutually respectful email dialogue with me, exploring our disagreement with a view to publication in due course.
Public statements decrying the toxicity of this debate are becoming routine, and there is some real justification for those laments. But there is a debate that needs to be had: far-reaching changes to the law are sought, and opposed by gender critical feminists as creating dangerous and undesirable incursions into women’s rights. We can’t find out who is right by silencing one side or the other as bigots: we need to test the arguments.
Lawyers, in general, are an argumentative crew – in court, in their workplaces, and over their dinner tables. In general you might think that robust but civilised public argument as a way of testing ideas wouldn’t be a hard sell to them. It is after all our thing.
But not on this subject, apparently. In my own circle, friends – including lawyers – who think I am wrong about this simply won’t talk to me about it.
So I issued the invitation publicly. The Legal Feminist Twitter account tweeted out I’d like to have an argument, please to its 16.3K followers several times over the days that followed its publication. I’ve emailed the link to colleagues whom I know or believe to differ from me on this, to ask them if they might engage, or know of anyone else who might. The Discrimination Law Association emailed the invitation to all its members.
The Employment Law Bar Association declined my request for help finding a candidate on the basis that they don’t “tend to publicise any individual members’ projects.” The Employment Lawyers’ Association decided not even to consider my request until after a working group on a related subject has completed its task.
Finally, from the Legal Feminist Twitter account, I tweeted to several of the big beasts of legal Twitter to ask them if they would amplify the message. With one honourable exception, they neither gave me the amplification I sought nor politely declined to do so; they just ignored me.
The response to my invitation – which has been widely circulated notwithstanding the failure of many of my efforts to get it amplified – has been a deafening silence.
This is a strategy feminists have met before. We say it politely; we are ignored. We say it again; we are ignored. We say it insistently; we are ignored. We start to get a bit cross; we are ignored. We yell. “Aha,” they say; “Bad faith! We can’t be expected to engage with you – you’re rude and screechy!” It’s a strategy men have used to sideline women since time immemorial. “TERF” is the new “harridan.”
One young barrister (whom I shall call Andrea) from a prominent human rights Chambers did respond. Since she is the only lawyer who has even done me the courtesy of trying to explain why she considers this project doomed, I’ll address her points in some detail.
Andrea compared my invitation to a picture of a man sitting behind a table with a banner reading “Male privilege is a myth. Change my mind,” and followed up:
I’m not really sure you can argue for freedom of debate, while dictating to the other side of that debate that they are not allowed to hold or express certain views you find distasteful…
This was peculiar, because there was nothing in my invitation that sought to dictate anything of the sort. On the contrary: much of the point of the invitation is to push back against widespread attempts – which have already met with some success, in particular in an employment tribunal’s decision (pending appeal) in Forstater v CGD – to place the views I hold beyond the limits of what it is permissible to say or even think.
When I emailed Andrea a first draft of this article for comment, she explained:
I read the whole premise of your introduction as being that the discussion needed to be of an appropriate and agreeable tone, meaning (I assumed) that if someone said the GC view was transphobic that would immediately be rejected as ‘not playing by the rules’ of the conversational contract. That is why I consider the invitation to be far from neutral, but to involve you dictating to the other side of the debate what they are allowed to express. Apparently, it is not “OK” in a civilised debate for me to say I believe a view to be transphobic. That doesn’t sound like open and fair discussion to me.
That didn’t make matters any clearer. I had said nothing to suggest that a discussion of whether the GC view was transphobic was off-limits: on the contrary, that is exactly the kind of question I was hoping to discuss. Andrea had read the call for respectful debate as in itself necessarily implying that I would seek to exclude certain valid questions. My original invitation had ended:
I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.
Andrea also took exception to the fact that no trans person was to be involved in the debate. When I countered that there were trans lawyers who could have come forward, she said that she wholly understood why a trans person would not want to have this discussion. This is a splendid bind: I must not have a public debate with one other person that touches on trans rights if the other person is not trans; but at the same time, I can’t reasonably expect any trans person to be willing to debate with me. Gotcha.
But even without the bind, it would be a bad point. It would be unsatisfactory if a public body or a charity or a Parliamentary committee were to discuss these matters without involving all stakeholders, but (as I’d have thought was tolerably obvious) I am none of those things.
Andrea added:
[T]here is something of a generational divide on this, meaning it is likely to be a junior barrister in debate with a senior barrister. This is professionally risky for someone trying to establish themselves at the bar in circumstances where potential leaders in cases are likely to disagree with you…
I am fairly senior, at a little over 25 years’ call, and reasonably established; I’m lucky to be a member of a good set of chambers. But if I’m an object of terror to any junior member of the Bar, they have chosen the wrong profession. We all have to be willing to disagree publicly and robustly with more senior members of the Bar on a regular basis; and – newsflash – there are barristers much scarier than me out there. Or if the point is that it might be career-limiting to take the gender uncritical position in public, that sits oddly with the readiness of so many young lawyers to do exactly that on Twitter.
In any case, although there is probably some correlation between GC feminism and maturity, there are plenty of senior lawyers who disagree with me on the subject. And as I had already pointed out: the exercise actually represents a much lower risk for a junior lawyer who stands to win “plucky beginner” credit whatever the outcome of the debate than for a prominent trans ally with an established reputation. Years ago, I worked at the Free Representation Unit, supporting volunteers at the very beginning of their careers in providing pro bono representation in employment tribunals. In those days, plucky beginners willing to take on senior juniors or even QCs were never hard to find. I doubt that’s changed.
So what’s going on here? Why won’t anyone have this conversation with me?
If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same?
Is it that gender critical views are so extreme or unusual that they don’t merit being taken seriously enough for debate? Far from it; they are mainstream. I used to amuse myself from time to time, at social events full of lawyers, by eliciting a belief in the biological reality of sex from senior, and socially conservative, male colleagues, and then acquainting them – to their bemusement – with the fact that this meant they were now officially Trans Exclusionary Radical Feminists.
Is it me? Am I just too terrifying an opponent to take on? I really don’t think so. My professional life would be one long pushover if that were so.
Or is it that lawyers are too peaceable, modest and publicity-shy to want to conduct a public argument on a topical subject? Really?
In answer to my first draft, Andrea said: “It does not indicate anything about the strength or credibility of a person’s views that they choose not to engage.”
That may be true of any given individual: this one is too emotionally engaged to relish a public debate; another simply doesn’t care enough about the issues; the next lacks capacity this month; the next but one genuinely believes that these are matters that it is indecent to debate; yet another would have loved to, and clears his throat to begin, but then recalls that he hasn’t cleaned behind his radiators in ages – and so on.
But it’s not one particular UK-based gender uncritical lawyer who has declined this debate, nor even a handful; it’s all the hundreds or more likely thousands who are aware of the invitation. There’s some force in play here more systematic than a series of unrelated impediments.
I’m driven to the conclusion that even those who espouse the non-GC view vociferously – whether inTwitter spats, blog posts or lengthy, heavily-footnoted journal articles – know at some level that their position is indefensible.
I’m a decent enough lawyer, but there are plenty better. I know what it is to be intimidated by the intellectual fire-power on the other side. Nevertheless I wholeheartedly relish the prospect of this debate: I am fearless of anyone, however distinguished or brilliant they may be, because I am so sure of my ground. The opposing positions are so riddled with logical fallacies, circular arguments and flat-out idiocies that none of my gender uncritical colleagues – not one single one of them – has the stomach for trying to defend them publicly in friendly rational dialogue with me. Moreover, the big beasts of legal Twitter whom I approached seemed not merely not to want to take part in the argument themselves: they didn’t want to do anything to help it to take place.
There’s a risk in saying that. “Aha!” they will say, “This proves what we suspected all along: you’re not approaching this in good faith. You don’t want the amiable respectful conversation you say you want at all – you just want someone to jeer at and score points off so you can look clever!”
So let’s look that one straight in the eye. Of course I like looking clever in public. Who doesn’t? Of course I like winning arguments. What lawyer doesn’t? Of course I am convinced that I am right – or I wouldn’t be trying to pick this fight. And on this subject, it is true that I can’t at present imagine how I could be persuaded otherwise. But I could be wrong. Believe me, I know that I am fallible. My factual beliefs have been changed by evidence before now, and my opinions by persuasive argument – and I sincerely hope they will be again. And I promise you this from the bottom of my heart. If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same?
If your argument is nonsense from beginning to end, #NoDebate is indeed your safest strategy. It’s an intellectually dishonest strategy that does our profession no credit at all.
Am I wrong? Well, the offer still stands.
This piece was originally published in The Lawyer on 23 November 2020.
The decision in the Johnny Depp libel trial extends to 585 paragraphs of text. It is not a judgment which is easily skim-read or which lends itself to cherry picked quotes. It is divided into sections: §1 – 37 recounts the background and procedural history; §38 – 46 sets out the law. §48 – §74 set out what the Defendant (the Sun) and the Claimant (Depp) each said about fourteen separate incidents (broadly, the Sun asserted that there was domestic abuse and Depp denied it). At §75 – §84 the ‘ordinary meaning’ of the articles is considered. §85 – §94 sets out the evidence which was heard. §95 – §106 sets out the background to the relationship between Depp and Ms Heard.
At §107 – §205 the judge considered a number of factors raised by the Claimant as to why Ms Heard should be disbelieved out of hand – attacks on her credibility. These were rejected, and the judge went on at §206 – §573 to set out each and every incident, the evidence on it, whose evidence he preferred, and why.
At §574 – §583 the summary of conclusions on the evidence as a whole are set out, and finally §584 – §585 gives the conclusion itself.
It is important when looking at the judgment to bear in mind that this is not Depp v Heard, but Depp v Sun Newspaper. That is to say – Amber Heard did not herself publicise the allegations thereby triggering the libel claim. She was dragged into the spotlight not to defend her own reputation, but as a witness in defence of the Sun. Though publicly vindicated, this process has not been one of her own choice.
It is also important to note that this was not a criminal case, although it did involve allegations of criminal conduct. The standard of proof was the civil standard of ‘balance of probabilities’ – was it more likely than not.
So what of the counter-allegations? Depp also alleged that Heard had hit him and produced audio evidence of an alleged confession. Were these simply ignored by the judge? The answer to that is no: these were raised and considered as part of the factors raised as an attack on Ms Heard’s credibility. Audio recordings by both were taken into account but viewed as less rigorous evidence than that which is tested in cross examination. Ms Heard accepted that she had thrown pots at him and also on one occasion slapped him, but said this was in self defence. The judge also expressly considered this at §191-2 and said:
It may be asked why Ms Heard’s record or non-record for violence is of any relevance at all. It may be said that the libel which the Defendants are alleging is true is that Mr Depp was violent towards Ms Heard. Why then is it of any relevance to investigate whether Ms Heard was violent towards Mr Depp? Mr Sherborne offered two answers to this. First, it was integral to the defence of truth that the violence used by Mr Depp had been unlawful or unjustified. If, for instance, the only violence which Mr Depp had used had been in defence of himself it would hardly assist the Defendants in establishing the substantial truth of their allegation that he was a ‘wife-beater’.
Second, it was Mr Depp’s case that it was not he, but Ms Heard who had been the violent party. She denied this was so, but, if his account was correct, that would reflect adversely on her credibility.
The Claimant’s case was not simply that he had only used violence in defence of himself, but that the episodes of abuse hadn’t happened at all. Looking at the incidents individually, we see that
Incident 1: allegations that JD repeatedly slapped AH in the face and knocked her to the floor. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all. Incident 2: allegations that he hit her in the face, shook her and shoved her in to the wall. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all. Incident 3: allegations that he smashed glasses and ripped her dress. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all. Incident 4: allegations that he kicked her to the ground and threw a boot at her. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
…. the rest continue in a similar vein. The incidents said to have been provoked by Ms Heard are Incidents 8, 9, 12 and 13 – four of the fourteen. For Depp to succeed, it was not enough for him to assert that she had once admitted a slap. He had to show that the Sun had not established that violence happened in any of the claims other than those said to be provoked by her, and also that her violence began the episodes rather than being in response to them.
In relation to each incident, the judge goes on to weigh up the evidence given by everyone involved and reach findings as to whether it did or did not happen. It is not the case that the judge did not accept that Ms Heard was ever aggressive – indeed she had accepted that in two of the incidents she had retaliated physically. In numerous of them there are what seemingly amounts to an admission by Depp in the form of an apology or text message following the event. It was the judge’s task to go through all of that evidence, hear what other witnesses had to say, and then reach a decision as to whether it was more likely than not that each incident had been proven by the Sun. Not every incident was found proved, but enough to prove the “substantial truth” of the article.
Much has been made on social media of a single line in the judgment: “It is not even of significant relevance to whether Ms Heard assaulted Mr Depp.” This line should be read more carefully than social media perhaps permits. It is a reference to whether the judge needed to make a finding as to who had left faeces on the bed. Depp alleged it was Ms Heard; Ms Heard denied it; it may have been one of the dogs. It is worth quoting the paragraph in full:
“Mr Depp’s belief that Ms Heard or one of her friends was responsible for leaving the faeces on the bed is relevant because (a) it led him to conclude that his marriage to Ms Heard could not continue and (b) it was the cause of part of the argument which subsequently took place on 21st May 2016. In my view, whether Ms Heard or one of her friends was in fact responsible is not important. It is remote from the central issue, namely whether Mr Depp assaulted Ms Heard. It is not even of significant relevance to whether Ms Heard assaulted Mr Depp. For what it is worth, I consider that it is unlikely that Ms Heard or one of her friends was responsible. Mr Depp had left that night for his property in Sweetzer. As long as he was away, it was Ms Heard who was likely to suffer from the faeces on the bed, not him. It was, therefore, a singularly ineffective means for Ms Heard or one of her friends to ‘get back’ at Mr Depp. Other evidence in the case showed that Boo (one of the two dogs) had an incomplete mastery of her bowels after she had accidentally consumed some marijuana.” [emphasis added]
In other words, “it” (meaning a finding as to who had left the faeces on the bed) was not of relevance to whether either Mr Depp had assaulted Ms Heard or as to whether Ms Heard had assaulted him. The meaning of this is absolutely not, as some have been led to believe, that the judge thinks that any assault by Ms Heard on Mr Depp is insignificant or irrelevant. It just means that if the judge had made firm findings as to who left the faeces on the bed, it would not have helped him to come to a decision on whether either of them had assaulted the other.
The judgment is lengthy and detailed. Each allegation seems to have been carefully assessed and reasons given for the findings made. The decision details a lifestyle which in a less wealthy litigant would at best be described as “chaotic.” In many regards it is almost repetitively similar to every account of domestic abuse heard in court: questioning by his barrister as to why she ‘went back to him’ alongside characterisation of the victim as a gold-digger and / or unstable, lies said to have been told by each party many years ago excavated and aired as proof positive that the other is an irredeemable fantasist. The unusual factor is that the public is able to see the reasoning given for each finding: most abuse trials are criminal trials in which the reasons for the jury’s findings are never disclosed.
Depp has indicated that he will seek leave to appeal.
