Troubling with Butler

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

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

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

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

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

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

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

… and oppose all forms of transphobia. 

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

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

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

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

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

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

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

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

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

We are systematically trained in fear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

… and we should not confuse the categories.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eh? The “medical determination of sex”?

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

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

Friday Round Up

It’s been a while since our last Friday round-up – here’s this week’s feminist legal news, plus a few highlights from the month.

In Scotland, Adnan Ahmed won his appeal against conviction. Ahmed was a “pick up artist” who made a career out of unsolicited approaches to young women, including two who were in school uniform at the time. Indicating a depressing lack of insight into the difference between “street harassment” and “a compliment,” the all-male appeal court held that “It does not seem to us that a polite conversational request or complement [sic] can be construed as threatening merely because it is uninvited or unwelcome.” They also had much to say about the Sheriff’s descent into the arena of cross-examination.

At Yew Trees hospital, which housed autistic women and / or women with learning disabilities, ten staff have been suspended after footage showing abuse was passed to the CQC. Police action appears to be pending.

Mirth among legal twitter from the judgment in Pile v Chief Constable of Merseyside Police, which was introduced in the first paragraph as looking at the “liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing.” This seems to have been a slightly facetious introduction to a case which looked at the balancing of a detainee’s right to consent to the removal of clothing and the police’s obligations to ensure her safety and dignity including the necessity of a male officer to check on her while she was in her underwear. The conclusion was that the practical needs outweighed her concerns about consent, but that is not quite how it was introduced. The judgment, while circulated as an example of judicial humour, carries an unfortunate note of contempt for drunken women. As to merits, someone had plainly granted permission, so it wasn’t entirely unmeritorious. Legal Feminist wonders whether an equally insensible male claimant would have been the subject of quite so much elbow-jogging amusement.

In Leeds, it appears that the council have decided to extend the “managed zone” in which prostitution is legalised. This is on the strength of the review document, which concluded that while the system failed from 2014-2018, the claimed improvements of 2019 justified extension. It will be interesting to learn whether or not Leeds have complied with PSED in making this decision. 

Barrister Alexandra Wilson has received an apology from HMCTS after being mistaken for a defendant three times in one day. BAME barristers being asked if they are defendants or interpreters is sadly not uncommon, and we hope this apology leads to real change. 

In sex and gender news, a busy period recently: 

In the case of Taylor v Jaguar Land Rover, the Claimant, who identified as gender fluid / non-binary and wore women’s clothing to work, had applied to the Employment Tribunal as a result of a course of harassment over a period of time, including insults and abuse. S.7 Equality Act 2010 defines the protected characteristic of “gender reassignment” as follows:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Claimant’s submission was that she was included within the protected characteristic of “gender reassignment” while Jaguar as the Defendant argued that gender-fluid or non-binary identities did not meet the relevant definition. Finding for the Claimant, the Tribunal awarded aggravated damages “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.”  Although this is a first-instance decision, and therefore not binding on any other court or tribunal, it demonstrates that the Employment Tribunal is willing to consider that the definition of gender reassignment should be broadly interpreted. Congratulations on a good win to Robin White of Old Square Chambers who was instructed for the Claimant.

Liz Truss MP announced this week that there would be no change to the substantive requirements to obtain a Gender Recognition Certificate. Applicants will continue to produce evidence of gender dysphoria. However the process will be made less expensive and waiting times will be cut considerably with three new gender clinics opening.

At the same time, the NHS announced that there will be an independent review, led by Dr Hilary Cass OBE, into gender identity services for young people. This follows the cases brought by Keira Bell and by Sonia Appleby relating to concerns at GIDS. We note that the first ‘no win no fee’ adverts by solicitors to represent negligence claims brought by detransitioners are already being seen.

The Department for Education has also published guidance on teaching Relationships and Sexual Health (RSE) clarifying that “You should not reinforce harmful stereotypes, for instance by suggesting that children might be a different gender based on their personality and interests or the clothes they prefer to wear. Resources used in teaching about this topic must always be age-appropriate and evidence based. Materials which suggest that non-conformity to gender stereotypes should be seen as synonymous with having a different gender identity should not be used and you should not work with external agencies or organisations that produce such material.” It is shocking that in 2020 it was necessary to clarify that girls can like engineering and trousers, but welcome guidance nonetheless. 

Transphobia, Feminism and the Liberal Democrats

By Audrey Ludwig, Solicitor and Tim Pitt-Payne QC

On Saturday 19th September, the Liberal Democrats published a statement setting out their understanding of what constitutes transphobia.  It is a remarkable document, deserving careful attention.

Debates about whether a particular view, person, or body is transphobic often misfire, because the participants are operating from unstated but differing definitions of transphobia; they talk past one another and make no progress.  In principle, a discussion about the meaning of transphobia could be useful and helpful. 

But the Liberal Democrat document is not intended merely as a contribution to wider social debate.  The online statement announcing its adoption made clear that it would be used to support the Party’s disciplinary processes.  In other words, individuals who are guilty of transphobic behaviour – as defined in the document – could be suspended from the party or expelled. 

The document is in three parts: a brief definition of transphobia; further discussion of that definition; and an appendix of examples.

The brief definition is this:

‘Transphobia’ is the fear or dislike of someone based on the fact they are trans. Transphobia, whether through words or action, may be targeted at people who are, or who are perceived to be, trans or trans allies.

In the subsequent discussion of this definition, we are told that the term “trans” is “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.” There is an express statement that people are not required to have undergone any medical or social transition to be considered trans, and a cross-reference to the definition of “trans” in Stonewall’s glossary.

Four non-exhaustive examples of transphobic behaviour are then given, some of which go well beyond what would be regarded as either unlawful harassment on grounds of gender reassignment or an objective threshold standard for hate crime.  The examples are:

* attempting directly or through advocacy to remove trans people’s rights;

* misrepresenting trans people;

* abuse of trans people; and

*  systematically excluding trans people from discussions about issues that directly affect them.

These are more fully explained in the appendix.

As to the first example, there is no further explanation of what type of rights are being referred to.  No doubt advocating changes in the law that were regarded as weakening the position of trans people – for instance, arguing that the conditions for a GRC should be more restrictive – would come under this heading.  But does this example go further?  Given the breadth of the document generally (see further below), it is likely that the term “rights” would not be understood solely in legal terms, but would also cover anything that trans people are currently able to do as a matter of practice.  For instance, arguing for the exclusion of trans women from women’s rugby would probably be viewed as “attempting to remove trans people’s rights”. 

The document goes on to distinguish between different levels of blame.  For genuine “errors and misunderstandings”, an apology or retraction will usually suffice.  However, repeat offenders should be dealt with more severely: “this is especially true if they have been challenged by others, and they have been pointed to resources to help them learn about trans rights and transphobia.”  In other words, re-education and a chance to repent are to be the first resort,  with the possibility of disciplinary action and expulsion to follow for those who persist.

The Appendix then sets out a number of further examples of transphobic behaviour, again making clear that they are not exhaustive. 

Under the heading “denying trans people’s gender identity or refusing to accept it”, there are references to deadnaming, misgendering, and mockery, followed by this passage:

Using phrases or language to describe trans people which are designed to suggest that trans people are a separate category of person from the gender they identify as or that their gender identity is not valid. Current examples include referring to a trans woman or non-binary person as a “biological man” or a trans man or non-binary person as a “biological woman”, which eradicates the trans person’s gender identity in favour of their biology at birth.

The first sentence is clearly intended to enforce the orthodoxy that trans women are women and trans men are men.  Any deviation from this – for instance, “trans women are not literally women, but (with limitations) ought to be treated as if they were” – would doubtless be seen as treating trans women as a separate category from the gender with which they identify. Taken at its highest, it could be said that this definition treats both the Equality Act and Gender Recognition Act as “transphobic”, since both contain provisions identifying circumstances where trans people are treated as a separate category.

The second sentence is even more striking.  In some contexts, it requires the denial of simple biological fact.  This is the case, even if you believe that it is possible for a human being to change their biological sex – given that very many trans people will have undergone no medical transition whatsoever, as the document itself expressly recognises.  To say that a person, or a group of people, identify as female but are biologically male is not only a factual statement, it is in some contexts a highly relevant statement: for instance, when considering how they should be housed within the prison estate, or whether they can fairly compete in sport against natal women.  Of course there are contexts in which to refer to biological sex would be hateful:  just as, when adoptive parents proudly describe their children’s achievements, it would be hateful to respond, “But you’re not their biological parents.”  But in some contexts – for instance, assessing the risk of inherited health conditions – biological parenthood is relevant:  and likewise, biological sex.

Given the way in which this paragraph is drafted, it is hard to see how there could be any meaningful advocacy of gender critical views within the Liberal Democrats.  In particular, it is hard to see how one could either oppose gender self-ID, or advocate for maintaining  sex-based rights or single sex spaces and facilities, or for keeping the provisions in the Equality Act that make such things possible.  The document therefore effectively requires certain policy positions to be supported, on pain of a finding of transphobia and potential expulsion.  Dissent is to be rooted out, not by reasoned discussion and debate, but by the exercise of power.  It is authoritarian, and illiberal, for a party to close down internal debate in this way on issues of live political controversy.   

Under the heading “misrepresenting and excluding trans people”, one finds this example:

Making mendacious, dehumanising, demonising, or stereotypical allegations about trans people or their cisgender allies. This includes spreading the idea of a “trans conspiracy” which asserts undue influence over media or government or claiming that cisgender allies support trans rights initiatives out of fear or bribery rather than a genuine belief that trans rights are human rights.

There is a sad irony about the final sentence.  The very existence of this document will foster the making of such claims.  When Liberal Democrats advocate for trans rights, they can be expect to be met with the retort, “you’re only saying that because your party says that you must”. 

In all of this discussion, there is a glaring omission.  At no point is there any recognition of any potential conflict between the rights and interests of trans people and of natal women. Dealing with competing rights is a familiar aspect of human and equality law: for instance, a policy benefiting one protected class may indirectly discriminate against another, requiring a balance to be struck.  The document allows no space for feminist advocacy that recognises the need for such a balance.  There is no acknowledgment whatsoever that campaigning against self-ID, or for sex-based rights, can be motivated by something other than prejudice or bigotry.  The implied message of the document, therefore, is that when the interests of women come into conflict with those of other groups, then it is for women to give way without question or complaint.  Not only is this an illiberal message:  in its practical effect, it is a strikingly misogynist one.

Self-ID dropped, says the Sunday Times

News from the Sunday Times that the proposals to amend the Gender Recognition Act to allow a change of sex on a birth certificate on application (“self-ID”), in place of a dysphoria diagnosis, have been dropped, replaced by a promise to reduce the current £140 fee.

There has been enormous controversy around the proposals, which gained far more public interest than most legal reforms when Stonewall called not just for self-identification but also for the abolition of single-sex exceptions to the Equality Act 2010. These represent the strides made over the twentieth century for women to access public life, public space, spaces in which to recover from male violence, and sports, among others. Needless to say, many women’s groups were aghast at the prospect of these exceptions being removed and a return to the “unisex” – in practice, male – spaces of the nineteenth century.

There was also disquiet over the possibility of the process being abused, and of the practical obstacles to women’s groups distinguishing between a person who identified as (but took no steps to look like) a woman, and a man. Such instances might not be common, but the law must cater responsibly for the uncommon but reasonably foreseeable.

Perhaps now that there is clarity over self-ID, there is scope for truly radical legislation and guidance capable of support across the feminist and transgender communities. We could start with proposals for CAMHS funding to be doubled; mental health support for adults to be provided within a strict six month window; improvements to the public sector’s adherence to PSED to ensure quality Equality Impact Assessments are undertaken; free legal support for anyone who has been unlawfully discriminated against by an employer; the abolition of gendered work and school uniform; and access to free education for young adults whose school-age education was disrupted by gender difficulties or sexual harassment.

Discrimination: Only Unlawful if It Is Unlawful

Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)

My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder. 

Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?

Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.

Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.

Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy. 

But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.

“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.

“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.

“This presents a clear safety risk when transgender women play women’s contact rugby.”

This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”

But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic. 

So a useful list of things to note when initially considering if something is unlawful discrimination:

Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.

Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.

Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination. 

These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more. 

Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.

Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment. 

So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team. 

However, there is an exception allowing for single sex teams. S195 Equality Act says :

Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination. 

Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex. 

Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.

So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.

Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.

‘Trans customers: A guide for door supervisors’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Meshed Up: The Treatment of Women Following Mesh Surgery

Victoria Phillips, partner and head of employment rights (client relations) at social justice law firm Thompsons Solicitors, discusses how women have been treated following complications from surgical mesh.

Over the years, there has been growing awareness and press coverage surrounding the issues of surgical mesh, particularly following the publication of the Independent Medicines and Medical Devices Safety Review on 8 July 2020, led by Baroness Cumberlege. The First Do No Harm report looked into three medical scandals: primodos, a hormone pregnancy test associated with birth defects that was withdrawn in the 1970s; sodium valproate, an anti-epileptic drug, which can harm children during pregnancy; and vaginal mesh implants, a cause of unbearable pain and life-long complications. 

We represent more than 200 women in vaginal mesh surgery claims so, in terms of the review, our focus has always been on this medical intervention. But the commonalities that bind the three are far more staggering than their differences. The review had many overarching themes but the concerns of female patients being ignored by health professionals was a significant common denominator, which exposed an institutionalised inability for the healthcare system to listen to women.

At Thompsons Solicitors, we’ve witnessed how male surgeons patronise female patients and dismiss legitimate concerns in a way that we’re convinced would never happen if the patient was a man. There has been an overriding  paternalistic approach to female issues and patients have had no choice but to trust their surgeon, despite their body telling them something quite different. 

If mesh was to be inserted anywhere near male sexual organs, I believe there would have been rigorous and comprehensive pre-market testing before it was even hinted at as a potential treatment option. If there was even a slight risk to a man’s ability to function sexually , mesh probably would have been dropped far sooner, or more likely, never considered an option in the first place. 

It begs the question that should a man have been put in the same position, would he have been given all of the necessary information? Would he have been listened to when he voiced concerns about the pain he was feeling after his mesh surgery? Would his medical team have looked into the issue thoroughly and found a suitable alternative? Looking at the findings of the review and speaking to our clients, the answer is a resounding yes. Instead, women were told it was “all in their head”, or part of the menopause, and often referred for counselling in lieu of any effort being made to discover the true cause of their agony. 

Many who had mesh surgery didn’t experience issues until years later, but some reported pain and complications immediately after regaining consciousness from their surgeries with assurances it was completely normal and in time would wane. For thousands of women, it never did. They spoke to their GPs, numerous surgeons and other healthcare professionals but were often dismissed  when they suggested their pain was from mesh. One client recalled her surgeon telling her parents she was inventing her pain because of school-related anxiety. That client has since been told the rectopexy surgery she had at just 15 years old, which has left her self-irrigating every night since, was unnecessary. She must continue to self-irrigate for the foreseeable future, unless she agrees to have a colostomy bag. She is just 22 years old. 

The review team heard hundreds of accounts across the country on all three health scandals and Baroness Cumberlege summed it up by saying she “couldn’t believe that people had gone through so much agony and suffering and had been ignored” and that “much of this suffering was entirely avoidable.” 

The life-changing disabilities our clients have suffered from mesh implants has been heart-breaking to see. There has been a systematic failure with a lack of warning from both the manufacturers and the surgeons and hospitals who carried out the operations, without adequate consent. When they tried to complain, our clients faced rejection and belittlement while being wracked with pain. 

Baroness Cumberlege didn’t pull any punches in her review. The changes she called for are too late for those we represent, but they offer the possibility of real reform. This is not just about the NHS. Her recommendations must equally apply to the private healthcare sector, which is every bit, if not more, complicit. 

An apology to the women and men who have suffered, as well as their families, is as welcome as it is overdue, but it won’t bring back the people our clients once were or the childhoods or relationships they have lost. 

To ensure this is not a further slap in the face for our clients, and others affected, the promised changes must be swift, real and resourced from new money, not recycled funds taken from other parts of the health service.

What those who have suffered for so long deserve is decisive action that leads to real change. And that must start without delay.

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

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

What did the employment tribunal decide? 

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

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

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

The tribunal dealt with the latter point shortly: 

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

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

Did the employment tribunal get it right? 

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

Sex discrimination, or gender reassignment discrimination? 

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

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

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

Was there a detriment?

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

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

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

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

Was there a valid GOQ defence? 

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that  only a misanthrope could oppose, or is there more to it?   

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may  be repercussions for failing to remember a colleague’s preferred pronouns. 

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration. 

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes. 

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun. 

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply,  aligning themselves with a political position they disagree with;  or else reveal their political views in the workplace, which carries  a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason.  There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable. 

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex. 

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened. 

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32). 

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further. 

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving  its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise. 

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex. 

Does the law say that trans women are women?

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

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

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

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

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

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

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

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