Safeguarding Children

The Equality and Human Rights Commission has published a long-overdue revision of its technical guidance for schools. Technical it may be, but it relates to a school’s fundamental obligation – safeguarding the children in its care. So far as it relates to schools’ responsibilities in relation to children who assert a trans identity, it is a considerable improvement on its predecessor; see https://sex-matters.org/posts/updates/what-is-new-in-the-ehrc-guidance/ for a clear and accurate account of the changes. 

Barrister Robin Moira White, writing on the website Translucent, is unimpressed with the new guidance.

White starts by noting, correctly, that the law has not changed: anything that was unlawful before the new guidance was issued remains unlawful. The piece accurately quotes the Equality Act’s definition of the protected characteristic of gender reassignment, and notes that it is possible for schoolchildren to have that protected characteristic. After that, the piece rapidly parts company with reality, largely because it works backward from the end it seeks to justify.

The meaning of “sex”

There is live litigation about whether “sex” in the Equality Act means “sex (as modified by operation of a GRC, where one has been granted)” or simply “literal sex”. Both of those possibilities are plainly arguable: Lady Haldane in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90 found that it meant the former; the appellant will argue on appeal next month that it means the latter. But White proposes a third possibility: that “sex” in the act means the “acquired gender” of those who have done everything they can to align their physiology with their gender identity; and that since in practice children cannot normally undergo surgery at all, or cross-sex hormone treatment before the age of 16, children might meet that standard through “social transition” alone. 

The first step in this arguments rests on the decision of the House of Lords in Chief Constable of West Yorkshire Police v A ( No 2 ) [2005] 1 AC 51 (at any rate, this appears to be the case meant when the author cites “A v Chief Constable of West Midlands” ). In A, the House of Lords felt constrained by the Equal Treatment Directive to find a way of giving legal recognition to the extreme steps that the claimant had taken to achieve a female-looking body before the Gender Recognition Act 2004 had become law.  A is an interesting moment in legal history, but it was a brief moment: soon after, Parliament enacted the Gender Recognition Act 2004, which came up with a different solution to the problem. 

But even if A had not been superseded by legislation, the next step in White’s argument is even more optimistic. In A, Lord Bingham said: 

“[E]ffect can be given to the clear thrust of Community law only by reading ‘the same sex’ in section 54(9) of the 1984 Act, and ‘woman’, ‘man’ and ‘men’ in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender.”

White suggests that because children cannot in practice do much to remodel their bodies so that they look more like the opposite sex,  simply presenting themselves differently and asking others to use counterfactual language about them may amount to doing all they possibly can to “transition”, and therefore the law will see them as having literally changed sex even without surgery and hormone treatment. But even accepting that a post-operative transsexual might be “visually and for all practical purposes indistinguishable” from a member of the opposite sex (though one does have to wonder what practical purposes Lord Bingham can have had in mind – not, presumably, the practical purposes to which sexed bodies are most obviously adapted), a child with an unaltered body certainly cannot meet that criterion. 

White says, “this proposition remains to be tested in court”. This is true; but only in the sense that a great many self-evidently false propositions about the law remain to be tested in court. 

“Misgendering”

Here White repeats the zombie claim that a failure to pretend that a person asserting a trans identity has changed sex is direct discrimination on grounds of gender reassignment: “referring to a trans pupil by the name or pronouns they have rejected would clearly appear to be subjecting them to a detriment by reason of their protected characteristic and so unlawful direct discrimination”. 

This is wrong, and obviously so. If a school refers to all pupils by the pronouns appropriate to their sex, it is not singling out children who say they have a trans identity for special treatment – it is simply applying the same rule to everyone. That may be indirect discrimination, but it is certainly not direct discrimination on grounds of gender reassignment or any other protected characteristic. 

White touches on indirect discrimination, saying “A practice of referring to all pupils by birth pronouns or names would appear to be a practice disadvantageous to those with the protected characteristic of gender reassignment and so unlawful indirect discrimination.” This treats disadvantage as self-evident, and skips over the crucial question of justification entirely. 

Disadvantage is not self-evident. The rule may be said to be a practice that puts children with the protected characteristic of gender reassignment at a particular disadvantage compared to other children, but that in itself is a claim that would need to be established by evidence. There is little or no evidence that the experiment of “social transition” is beneficial for children, and mounting evidence that it may be harmful, both by locking in a cross-sex identity which might otherwise have resolved with puberty, and by contributing to the spread of cases of gender dysphoria by social contagion. Making the question of “particular disadvantage” an issue in legal proceedings could have consequences for which the sex realists would have more relish than their sex-denialist opponents. 

A provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared to others is only unlawful indirect discrimination if it cannot be shown to be a proportionate means of achieving a legitimate aim. White fails to acknowledge this, going straight from an unexamined assumption of particular disadvantage to a conclusion that the practice must be unlawful. But the justifications for a policy of truthfulness about sex in a school are many, and obvious, particularly once one pays attention to the rights and interests of the other children in the school. An indirect discrimination claim about “misgendering” is unlikely to succeed. 

Toilets and changing rooms

The law on toilets and changing rooms is clear. Schools are required to provide separate single-sex facilities for boys and girls over the age of 8; if they let some boys use the girls’ or some girls use the boys’, they will have (unlawfully) made those facilities mixed sex. There is no ambiguity here at all. 

White claims that excluding a child with a trans identity from opposite-sex facilities is highly likely to be direct discrimination, and failing that unjustifiable indirect discrimination. 

Both claims are wrong. It is not direct discrimination to apply the same rule (“you may only use the facilities provided for your own sex”) to everyone; there is no different treatment of children asserting a trans identity that could provide a basis for a direct discrimination claim. It is not because a boy who says he is a girl has the protected characteristic of gender reassignment that he is excluded from the girls’ toilets, but because he is a boy. 

As for indirect discrimination, White says that justification would be difficult if there is no evidence of “inappropriate behaviour” in the use of toilets or changing rooms. That misses the point. Single-sex spaces are not entirely or even mainly about safety: they are about privacy, dignity, autonomy, and boundaries. Women and girls are entitled to bodily privacy from men and boys. Men and boys do not become entitled to violate that privacy by a record of good behaviour, nor by declaring a trans identity; nor even by the two combined. Men and boys too are entitled to privacy, dignity, autonomy and boundaries, something White overlooks in the desire to find a justification permitting those of the male sex to enter spaces needed by those of the female sex.

In any event, schools in this situation have the most unanswerable justification imaginable: they have to keep toilets and changing room single-sex because that is the law. If they let boys into the girls’ or vice versa, they will be in breach of their obligation to provide segregated toilets and changing rooms. They will also likely be in breach of their duties to safeguard the children in their care.

Conclusion 

White’s piece for Translucent is unlikely to persuade anyone who understands the law in this area. But in the vacuum left by an absence of government guidance, such ill-informed and tendentious writing risks leading schools into serious error. 

The author is a lawyer and Chair of Trustees of a girls’ primary school.

When the truth offends 

Naomi Cunningham and Michael Foran

Speaking at a fringe meeting at the TUC this week, Jo Grady, the general secretary of the University and College Union (UCU) said (as reported in the Telegraph):

“whilst it’s clear that gender-critical beliefs are protected, the form of expression isn’t … You might have freedom of speech, but you don’t have freedom to offend … that’s one of the things that we try and educate our members about quite a lot.”

This betrays a misunderstanding of the law. The right to freedom of belief under article 9 of the ECHR  explicitly protects the manifesting as well as holding of beliefs; and the right to freedom of expression includes the right to say things that are offensive, shocking, or  heretical to current orthodoxies. Academics in particular are granted heightened protection in their expression, precisely because academic freedom necessitates the freedom to pursue truth, even when social and institutional pressure seeks to silence it. 

The legal framework

Article 9 ECHR provides: 

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance. 
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 ECHR provides:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has been explicit that the protection of these rights is foundational to democracy. For example, in Sahin v Turkey (2007) 44 EHRR 5, [104], the Court concluded that 

“freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.” 

A similar commitment can be found within domestic law. For example, in R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ noted that 

“A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”

This position was neatly summarised by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]: 

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”

The importance of political speech — the ability to discuss public policy, law, governance, and rights — has been particularly emphasised as necessary for democracy. In R (Prolife Alliance) v BBC [2004] 1AC 185, Lord Nicholls stressed that 

“Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts”

Similarly, the European court of Human Rights in Vajnai v Hungary [2008] ECHR 1910, has noted that there is “little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest.”

There is a wide latitude as to the manner in which such views are expressed. In De Haes and Gijsels v Belgium [1997] 25 EHRR 1, the Court observes that 

“Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community… it must be remembered that Article 10 … protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”

As Jo Grady notes, Forsater v  CGD Europe [2019] UKEAT 0105_20_1006 establishes that gender critical views are protected as philosophical beliefs for the purposes of the Equality Act. They engage both Article 9 and Article 10 ECHR and are considered to be worthy of respect within a democratic society. Because they engage these rights, their expression or manifestation is also protected, and this is so even where such expression is offensive. In R (Miller) v College of Policing [2020] EWHC 225 (Admin), Knowles J (at first instance) said:

“The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1) … in the Article 10 context, special protection is afforded to political speech and debate on questions of public interest.” 

Comment

It is possible that the confusion arises from the fact that the right to hold a belief and the right to manifest it do not attract exactly the same protection. The former is absolute; the latter is qualified. This means that, as recently discussed by the EAT in Higgs v Farmor’s School & anor [2023] EAT 89, not every expression of a protected belief is protected.

Nevertheless, there is a strong presumption against interference with the manifestation of religious or philosophical belief. The onus is on those wishing to curtail the expression of protected beliefs to establish that it is necessary to achieve one of the aims specified at article 10(2), and that the means used are proportionate. 

These questions are fact-sensitive, with few hard rules. One thing that is certain is that the law takes freedom of expression seriously, and in particular takes account of the chilling effect that any interference may have on the ability of others to exercise their rights; see R(Miller) v The College of Policing [2021] EWCA Civ 1926): 

“The concept of a chilling effect in the context of freedom of expression is an extremely important one … when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”

The legal problem is where precisely to draw the line between protected speech, and speech  so grossly offensive that interference can be  justified. That line was not crossed by Harry Miller’s “opaque, profane, or unsophisticated” tweets; it is unlikely to be crossed by academics and scholars speaking about biological sex or its importance in political or social life. Academics and those who represent them can rely on a strong presumption that  manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression. 

Conclusion 

Academic freedom in the UK (and many other parts of the world) is under threat from across the political spectrum. Instead of meeting that threat and defending academics,  many institutions have been dismayingly ready to acquiesce in or even encourage the destruction of academic freedom. In particular, a union for academics should be knowledgeable about its members’ rights, and quick to defend them when they are attacked. The unflinching pursuit of truth is the beginning and end  of academic integrity and the primary purpose of any institution seeking to represent scholars and their interests. 

Within academia, only truth is sacred. Sometimes truth offends. So be it.  

Dr Michael Foran is a Lecturer in Public Law at the University of Glasgow.

Barristers: read the small print

FreeBar describes itself as “a network of LGBT+ people and allies who work at and with the Bar”. It came into being in 2016, and remains small, with an annual income of less than £5,000. Its trustees are Alice Brighouse (Matrix Chambers), Caroline Harrison KC (2 Temple Gardens), Cameron Stocks (Gatehouse Chambers). Two treasurers, Conall Patton and Joyce Arnold (both of One Essex Court), manage its finances. 

The FreeBar Charter

The organisation’s flagship initiative is its “Freebar Charter”, launched in November 2020. Barristers’ chambers are invited to sign up in order to signal to the world “that they are (or are working towards becoming) an LGBT+ inclusive organisation”. 

In nearly 3 years, the Charter has attracted a total of 9 signatories. Only two of the organisation’s trustees have managed to persuade their own chambers to sign. 

The Charter comprises 11 commitments. The first calls to mind Tom Lehrer’s Folksong Army: 

“We are an LGBT+ inclusive and welcoming organisation. We welcome all people, regardless of sexual orientation or gender identity.”  

Things go rapidly downhill after that. I won’t comment on all the pledges, but a few merit attention.

No. 2 reads:

“We always challenge LGBT+ phobic language or behaviour, whether from anyone in our organisation, or directed at anyone in our organisation from anyone dealing with our organisation.“

To the casual observer, this might also seem to be in “motherhood and apple pie” territory. But the devil’s in what’s meant by “LGBT+ phobic”. We don’t find a definition anywhere on the FreeBar website. I suspect the intention is to give the impression that if you want to know the precise limits of this particular mortal sin, you are already in terrible spiritual danger. 

If the definition turns out (as such definitions often do) to include arguing that sex is real, binary, immutable and sometimes matters, this promises get barristers’ chambers into trouble with equality law; see Forstater v CGD, Higgs v Farmor’s School. 

No. 4 reads: 

We will ensure that by DATE our]/[Our] (delete as appropriate) internal policies and governing rules and procedures use only gender-neutral language, do not discriminate on LGBT+ grounds and are explicitly inclusive of those who identify as LGBT+.

A set of chambers which rewrote its maternity and parental leave policies to leave out feminine pronouns and words like “mother”, “maternity”, “breast-feeding” etc would create an unfortunate impression that it thought the erasure of women an acceptable price to pay for “trans inclusion”.

No 5 reads: 

“We have a policy on transitioning at work applicable and available to everyone in the organisation.”

A note at the bottom of the page reads “Point 5: FreeBar can provide you with an example Transitioning at Work Policy if you would like it.” I requested sight of such a policy about a year ago. FreeBar is small, and some of the delay since then has been explained, and is for good reason. Nevertheless, by now I feel driven to the conclusion that those who have drafted the policies offered in this way are feeling some reluctance to have them publicly analysed. If, for example, they advise that anyone who asserts a cross-sex identity must be allowed to use single-sex facilities for the opposite sex, that will lead chambers into acting in breach of the Workplace (Health, Safety and Welfare) Regulations 1992. 

No. 7 includes “we respect everyone’s choice of their own pronouns”.

Questions arise. Does this mean “we will reprimand and if necessary discipline anyone who declines to use others’ preferred pronouns”? Is this just cross-sex or plural pronouns on demand, or does it also apply to neo-pronouns? Does the rule apply to everyone, or just some people? If I were to declare my second person singular pronouns as “thou/thee” , would my colleagues be required to use those to address me – and do their best to conjugate verbs to match, too? Or does it only apply to preferred pronouns adopted in good faith, and would the assumption be made that I was trolling? But if the latter, how do you tell whether a man who says he’s a woman is in good faith or merely trolling? Does it depend on whether he bothers to cross-dress, wear make-up etc? 

Whether and if so in what circumstances employers and workplaces are entitled to require the use of preferred pronouns is a contentious question on which there is as yet no clear guidance in the case law. Mackereth v DWP provides some indications in the context of employees’ interactions with service-users, but whether an employer or other workplace is entitled to compel the speech of colleagues among themselves, subordinating the article 9 and 10 rights of dissenters to claims to “politeness” of their trans-identifying colleagues, remains to be seen. 

A note to point 8 suggests advertising vacancies on Stonewall’s “Proud Employers” platform. After last year’s judgment in Allison Bailey v Stonewall Equality Ltd, Garden Court Chambers et al, prudent chambers may feel some hesitation about making a public declaration of allegiance to Stonewall’s values in this way. 

No. 10 ends:

We have/we would welcome the establishment of an LGBT+ network in our organisation. 

That’s not a problem in itself, obviously. But have they thought it through? Do they realise that they are going to need to be equally welcoming to the establishment of a gender critical network, or risk unlawful discrimination on grounds of belief? Would it perhaps be better not to encourage members of a set of chambers to perform their political allegiances in the workplace at all?

Visibility page

FreeBar’s “Visibility” page profiles 44 individuals (mostly barristers but a few chambers staff and one High Court Master) from 26 different sets of chambers. It is striking that only 7 of those 26 sets are represented among the signatories to the Charter. 

Barristers read the small print

The FreeBar initiative seems to have fallen very flat. This makes me feel proud of my profession. The exhortation in the title of this blog can be repurposed as an observation: in general, barristers read the small print. 

Limitations on domestic violence protections in the Immigration Rules justified, Court of Appeal holds


In the recently published case of R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439, the Court of Appeal has looked at the domestic violence concessions in the Immigration Rules.

What are the domestic violence concessions?
These were originally introduced in 1999 following a seven year campaign by Southall Black Sisters. Those who enter the UK as spouses of permanent residents or British citizens have “no recourse to public funds” and must be self-sufficient. They are granted five years leave to remain (two prior to 2012) after which they may apply for indefinite leave in their own right. The problem with this is that if a woman enters the UK only to find that her husband is an abuser, she faces an impossible choice: remain in the marriage for the requisite five years, or leave and face destitution and loss of immigration status. The 1999 concession allowed a victim of domestic abuse in these circumstances to apply for indefinite leave before the end of the spouse visa. The concession was replaced in 2002 with paragraph 289 of the Immigration Rules, and that in turn was replaced again in 2012 by the “DVILR” section of Appendix FM to the Immigration Rules. 

What this did not solve was the issue of destitution, particularly during the period where an applicant was preparing the application and while it was being considered, which could take some months. In 2012 the “Destitute Domestic Violence Concession” (DDVC”) was introduced whereby a victim of domestic abuse could apply for a three month bridging visa which would allow her access to public funds and the right to work while she prepared her application and applied for indefinite leave under DVILR. 

The current domestic violence rule can be found here and the crux of it is that 

The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

What’s the issue?
The eagle eyed reader will have spotted that the rule is no longer restricted to partners of British citizens and those who are settled. The rule is now also available to partners of refugees and to partners of people in the UK with what is known as “pre settled status” – European nationals who did not gain fully settled status. 

The reason for extending it to partners of refugees is obvious. Partners of those with pre settled status are included because the Withdrawal Agreement required the UK to treat EU nationals applying under the scheme no differently to British nationals. 

However, partners of people on other visas are not included. This is not a new problem; the joint report from Southall Black Sisters and Eaves recommended in their 2013 review of the DVILR scheme one year on that it should be extended to those on other visas, commenting that “it is still a concern that this concession applies only to very specific group and relatively small group of women. All women in the UK, irrespective of their immigration status, should be entitled to equal access to safety and justice and to be able to access life-saving support and advocacy.”  

Why now? 
The Home Office line has always been – and continues to be – that the scheme is only available to those with a “legitimate expectation” of settling here. In written evidence before the Court of Appeal, the Home Office set it out in this way:

“The rationale for the terms of the DV Rule concession was (and is) that individuals who come to the UK as the spouse or dependant of a partner who is present and settled in the UK will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions concession means that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave. They should also not feel compelled to leave the UK when the reason for being here (to live here permanently with their British or settled partner) falls away through no fault of their own.”

…

“The rationale for the present policy is, as stated above, that those who have come to the UK as the spouse or partner of a person present and settled in the UK (or with refugee status or pre-settled status) have come to the UK in the reasonable expectation of being able to live permanently. They would have an expectation of permanent settlement but for the breakdown in the relationship as a consequence of domestic abuse. But those who have come as the partner of a person on a temporary work or study visa have no such legitimate expectation.”

However, the post-Brexit inclusion of EU nationals with pre-settled status, which is not permanent, meant that there was now a comparator. This was important, because it meant that the Appellant was now able to argue that she was being treated in a discriminatory way regarding her private and family life, contrary to Articles 14 and 8 of the Human Rights Act. To succeed in an Article 14 discrimination argument, a person must show that they are being treated differently by comparison to persons in an analogous or very similar situation. 

What was the case? 
SWP was an Indian national who moved to the UK with her husband when his company moved him to the UK to work. There was some confusion over exactly what type of visa it was, but the case proceeded on the basis that it was a Tier 2 (General) visa. People who come to the UK on a Tier 2 (General) visa do not have an expectation of settlement necessarily, but if they live in the UK with this type of visa for long enough they will be permitted to settle. 

Her husband was violent and abusive to her both in India and the UK. She finally managed to leave the relationship after he sexually assaulted her and tried to suffocate her. She fled with their son to a domestic violence refuge. With her visa about to expire, she tried to find a sponsor of her own to acquire a visa independent of her husband, but as her own profession of primary teacher is no longer on the shortage list, she was unable to find a sponsor. She therefore made an application for the DDVC. 

This was refused because she was not the partner of a person who was settled or British, but the partner of a person with a Tier 2 visa, and she was therefore not eligible. She applied for judicial review of the decision, which was rejected, and appealed to the Court of Appeal. 

What did the court decide?
The Home Office did not agree that the decision was discriminatory under Article 14 although they did agree that it was linked to Article 8 (private and family life). Article 14 can only be relied upon in relation to one of the other Articles; it is not a standalone right. 

The first court had already ruled that there was a sufficiently close analogy between the partner of a Tier 2 migrant and the partner of a person with pre-settled status. 

The crucial issue was therefore whether or not the difference in treatment was justified. 

The Court of Appeal decided that the difference in treatment was justified. The Home Office had a policy reason behind the differentiation and a “wide margin of discretion” is open to the government in choosing its policies on general measures of social strategy. Brexit was a “unique phenomenon” and provided “an objective and reasonable justification for the difference in treatment which now arises under the EUSS.” 

The appeal was therefore dismissed. 

What next?
It is possible that SWP may appeal to the Supreme Court, although even if she won it would be a pyrrhic victory since the Home Office very belatedly realised that her husband was not a Tier 2 (General) migrant on a route which might lead to settlement, but in fact was a Tier 2 (ICT) migrant on a route which very definitely does not. Understandably, she had not had access to his documents and did not know this herself. 

As things stand, there is therefore no DVILR route for those who are victims of domestic abuse but whose abusers are not settled. 

The Home Office approach is unfortunate, because it leaves migrant women very vulnerable to domestic abuse. While some will be able simply to leave their abuser and go back to their home country, this is not always possible for women who are from countries where divorce is a social taboo, or where there are children involved. Bleakly illustrative of this is SWP’s evidence that she could feel compelled to return to her abusive husband if her appeal failed, as she would not be able to afford to educate him in India by herself. There will be many women in similar situations weighing the merits of remaining with an abuser if they cannot remain in the UK if they leave him. Sadly, it seems this is not a situation the Home Office is willing to change. 

Edinburgh University, freedom of speech and the heckler’s veto

Edinburgh University has for a second time allowed protestors to prevent the screening of the documentary film “Adult Human Female.” It was initially to be screened in December 2022, but cancelled when demonstrators occupied the university buildings. The rescheduled showing was arranged for 26 April 2023, but prevented once more by a large group of protestors. 

Protestors blocked off the entrances and physically stopped anyone from getting inside. The event was once again cancelled.

The protestors of course regard this as a victory for the prevention of intolerance. A spokesman told the Times that 

“Their argument is that trans women are the problem and are men in disguise and that is a lie. It is tarring a whole community and demonising them. Free speech is fine for everybody but it does not extend to the intolerant and hateful.”

There is nothing in this quote to suggest that the spokesman had in fact watched the film. But what is more remarkable is the spokesman’s claim that free speech “does not extend to the intolerant or hateful.”  

As we have said before, the relevant provision is Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows: 

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the first three paragraphs of his judgment in R (Miller) v College of Policing & CC Humberside [2020] EWHC 225 (Admin), Julian Knowles J summarised three famous citations on free speech: 

  1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
  2. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said that: “… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
  3. Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
    “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having  … “

That of course does not mean that freedom of speech is unlimited. It may be limited where a legitimate aim is pursued, although as was said in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127,

The existence of a broad legitimate aim is a mere threshold to the key decision in this case, as in almost all cases it must be. Such a legitimate aim must have limits. It cannot extend too far. In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.  

This is particularly so when the speech in question, here the film Adult Human Female, is itself an expression of protected views. 

Proportionality is key to any decision to limit free speech. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at [49]:

“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

There are two issues here, in terms of freedom of expression (I am not considering here the law on academic freedom, but only human rights. For those wanting further reading around academic freedom, the law in England and Wales can be found here and Scottish law here.) 

The first is whether the film Adult Human Female really is as offensive as the protestors claim. That in my view is inconceivable – it discusses proposed changes to the law from the perspective of one of the affected groups, namely women. 

The second is that even if a sector of the population disagrees with it, feels personally affected or is offended by it, this intimidation is disproportionate and anti-democratic. A protest that does not prevent the event from taking place must be possible. 

It is noteworthy that one of the groups who are highlighted as anti-democratic in the film are UCU. A number of the academic interviewees express disbelief that a union for those whose lives are dedicated to the pursuit of knowledge should behave in such an anti-intellectual way. I do wonder whether UCU’s enthusiastic support for the protests in Edinburgh is to spare its own blushes should their students watch the film and find out how spineless their tutors are when faced with intellectual disagreement. 

Freedom of expression is valuable. If the protestors’ freedom of expression were similarly impaired by mob justice, they would be outraged. They should be careful what they wish for. 

Film Review: Adult Human Female

In the wake of Edinburgh University’s second cancellation of a proposed screening of the Adult Human Female screening, one of the Legal Feminists went to watch it.

Which is pretty easy, as it is online and on YouTube. 

Certified by the BBFC with a 15 rating, it features interviews with a number of women (and one man) who hold concerns over the conflict of rights between women and transgender people in light of legal and social developments of the last few years, and in particular over proposals (dropped in England and Wales, but still live in Scotland) to amend the Gender Recognition Act to make it possible to get a GRC without a diagnosis of gender dysphoria. The most notable of those is the proposal in England and Wales (now dropped) and in Scotland (still live) to allow a person to obtain a Gender Recognition Certificate, and thereby a new legal sex, by simple self-definition.

The intention is to streamline the system for those who are put off by the bureaucracy involved in obtaining a Gender Recognition Certificate but who would otherwise plainly be entitled to one.

The difficulty is that this benevolence then includes people who do not have a Gender Recognition Certificate, not because they have never applied but would otherwise qualify, but because they very plainly would not qualify under the current provisions. The last ten years have taught us that it is almost impossible for service providers to distinguish between the two, not least because it has been impressed upon them that it is impolite or impermissible to ask. This may once have worked when the only males who would seek to access female services were a tiny, discrete group of transsexuals. That finely balanced compromise is displaced by self-definition, which extends to a much wider group.

The Adult Human Female film features interviews with women who argue – in the most moderate terms – that this creates a conflict of rights. 

I have to say, from the fuss that the film has created, I was rather hoping to see something considerably more seditious than a doctor saying that biological sex can affect medical treatment; a professor of criminology talking about statistics in prisons; and a barrister talking about the law. If I have a criticism of the film, they can only be that it is unexciting compared to the hype. That one interviewee referenced the Equalities [sic] Act (pet hate). And, perhaps, that Prof. Phoenix could have made it clearer at the outset of one segment that she was talking about trans prisoners, when she gave the statistical analysis, rather than the entire trans population in the community (although the context was rapidly made clear). 

The interviewees all take a left-wing approach to the topic. They look at the effect on women not individually but as a class. What is the effect on women as a class if single sex becomes mixed sex? In particular, on vulnerable women in prison, in refuge, in crisis. 

The film makers do not exclude the possibility that trans people may also need crisis support and emphasise that support services to trans people should be maintained. One issue which is raised – but not resolved – is that at the point of introduction of the GRA it was only ever imagined that those who would be encompassed in the category of legal (rather than biological) women were those who suffered severe gender dysphoria and who underwent surgery. Parliament simply did not envisage that this easily identifiable and discrete category would expand to include what Prof Phoenix described as a “gossamer” of cross-dressers, demi-girls, and anyone else who says they feel female – including inevitably men who do not have gender dysphoria. As Elizabeth I could have warned 2004’s legislature, it is not possible to make windows into men’s hearts. 

Does that original category, for whom the GRA was introduced, still need its  protection? Is it proportionate to jettison their protections because members of a much wider group are now seeking to claim those protections? The film does not explore this, no doubt because it is a film made by and about women, but it would be an interesting topic for a post screening discussion. 

What does come across strongly is criticism of those who seek to stifle any political discussion on the subject of evolving and fast-moving legal developments which affect us all. UCU come in for a well deserved hammering: their hyperbolic demonisation of critics is said to be in direct conflict with academic freedom. If academic sociologists can’t critique social issues, asks Dr Jane Clare Jones rhetorically, then “what are we for?” Quite. 

I combed through this film seeking out offence, given the protests. Not every viewer will agree with every interviewee – I certainly didn’t. But each of them gave me food for thought. I is risible to suggest that any one of them was “hateful” or that the film is so subversive as to be worthy of blocking. Any undergraduate who has academic ambition – particularly if it is towards law – should think very seriously about the difference between distaste and illegality. It is a topic which has been known to come up at pupillage interview. 

Is this really necessary, Minister?

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

Politicians are always inclined to fall for the “If all you have is a hammer, everything looks like a nail” fallacy. The almost instant reaction to any problem in the public eye or if you want to look serious about an issue or to show that you really really care is to propose a new law. 

In recent days, Labour have proposed a law making spiking a criminal offence, even though there are existing laws which could be used. They plan to ban “conversion therapy”, though it is wholly unclear what this term means. The Tories are trying to pass a law against small boats in the Channel. The Bill of Rights (introduced under Raab, dropped by Truss, reintroduced by Raab again) is back on Alex Chalk’s desk. 

This last Bill is a classic example of a solution in search of a problem. It has been presented as a necessary reform. In reality, there have – since 2010 – been 4 reviews, all of which found no “compelling evidence of a problem” or “viable proposals for reform”. The Bill has been eviscerated by the joint Parliamentary Human Rights Committee’s report – here. Even a previous Tory Justice Minister (Robert Buckland) said the proposed Bill was pointless and a solution to a problem which no longer existed, if it ever did.

This last comment goes to the heart of why so many proposed new laws so often achieve little – and can do great harm.

When should a new law be introduced? And why? 

Those wanting a change should show:-

  1. The mischief they seek to address or the improvement that is needed. “What is the problem to which this is the solution? Be  precise in your answer” should be the first two questions asked of any politician proposing a new law. Too often they are never asked. Or, if asked, the answer is no more than “Something must be done. This is something. Therefore we must do this.”
  1. What are the real causes of that problem? If the causes are not legal ones, a legal solution is not going to be the answer. What will it improve and how? Too often, a new law is doing for the sake of doing. Or more often appearing to be doing.
  1. Can this issue be addressed by existing laws or other measures? We have enough of the bloody things on the statute book, after all.
  1. Is the problem sufficiently serious to warrant change? Partly this is a matter of priorities. But some problems are ones which cannot easily be solved or at all, are inherent in the tensions between conflicting interests. A bit of realism to counter the “There should be a law against it.” tendency in voters and politicians is needed.
  1. Will legal change resolve or alleviate the problem? Will it create other problems instead?
  1. Is what is proposed a proportionate way of resolving the problem. Not all problems can be resolved or only at an unacceptable cost.
  1. What are the consequences, especially the unintended ones? Do they harm the interests of others? If so, how badly? Can these be easily mitigated? If not, is it really worth going ahead or are there other measures which might work better?
  1. Is this consistent with other legislation or initiatives the government is enacting? This may be unduly hopeful but some attempt at consistency and joined up thinking would be welcome.
  1. Finally – and critically – how is this going to be implemented / enforced? If there are no or few resources to back up the new intentions, what – really – is the point? 

Is a pointless / ineffective law harmful?

Does it matter? Yes. Pointless law-making – the passing of Potemkin laws –  creates or reinforces cynicism about politics and a disregard for the rule of law, especially when it is seen as ineffective. Above all, it diverts attention and effort away from practical and effective problem-solving measures.

The desire to be seen to be doing something often seems to be the only important consideration. Consultation is put forward as a justification. But too often consultation starts from the assumption that something must be done and avoids a clear-sighted analysis of what the problem actually is and whether anything should be done. Or, more cynically, a cover for unclear / unpopular proposals (“We are going to consult on these proposals” = “We know they aren’t popular but we’re going to implement them anyway.”)

It’s as if what matters most is not effectiveness but the appearance of busyness. Ironically, this simply creates more work for lawyers and judges to try to sort out the mess thus created, more material for politicians to grumble about, more cynicism among voters, more proposals – and on it goes. It’s law-making as Escher might draw it.

Ten easy steps to the perfect hearing bundle

Bad bundles have been a cause of pain and frustration for courts and advocates for many years; see e.g. Sedley’s Laws of Documents. But technology provides new and creative ways to turn a simple set of documents into an instrument of torture for all concerned. The bundle in Allison Bailey’s employment tribunal sounds to have been a masterpiece of the genre (with thanks to Tribunal Tweets) ​​: 

Ben Cooper QC (as he then was) in Allison Bailey v Garden Court Chambers and Stonewall

Bundling is an awkward task. It’s drudgery, so it’s tempting (and often unavoidable, for reasons of cost) to delegate it to someone very junior. But it’s tricky drudgery involving lots of little decisions that are hard to get right if you’re not an experienced litigator. No wonder it often goes badly wrong.

This is a blog about how to make the perfect hearing bundle, and how to make the process of making it relatively painless. (It’s not intended for lawyers involved in big-ticket commercial litigation: they will have fancy and eye-wateringly expensive document management software, and they are big enough and ugly enough to look after themselves.) 

The key insight here is that preparation of the bundle begins months – possibly years – before the hearing. 


It goes like this. 

1. Create a folder on your computer. Call it “draft bundle”. 

2. Every time you generate or receive a document that may ultimately need to end up in the bundle, do the following:

(i) save it as a PDF if that’s not the form in which you have it already;

(ii) check that it it is fully searchable, and if not, OCR it – you can do this in Adobe Pro from “Scan & OCR” on the Tools menu or in PDF Expert from the “Scan & OCR” tab at the top of the page;

(iii) give it a name (see step 3), and put it in your “draft bundle” folder.

(Try to get disclosure from the other side in the form of a file of separate documents, preferably in their native file formats. Metadata is part of a document, and disclosable as a matter of course – and may be interesting in its own right – so you’re entitled to this. Turn each document into a PDF before saving in your draft bundle folder, saving copies of the original documents elsewhere. If some of the disclosure arrives in the form of PDFs containing a number of documents, split them up into separate documents first. You can do this quite fast by inserting bookmarks in Adobe Acrobat, and then splitting the document by bookmarks. Use the file name convention at point 3 below for your bookmarks, and Adobe will use the same bookmark names to name the individual files.)

3. Give each document a name. If it’s a document whose date is or may be part of the “story” of your case, prefix its name with its date in reverse order. So if it’s an email from Angus Beattie to Cordelia Diamond sent on 14 April 2020, you might call it 2020.04.14 AB-CD. The point of this is to force Finder or File Explorer to sort your dated documents in date order. If there’s a section of the chronology where it may matter in what order things happened on the same day, you can put the time as well, to force sorting in order within a particular date: 2020.04.14.09.33 or 2020.04.14.09.33.

(I like very spare indexes, so if I’m in charge of the bundle, emails will have names as short as 2020.04.14 AB-CD. But you could make the names a little more informative by adding the subject-line, e.g. 2020.04.14 AB-CD FW: Re: Grievance meeting. But whatever you do, don’t attempt a description of the document that is anything other than its name or its subject-line – if you do, you’ll get into endless tussles with the other party about whether your names are tendentious.)

You may have a few documents that are part of the chronological story, but which are undated. In those cases, I’d suggest making a guess at the most likely date and saving with a filename that indicates your estimated date, and the fact that it’s a guess. So maybe something like “2021.01.04 EF -GH est. date”.

4. Email chains are a bit of a pain. Divide them up and reduce duplication as much as you reasonably can, and label each short chain with the date of the message at the top, but don’t stress unduly. Everyone’s used by now to reading email correspondence in a slightly back-and-forth way. 

5. For other documents, choose some naming convention that works for you – it’s less critical. You might prefix the pleadings, tribunal orders etc that you’re going to want at the beginning of the bundle “000”, things like policy documents and procedures “POL”, anything you’re not yet sure to do with “Q”, and so on. 

6. Carry on doing this through the life of the case – do it with the documents your client gives you, the pleadings, orders from the court or tribunal, everything you get from the other side on disclosure. You’ll need to be quite disciplined, but your future self will be grateful.

7. When your collection is complete and you’ve fiddled with file prefixes so that the documents are in the order you want, deleted duplicates, moved irrelevant documents out etc, merge all the files in Adobe Acrobat. You’ll find Acrobat has used your filenames as bookmarks. (I expect there are other programs that will do this, too, though so far as I have been able to discover, PDF Expert doesn’t. I prefer PDF Expert for most purposes, so I just switch between the two.) 

8. Next, to make your index, you need a text list of the files in your draft bundle folder. In Finder, open your draft bundle folder, highlight the top file and then using the shift key highlight the bottom file – this should highlight all files in the folder in blue. Then press Command+C (or in Windows, ctrl+C) to copy them.

9. Launch a text editor – e.g. TextEdit on a Mac, or Notepad if you’re in Windows – and make sure that you have “plain text” chosen – in TextEdit, that’s in the “Format” menu. Paste the file list from your clipboard: on a Mac, command+V. (Or you can skip the step about choosing “plain text” if you know how to paste in plain text – shift+option+command+V on a Mac.)

10. Copy your file list into a Word document and edit to remove all the “.pdf” suffixes. You can do this easily with search and replace, replacing “.pdf” with a space. This is the guts of your index.

11. Format your index, save it as a PDF, and stick it onto the front of your merged bundle.  

12. Open your merged bundle in your preferred PDF viewer and add page numbers. Ideally, number the index pages in lower case Roman numerals, and start pagination proper on the first page of documents.

If your preferred PDF viewer is PDF Expert, you choose “Add Page Numbers” here:  

13. Add the page numbers to your index. I think this is the bit you’ll have to do manually – but it’s just a matter of skipping through your bundle bookmark by bookmark and writing in the page number for the start of each document, so it’s not too terrible even for a large bundle. And it’s easy and requires no decision-making, so you can safely give it to someone very junior so long as you trust them to take care to do it accurately. (If you have Bundledocs – and probably other programs like it – it will do this bit for you.)

14. Turn your index page into a PDF, and add it to the front of your bundle.

15. Tweak page labels on your PDF so that the electronic page numbers align with your pagination. (You can do this in Adobe Pro from the “Organise Pages” menu under “Tools”.)

16. Add hyperlinks from the index through to the first page of each document. (Again, I think Bundledocs will do this for you, if you have it.) This is fiddly but easy, too. In PDF Expert, it’s here:

17. That’s it. Congratulations, you have made a perfect bundle. It was actually 17 steps, but apparently for clickbait reasons 10 is a better number, so I lied. Sorry.

This method has the following advantages, over and above the perfection of the end result: 

  • Front-loading the fiddly stuff. Putting together a bundle from scratch a few weeks before the hearing is time-critical anxiety nightmare. The fiddly stuff can’t be avoided entirely: giving every damn document in the bundle a backwards-date-format filename is undoubtedly fiddly. But it’s fiddling that can be done a bit at a time over a long period. 
  • The final stages are pretty easy, so adjusting your bundle at a late stage isn’t very painful. 
  • Your draft bundle folder will be a useful reference source as the case progresses. 
  • You can annotate and highlight the documents in your draft bundle folder freely, because it’s easy to strip annotations from the bundle once compiled but before sharing with the other side. 
  • This means you can share your draft bundle folder with counsel, and she can start marking it up. So if agreeing the bundle with the other side proves fraught, your barrister isn’t jumping up and down with impatience and hassling you while you’re trying to deal with that – instead she’s serenely marking up documents and preparing cross-examination notes, secure in the knowledge that all her markings will appear in the finalised version of the bundle when it reaches her.

Post-script

It has been objected that if the barrister has access to the draft bundle folder and starts marking it up, the solicitor can see her work in real-time. I’m not sure how real a problem that is (I suspect most solicitors will have better things to do than monitor counsel’s preparation in this way) – but I can see that it could give you an uneasy sense of being under detailed surveillance, at least potentially.

Fortunately, there’s an easy answer. Get your solicitor to share the draft bundle with you. When you get to the point where you’d otherwise be screaming for a finalised bundle to start work, make a private copy, and start marking that up. Get your solicitor to tell you when they’ve agreed the contents of the bundle and are about to compile it – and at that point, if you want to, you can copy all your marked-up documents back into the shared folder. Choose “replace”, and your marked-up copies will replace their unmarked twins – but the folder will still contain any documents that have been added since you made your copy.

Red tape or essential protection? Third party harassment revisited.

The Worker Protection (Amendment of Equality Act 2010) Bill currently proceeding through Parliament and predicted to become law in 2024, raises some subtle questions about the relationship between protection from harassment and freedom of speech. 

When the Equality Act 2010 was passed, it included provisions outlawing third party harassment and  providing a legal claim against an employer by an employee who suffered harassment by a third party such as a customer, client or visitor.

These provisions were criticised at the time as unduly complex, in particular, for the fact that they required the employee to have suffered two previous incidents of harassment at work. The provisions were rarely used. But rather than amend the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of  the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.

There remained some scope to bring a claim for third-party harassment under section 26 of the  Equality Act on the basis that an employer’s failure to prevent harassment by a third party is itself harassment. But  

in Unite the Union v Nailard [2018] EWCA Civ 103 the Court of Appeal held that to succeed in a claim of this kind, the claimant must prove that the employer has a discriminatory motive for failing to take action.That will rarely be possible. As a result, employees were left relatively unprotected in this situation.

A few years after the Red Tape Challenge, the #MeToo movement brought workplace harassment into sharp focus, including harassment by clients and customers to workers . This included undercover reporting by the Financial Times of  a notorious charity fundraising event at the now closed Presidents Club in 2018 , where the hostesses were reportedly groped and sexually harassed by rich and powerful men.

In 2018, after a call for evidence, the EHRC published a report called “Turning the tables: Ending sexual harassment at work”. The report found that third-party harassment is a particular problem for people in customer-facing roles, with around a quarter of those reporting harassment saying that the perpetrators were third parties. They also found that third-party sexual harassment was dealt with poorly and was viewed by some employers as a ‘normal’ part of the job. 

It recommended amongst other steps that:

·      the UK Government should introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.

·      Breach of the mandatory duty should constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission. 

The Government announced it supported the recommendations, and  backed a Private Members’ bill. 

Under the new law, when it comes into force (likely to be in 2024),  

an employer will be liable if a third party harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent them from doing so. The provision is not limited to sexual harassment and so covers the other relevant protected characteristics as well. 

A new duty will also require an employer to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. Breach of the duty will be an unlawful act, enforceable by the Equality and Human Rights Commission. There will be a Code of Practice setting out what reasonable steps should be taken.

Although employees will not be able to bring standalone claims specifically for breach of the duty to take reasonable steps to prevent sexual harassment, if an employee is successful in a claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty, it will have the power to award an uplift in compensation not exceeding 25%. 

These are largely positive developments which should reinforce the obligations on employers to protect their employees and plug an important gap where employees are at risk of third party harassment. 

However concerns have been raised about the scope of the provisions in the context of free speech.

The Government has proposed an amendment to the Bill so that employers will not be liable for workplace harassment (other than sexual harassment) in circumstances where that harassment arises as a result of a ‘protected conversation’: one which involves the expression of opinion on a political, social, moral or religious matter, in which an individual is not a participant. In effect, this intends to exclude overheard conversations where a personal view is expressed. This amendment has been proposed with a view to addressing concerns about how the Bill, as previously drafted, might curtail the legitimate expression of free speech.

Despite this proposed amendment, the solicitor James Murray of Mishcon de Reya, a specialist in law related to Higher Education and academic freedom has raised concerns whether the change in law  will still negatively affect academic freedom on campus, with officials using the excuse of the third party liability to disallow controversial academic speakers on campus

Obviously, this Bill is not yet law, and there may be further amendments. But the lesson from the Red Tape Challenge is one that this Government (currently engaged in potential mass repeal of EU legislation via the Retained Law (Revocation and Reform) Bill 2022 (also proceeding currently through Parliament) would be wise to learn. 

Is this or any law red tape or essential protection? I welcome this long overdue protection from third party harassment but great care needed to ensure the right balance to protect free speech.

Stating the Obvious

This is not a blog post which explores fundamental truths of the human condition or even one which traces a pathway through legal complexities. Rather, it looks at the law in practice.

Regular readers of this blog will know that paragraphs 27-28 of Schedule 3 of the Equality Act 2010 permit a service provider to offer a single sex or separate sex service. Paragraph 28 in particular allows a service provider to discriminate on the grounds of gender reassignment. For the purposes of women-only services and spaces, it is generally understood that this means that a women only service may exclude all those who are biologically and legally male by virtue of paragraph 27, and may (if proportionate) exclude biological females who are legally male and biological males who are legally female by virtue of paragraph 28. There remains some discussion over whether “blanket” policies are permissible and whether paragraph 28 should be applied person-by-person or policy-by-policy, but the overarching principles are those.

In recent times organisations which hold their line on single sex services have been viciously targeted. The rat nailed to the door of Vancouver Rape Relief, the smoke bombs set off outside the WPUK meeting held near to Grenfell Tower, the violent and sexually aggressive imagery chalked on the pavement at FiLiA. 

This is a question for those who attend, or organise, such protests. If you heard that a women-only self-defence group had refused entry to a transwoman who approached them saying she was fearful of violence because of her gender and wanted to learn to defend herself, would you protest that organisation? Would you denounce them on social media? Organise a boycott? You’d probably want to write to all of their funders to try to have their funding withdrawn, at the very least, and notify the local council – wouldn’t you? Perhaps you could persuade the Good Law Project to bring a legal case against them? 

If the centre argued that their classes were for women who had suffered domestic or sexual violence, that wouldn’t change your view in the least, would it? After all, transwomen can also suffer domestic or sexual violence, and any woman who is triggered by the presence of a male-born person just needs to reframe her trauma, right? 

This is not a hypothetical scenario. In 2021, the Scottish Centre for Personal Safety declined to admit Annie Bryson to their women only self-defence course offered to survivors of domestic or sexual violence. But before anyone goes to organise a protest, there’s some additional important information to know.

In 2016 Annie Bryson – then Adam Graham – raped a woman. In 2019, he raped another woman. In 2021 he tried to access this course – a course for survivors of male violence where he would presumably have learned what techniques women use to fend off rapists, while triggering a trauma response among any survivors there. (The same year he enrolled on a beautician course which involved women removing their clothes to practise spray tan procedures on one another. Would-be protestors can pat Ayrshire College on the back for their admirably inclusive policy.)

In 2023 he was convicted of both rapes. His ex-wife said that she thought he was “bullshitting” his claim to be transgender, which had only developed after he was arrested for the rapes, and even that arch-proponent of self-ID Nicola Sturgeon can’t quite bring herself to call him a woman, saying “She regards herself as a woman. I regard the individual as a rapist.” 

It might be tempting to say – well, what’s wrong with that? The individual IS a rapist.

He is. But for the purposes of the criminal justice system, between 2016 and 2023 he was Schroedinger’s Rapist: he had committed rape but he was not convicted of rape. 

What motive could a double rapist have for wanting to join a class for survivors of sexual violence and learn what techniques they would use against a predator? What motive could a double rapist have for wanting to join a class full of semi-clad women applying beauty techniques? The answer is surely obvious on both counts. 

Now that Adam Graham / Annie Bryson / Isla Bryson has been reallocated from the women’s estate to the men’s estate, there seems to be a grudging acceptance that he isn’t “really” trans. After all, he’s a rapist. 

The problem for the protestors is that he wasn’t – in law – a rapist until he was convicted. 

If the protestors had their way, Adam Graham would have been welcomed in to any women only service he chose to attend. That in itself should be explanation as to why some services, particularly those where women are undressing or where they are survivors of male violence, want to exercise their right to remain female only under the Equality Act exceptions. It should take a lot more than a chalk willy on a pavement to persuade anybody otherwise.